SII Focus 7th August 2017

Worley’s case opens the courts to athlete human rights cases

On 18 July, the Human Rights Tribunal of Ontario recognised that policies originating from the International Olympic Committee (IOC) had infringed the human rights of Canadian cyclist Kristen Worley. Whilst the agreement recognises that sport’s unsubstantiated policies have needlessly harmed XY female athletes, its real significance is that it could allow other athletes whose human rights have been infringed to stake their claim before a court of law.

Whilst the Human Rights Tribunal of Ontario has been used to challenge the decisions of Canadian sporting bodies before, Worley’s case is understood to be the first time that an athlete has managed to get an international sporting federation (the International Cycling Union – UCI) to accept its jurisdiction. In this respect, Worley has succeeded where Claudia Pechstein arguably failed, although not without a significant battle. Pechstein chose to compete following the conclusion of her ban, whilst Worley had to walk away from sport for three years to fight her case. Even after a 16-year battle, the IOC litigated its way out of appearing as a defendant in Worley’s case on a jurisdictional issue, in an attempt to let cycling’s governing bodies take the blame for its policies.

There are similarities between the two cases. They both involve athletes who were excluded from sport due to scientific inaccuracies in sport’s policies. Worley’s case could benefit Pechstein, who is deciding whether to take her case to the European Court of Human Rights (ECHR).

“It’s pretty cool!” states Worley when asked how ending such a long battle feels. “I’m just processing right now. Honestly, I don’t know how to feel. For us to get to this point was such a long process. The mediation brought a 16 year fight down to hours and minutes. What a lot of people don’t understand is how much was at stake in that process. Coming out of the mediation process, everybody was physically exhausted.  After it was over, everybody that took part was very conciliatory to each other. I think we all realised how important this was.”

History of Worley’s case

Kristen Worley

Worley is an athlete who was an XY male and transitioned to become an XY female 20 years ago. She is not transgender, as she has undergone medical procedures to become female. The history behind her complaint has been examined in detail by The Sports Integrity Initiative before, however here is a brief recap.

In 2009, Worley applied for a Therapeutic Use Exemption (TUE) to use synthetic testosterone, as her body could no longer produce the amount her physiology required. This is because in XY males, testosterone is primarily produced in the testicles, and Worley had undergone a dual-gonadectomy. “My physiology is very different from somebody who is transgender, because my body doesn’t generate hormones”, she explains.

Her TUE took ten months to grant, and the levels of synthetic testosterone it allowed her to take were not enough to support even basic levels of health, let alone the levels required by an elite athlete. Worley’s TUE permitted her testosterone levels of 0.5nmol/L, below the normal testosterone range for non-athletic XX females of 0.52nmol/L to 5.6nmol/L. At 9.6nmol/L, Worley goes into spontaneous menopause and complete androgen deprivation.

It is important to point out that testosterone is not exclusively a male hormone. It is produced by both XY males and XX females in the testicles and ovaries (and also in the adrenal glands), however males need to produce it in higher quantities for it to be taken up by their XY androgen receptors. XX androgen receptors are known to be highly sensitive to testosterone, requiring much less testosterone to equate the same level of health.

However, both male and female elite athletes also produce testosterone in higher quantities than the ‘normal’ population. There is also a significant amount of overlap between testosterone levels in male and female elite athletes. An XY male who transitions to XY female has had their major source of endogenous testosterone (the testicles) taken away, so needs to take synthetic testosterone in order to maintain basic health.

Worley was forced to withdraw from cycling in 2009. The levels of testosterone mandated by her TUE induced – and kept her in – a severe post-menopausal state, and affected her ability to train and maintain any form of adequate health to compete in elite cycling.

“This case recognises that my human rights have been violated by IOC policy that was implemented through the Olympic and sporting movement”, explains Worley. “It also recognises that they understand that there is no science and research behind these policies that are being used to determine athletes’ gender.”

“In my case, I was gender tested”, she explains. “Panels were put in front of me to determine my gender, and it has been acknowledged that these people knew nothing. They felt empowered through the policies of the IOC to be able to do that to me. They also felt that they were qualified to do that to me. The scary part is that there was a real feeling that I actually deserved it. They asked me why I was interested in competing, why I had to compete. I had these discussions with members of Sport Canada, CCES [Canadian Centre for Ethics in Sport], and the UCI.” They created a five page report concerning Worley’s gender evaluation, which was eventually sent to the UCI with all her private medical reports and evaluations, which were later approved by the UCI Medical Chairman Dr. Mario Zorzolli.

A 2004 Explanatory Note (PDF below) to the Recommendation on Sex Reassignment and Sports perhaps illustrates why it was felt necessary to ask such questions. ‘Although individuals who undergo sex reassignment usually have personal problems that make sports competition an unlikely activity for them, there are some for whom the participation in sport is important’, it reads.

“In my case, the three TUE scientists led by Dr. Andrew Pipe, a cardiologist, had no clue what they were doing”, argues Worley. “Yet they put themselves in positions that indicated they knew what they were talking about. They did not. This is part of the problem with the sport umbrella. As an athlete, first of all you don’t know who these guys are. At the same time, you are told that this is the system and that these parties know what they are talking about.” Upon eventual approval of her TUE 10 months later, the CCES went outside of its own mandate under the World Anti-Doping Code, and tested Kristen not twice a year which is the set maximum, but bi-monthly over a period of one year.

As Worley’s case progressed, she says that the questions became threats in the form of letters and phone calls from the IOC and WADA. “They knew they hadn’t done the science or research, so they threw that back at me as my responsibility. Yet they were the ones dictating policy on this, knowing absolutely nothing! It became a circle of negligence. Due to the autonomy of sport, there is no accountability to the actions of the individual. In the real world, that would never happen.”

“As part of the mediation process, we recognised that these talents don’t exist in the anti-doping process”, she explains. “They don’t have the science and the research to set criteria to help support athletes in this space”.

The closed world of sports justice

Worley’s case has opened the floodgates for other athletes, as sport has now accepted that some cases can be heard outside of its closed system. The significance of this is huge and could significantly affect the future of international sports law.

Although sport would argue otherwise, the sporting justice system does appear to be weighted against the athlete. When agreeing to compete in elite sport, participants must sign the Athlete Agreement. As an example, Article 68.2 of the FIFA Statutes prevents recourse to ordinary courts of law, as does Article 11 of the International Triathlon Union (ITU) Athlete Agreement; as does the German Alpine Association (DAV) Athlete Agreement and many more.

The origins of this are in a Bye-law 6 to Article 44 of the Olympic Charter, which reads as follows: ‘All participants in the Olympic Games in whatever capacity must comply with the entry process as prescribed by the IOC Executive Board, including the signing of the entry form, which includes an obligation to (i) comply with the Olympic Charter and the World Anti-Doping Code and (ii) submit disputes to CAS jurisdiction’. Why this is the case is harder to explain and more difficult to justify.

This position has been strengthened by Article 13.2 of the World Anti-Doping Code, which requires any signatory to accept the jurisdiction of the CAS. The origins as to why such recourse is prohibited lie in a nebulous concept called the ‘specificity of sport’.

According to the European Commission, the specificity of sport ‘refers to the inherent characteristics of sport which set it apart from other economic and social activities, as recognised in the amended Treaty of the European Union in 2009’. The Treaty on the Functioning of the European Union (TFEU) states that the European Union ‘shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and educational function’.

The Court of Arbitration for Sport (CAS) is governed through the International Council of Arbitration for Sport (ICAS), which consists of 20 members appointed by sport. The 275 CAS Arbitrators (2007 figures) are appointed by ICAS for four years, but are ‘appointed at the proposal of the IOC, the IFs and the NOCs’, according to a history of the body. It also ‘receives and manages the funds allocated to its operations’. The IOC’s Annual Report reveals (p142) that in 2016, it contributed US$7.6 million to the funding of the ICAS.

Further information on how ICAS is funded is scarce. It is understood to be funded by Olympic organisations (IOC, ASOIF, AWOIF, NOCs) and by private parties, based on usage. As a general rule, the CAS tends to publish judgments that have gone in favour of sporting organisations, and not those that have gone against sport.

To put this in simpler terms, an athlete bringing a case before the CAS faces a body which is staffed and funded by sport. The athlete’s lawyer is also disadvantaged by not having readily available information on all the previous cases that have gone against sport, which are available to the CAS and the sport that lost the case.

As its history reveals, the CAS was originally established in 1984 to resolve disputes ‘directly or indirectly related to sport’. Since then, sport has become increasingly commercialised. Today, a top footballer can command wages of €30 million per year, more than WADA’s €23.6 million 2017 annual budget. With the introduction of the 2015 World Anti-Doping Code, the starting point for a ban became four years.

When so much is at stake, it is perhaps remarkable that it has taken so long for an athlete to take a case outside of the closed system. However the threat of removal from competition is what has kept such complaints at bay.

“I had to walk away from my career for three years, and go outside of the sporting system to do this”, explains Worley. “Sport counts on this. Very few athletes will give up their career. Under the system that exists today, they will take the lumps because they don’t want to give up their careers. This is an exceptional moment that has put an accelerant on the situation. No athlete should have to remove themselves from sport. Athletes are currently in an incredibly vulnerable place.”

Setting a precedent

Worley’s case is the first in which sporting bodies have acknowledged a judgment taken outside of that closed system. That is why it is so important – it sets a precedent allowing other athletes with human rights complaints to do the same thing. Worley says that the IOC told her if she was successful in her case, it would take away its autonomy in sport, allowing other athletes the ability to sue in the civil courts. This is why sport so fiercely resisted her claim and for so long.

“We created this idea of a sports ombudsman”, explains Worley. “A body that is separate from world sport. Obviously, the Court of Arbitration for Sport (CAS) in Switzerland is not the right place to have these conversations. The CAS internal lawyers told me five years ago that the CAS and mediation system is not set up or appropriate for these cases to be heard. They told me that the CAS is about contracts and anti-doping, citing two specific cases. We were able to show through the court process here in Toronto that the IOC, specifically, was trying really hard to get me back into the sports courts, because there they can control the content, the language, away from the public. They would hold power over me because they own and run the system.”

The IOC hired one of Canada’s top litigators, Ronald Slaght, to find a way out of appearing in the mediation. Ultimately, they were successful on jurisdiction, but not on the contents of the case. However the fact that they saw this as a victory is not lost on Worley.

“They were throwing the UCI, the Canadian government and Canadian cycling to the wind, and making this their problem”, she explains. “However, they all acted on IOC policy”.

Ultimately, this is what drove Worley on to proceed with her case. The fact that other athletes had suffered under the IOC’s policies and unless she took a stand, such suffering would continue to happen in the future.

“The UCI will now internally research and develop its policy content, which we will then be able to take to WADA and the IOC”, she explains. “We will be able to present this to them and have discussions with them, whereas they weren’t willing to do that before. They now have to do that. They can’t run from it. We now have a court outside of Switzerland that has recognised that harm has been done by these policies and, specifically, that harm has been done by IOC policy in world sport.”

“What we illustrated in Toronto is that I made them equals through the court process”, continues Worley. “I took their power away. They were scared to death about the world seeing that. They had no science and research to come to the table with, so they were just trying to reduce the impact on their position. The IOC told me that if I was successful I was going to ruin the Olympic movement, and that other athletes were going to sue them. We wanted to make this public, so that the world can know what has happened.”

Deer in the headlights

This is a phrase that has been consistently used by Worley to describe sport’s reaction when confronted with the scientific realities of her case. There were five teams of lawyers that took part in the mediation – none were experts in sports law.

“Nobody has been here before”, states Worley. “As we moved through the mediation, we were all trying to figure out how one thing would lead to the other, and how we could advocate moving forward as a collective. There are steps we can take at national level in Canada and internationally, but we had to figure out how the two would connect. One of the things that Canada does particularly well is human rights and diversity. There’s a real leadership opportunity for our country to become the international voice to help advocate general diversity within the global sports system.”

Worley said that she had to keep the wider goals in mind throughout the process, and turn around her anger at how she had been treated into something positive that could benefit athletes in the future. “I had to get away from the politics of all of this”, she explains. “I knew that I had the best scientists in this genre sitting behind the scenes with me. I knew that I’d win the case.”

“I had to turn around in my head the harm that had been done”, she continues. “These associations are run by a new generation now. They are not the ones that did the harm to me personally. But they did recognise what had happened. I had to flip that anger around. I could have been that athlete who said: ‘you did me harm, you did me wrong, you did all these horrible things to me’. But I’m at the end of my career. The issue is that my journey became about much more than just riding my bike.”

In 2008, former President of the UCI, Hein Verbruggen, apologised to Worley for the harm that had done to her career, and for not protecting her. “That was a big turning point for me”, she says. “He pointed out that what I am doing far exceeded that of a professional cycling career.”

House of cards

Worley argues that by ducking out of the mediation process and allowing cycling to take the blame for what are, essentially, IOC policies that were implemented by the UCI and Cycling Canada in turn, the IOC has put itself in a vulnerable position. “Human rights violations have been recognised, but the IOC weren’t there as a party. The IOC can’t say sorry or change their policies. If they do, they only set themselves up for litigation.”

“She is a woman, but maybe not 100%” – The IAAF’s 2009 view of Caster Semenya

And that is something that they should be seriously concerned about. The harm done to Worley is obvious. Her XY body needs a much higher level of testosterone to maintain normal function than an XX body, and her main organs (testicles) for producing that testosterone have been removed. The IOC policy, implemented by cycling, induced a severe post menopausal state and made sport impossible. But harm has also been done to other athletes.

Although Worley’s case specifically concerned the IOC’s 2003 Stockholm Consensus, which specifically applies to athletes transitioning to become XY females, it is also likely to have a knock-on effect on the IAAF and IOC Hyperandrogenism Regulations. They were implemented by the IAAF in 2011 (PDF below) following outrage at a gender test being conducted on a 19 year old Caster Semenya. “She is a woman, but maybe not 100%”, General Secretary of the International Association of Athletics Federations (IAAF), Pierre Weiss, told media at the time.

The IOC then followed the IAAF’s 10nmol/L limit when it introduced the ‘Regulations on Female Hyperandrogenism’ on 22 June 2012, just in time for the London Olympics. After the CAS suspended the Hyperandrogenism Regulations in 2015, the IOC tried to re-assert the 10nmol/L limit by publishing its Transgender Guidelines.

The reason for the knock-on effect is that it is becoming increasingly clear that the Hyperandrogenism Regulations were also not based on science. Perhaps tellingly, the CAS has recently extended a deadline given to the IAAF for it to prove that the level of advantage enjoyed by females with elevated testosterone levels is equivalent to that enjoyed by a male athlete over a female athlete. It put this advantage as between 10% and 12%.

Although research was recently published by the IAAF, presumably it has not been accepted by the CAS. A study (PDF below) was conducted by Dr. Stéphane Bermon, a member of the IAAF and IOC working groups on hyperandrogenic female athletes and transgender athletes, and a former member of the IAAF’s Medical & Anti-Doping Commission who gave evidence on behalf of the IAAF in the Dutee Chand case. It found that female athletes with elevated testosterone enjoyed an advantage of between 1.78% and 4.53% in five athletics disciplines.

This is way below the advantage that the CAS required the IAAF to demonstrate in support of its policy. Also, the performance advantage only applies to women with elevated free testosterone (fT) in the 400m, 400m hurdles, 800m, hammer throw and pole vault. Chand is a sprinter. The IAAF Hyperandrogenism Regulations are based on total testosterone levels (tT), not fT levels. In a supplementary file, the authors mention that calculations using tT remove the performance advantage enjoyed by athletes in the hammer throw and pole vault entirely.

Also, in the 100m, 100m hurdles, 200m, 1,500m, 3,000m SC, 5,000m, 10,000m, javelin, triple jump, and 20km RW, women with the lowest fT outperformed those with highest fT. Chand is  a 100m runner and insensitive to the effects of testosterone anyway. Any women suffering from polycystic ovary syndrome will have elevated testosterone levels, but that does not make them an elite athlete. It is also not insignificant that Chand is an elite athlete, yet her physiology does not respond to the effects of testosterone.

The IAAF study doesn’t mention how the IAAF Regulations came to the agreed 10 nmol/L limit. The problem for the IOC is that it has created a linear view of endogenous (internal) testosterone being a crucial arbiter of sports performance, irrespective of the chromosomal make up of the individual, or any conditions the athlete might have that affect the uptake of testosterone.

Testosterone does have an effect on performance, which is why exogenous (external) testosterone is prohibited. The use of exogenous testosterone artificially raises the body’s natural levels, providing a performance boost.

However, Worley’s case and recent history have shown that this method of splitting male and female competition purely based on testosterone levels is not based on irrefutable science. The policy allows no room for manoeuvre. If you are female, you must have testosterone levels that are 10nmol/L or below.

Dutee Chand

This puts any XY females into menopause, and ignores conditions such as Androgen Insensitivity Syndrome (AIS), where an XY chromosome individual develops as a female because their body cannot respond to testosterone. It is also ignores the fact that polycystic ovary syndrome raises testosterone levels, but does not make all sufferers elite athletes.

AIS has affected María José Martínez-Patino, who asked to withdraw from the 1985 World University Games in Japan; as well as Indian athletes Shanthi Soundarajan and Dutee Chand. Soundarajan was stripped of a 2006 Asian Games silver medal after failing a gender test, and two suicide attempts followed. Chand was prevented from competing at the Glasgow 2014 Commonwealth Games and is still fighting her case.

On the hook

Worley’s case puts both the IAAF and the IOC on the hook. Now that a legal Tribunal has recognised that Worley’s human rights have been infringed by such policies, sport fears that other athletes who have been harmed – such as those above – could bring similar claims against the IAAF and IOC before a civil court of law.

The number of athletes harmed is not insignificant, and stretches back a number of years. Paragraph 248(d) of the July 2014 Chand ruling (extract below) reveals there have been over 30 cases under the IAAF’s Hyperandrogenism Regulations alone.

Athletes have also been physically harmed. Ahead of the London 2012 Olympics, four young athletes were forced to undergo surgery after being told that this would allow them to compete at the Games, reported the International Business Times. The IAAF initially denied that this had taken place, however a 2013 study appears to suggest that it did.

It is understood that all four athletes ended up having surgery to remove undescended testicles, being told that this would lower their testosterone levels and allow them to continue competing. The study revealed that all the athletes had medical procedures that had nothing to do with this: reductions to the size of their clitorises, ‘feminine’ remodelling surgery and oestrogen replacement therapy.

As these young athletes have had their ability to naturally produce testosterone surgically removed due to a requirement by sport, they suffered the same symptoms endured by Worley, namely ‘complete hormone deprivation’. Far from helping them to compete as it claimed, sport’s intervention has made it impossible for them to compete, medically harmed them and took away their Olympic dreams.

It is not as if sport was not given prior warning. In 1976, the New York Supreme Court found that tennis authorities had violated New York Human Rights law by ruling that XY female Renée Richards could not compete in the 1976 US Open. Following Worley’s ruling, all athletes that have been removed from competition after having their gender questioned will be examining their legal options. The list of athletes bringing claims forward could therefore be a long one.

Simple ethics

Although Worley’s case is separate from that of Chand or Semenya, they are linked through sport’s need to separate athletes into male and female competition. Removing the science from the situation – something Worley would argue against – both situations come down to simple ethics.

Firstly, both sets of regulations are applicable only to women. The 2003 Stockholm Consensus (PDF below) mandated that XY females should lower their testosterone to below the normal XX female range, with the Human Rights Tribunal of Ontario has accepted caused harm to Worley. The Hyperandrogenism Regulations require women – irrespective of chromosome make up – to bring their testosterone levels below 10nmol/L, even if they are insensitive to testosterone in the first place.

Yet an upper limit for testosterone is not applicable to men. In fact, any XX female transitioning to become an XY man is allowed to apply for a TUE for synthetic testosterone to bring them up to what sport considers to be the ‘male’ level. As previously mentioned, an XX chromosome athlete is more receptive to the effects of testosterone, which is why exogenous testosterone has had such success in doping female athletes to victory. In some cases (Chris Mosier, Mack Beggs), these XX men are outperforming the XY men.

Secondly, questions have to be asked about whether it is ethical to sanction an athlete for something their body naturally produces. Caster Semenya has adrenal hyperplasia, a condition where the adrenal gland is larger than usual. She is XX chromosome and she does produce a higher level of testosterone than most XX females. She does have a competitive advantage, due to the extra testosterone being produced by her adrenal glands.

However, as the IAAF’s own research in the Dutee Chand case illustrates, this advantage doesn’t appear to take her into the male range of performance. Her advantage is no different to natural advantages enjoyed by the Williams sisters, Paula Radcliffe or Jessica Ennis-Hill. Is it ethical to take that advantage away? Venus Williams has served at 129mph. Nobody would argue that we should limit her ability to hit the ball that hard. After all, playing to one’s natural strengths is part of the cultural ethos of sport.

Quite how sport should resolve the issue of how to categorise males and females remains an open question. What is certain is that independent experts are needed in this area, which is why the idea of a Sports Ombudsman is so important. Worley’s case has succeeded in showing that sport’s lawyers and policy makers are not those experts. The tragedy is that for many years, they have pretended that they are.

A human rights court has recognised that sport has behaved unethically, and that has opened the door to litigation from athletes that have been mistreated at the hands of sport. That is what kept Worley fighting for 16 years. Her legacy has just begun.

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