The Human Rights Tribunal (HRT) of Ontario has ruled that it has jurisdiction to hear Kristen Worley’s case against sport’s gender policies, despite arguments to the contrary by the International Olympic Committee (IOC) and the Union Cycliste Internationale (UCI). Worley’s case (2015-21367-I) argues that by requiring her to obtain a Union Cycliste Internationale (UCI) licence, the Ontario Cycling Association (OCA), Cycling Canada Cyclisme (CCC) and the UCI require her to agree to IOC gender policies that violate her human rights under the Ontario Human Rights Code and adversely impact her health as a female athlete with a transitioned history.

The IOC had attempted to block the HRT from hearing the case, which it accepted on 10 July. The IOC applied to the Superior Court of Justice in Toronto for an order prohibiting the HRT from asserting jurisdiction over the IOC, and for a declaration that the IOC was not correctly served with Worley’s application according to the procedures set out in the Hague Service Convention. “The IOC will not comment whilst the case  is ongoing”, said an IOC spokesperson.

In a 26 August ruling, Adjudicator Jo-Anne Pickel found that although Canadian court proceedings are subject to the Hague Service Convention, Ontario legislature does not require compliance with the Hague Convention in tribunal proceedings. ‘I find that there is no requirement that materials in proceedings before the Tribunal be served using the procedures set out in the Hague Service Convention’, she wrote. Pickel also said that the HRT had yet to receive notice of any IOC application for a court order preventing the HRT from hearing Worley’s case. ‘To date, the Tribunal has not received notice of any application or stay of proceeding’, read the ruling. ‘In the absence of such a stay, the Tribunal will proceed with its processing of the application’.

The HRT also denied a UCI request for Worley’s medical history. ‘I do not consider it necessary to order such early disclosure in this case’, wrote Pickel in the ruling. ‘In my view, there is sufficient detail in the Application for the respondents to discern the nature of the alleged infringements of the Code and the legal issues that need to be answered’.

However, Pickel did grant the UCI, OCA and CCC their request for an extension to the deadline for responses to 14 September (yesterday). It is understood that the IOC is arguing that the Canadian legal system should not have accepted the case, since anyone signing a UCI Licence agreement accepts the Court of Arbitration of Sport as the sole forum for resolution of sporting disputes, without the right of appeal (see p7, UCI General organisation of cycling as a sport). Olympic sporting federations are required to implement this rule by Article 61 of the Olympic Charter.

However, Worley hasn’t signed the UCI Licence agreement. “We didn’t want to go to the Court of Arbitration for Sport, as it’s not a sporting dispute”, explained Worley in this interview with the Sports Integrity Initiative. “Two years ago, when I sat down and got to the third portion of my athlete licence, which you have to sign off in terms of policy, I realised that I couldn’t sign this policy given everything I know. Also, if I had signed that agreement, the Canadian courts would have recognised sport as having jurisdiction. To sign on to that policy would mean agreeing with the continuation of me becoming further unwell. They are making sport impossible for me to participate in, and I’m agreeing to that because that’s what I have to do because of my diversity. In terms of the policies behind what we’re doing, we’re showing the relationship between the IOC and the international federations goes right down to local sport. The impact of gender and gender policy is felt throughout sport in every country within accredited Olympic sport.”

Sport historically relies on being able to split people into ‘female’ and ‘male’ categories. In 2003, the IOC Medical Commission formulated the Stockholm Consensus. This group recommended that individuals undergoing sex reassignment from male to female after puberty, undergo ‘surgical anatomical changes […] including external genitalia changes and gonadectomy’.

Kristen met the protocols outlined in the Stockholm consensus, and received a Therapeutic Use Exemption (TUE) to use synthetic androgens. However, the amount of androgens permitted by her TUE were set below the average range for females at 0.5nmol/L, even though the normal androgen range for non-athletic females is 0.52nmol/L to 5.6nmol/L. This induced ‘complete hormone deprivation’ in Worley.

The impact of ‘complete hormone deprivation’ removes the body’s day to day ability to regulate itself, but especially in the amount of androgens needed to respond to exercise. As the body has no androgens, cell synthesis ceases, causing a number of serious health issues including the induction of an immediate extreme post menopausal state; a non-natural and aggressive ageing process; complete muscle atrophy (i.e. failure of muscle development and recovery, making sport impossible); anaemia; a large drop in haematocrit levels and more.

Worley’s case argues that the Stockholm Consensus was not based on medical science, as it should have been. It is understood that its approval was granted through a simple vote by the IOC Athletes Commission. It argues that the ‘normal’ androgen levels set by IOC regulations cause ‘complete hormone deprivation’, which causes serious health issues. For a complete discussion of the issues that surround the case, please see this interview with Worley.