Corps de l’article

Kirsten Worley is an XY female. She was assigned as a male at birth and then transitioned, which included extensive surgical procedures, to a female. During her period as a male, she was an accomplished long distance runner; water skier, being a member of the Canadian national team; and a cyclist where her attempt to represent Canada at the 1988 Seoul Olympic Games was thwarted when she experienced a devastating fall/crash. Following her transition as an XY female Kirsten Worley sought permission to compete as a cyclist under the International Olympic Committee’s (IOC) 2003 Stockholm Consensus on Sex Reassignment in Sports’ Guidelines. Under these rules the applicant had to demonstrate that surgical anatomical changes have been completed, legal recognition of their transition has been confirmed by appropriate official authorities, and hormonal therapy has been administered in a verifiable manner to minimize gender-related advantages in sport competitions.[1]

Worley made her application for a cycling license to Canada’s National Sports Organisations in April 2005. She hoped to compete in the 2008 Beijing Olympics. She was the first athlete in the world to ‘test’ the Stockholm Consensus. Worley objected to the way in which her application was handled in terms of being required to undertake further medical examinations despite documentation from the surgeon who performed her transition and the attitude the panel displayed to her during the hearing; “their tone was clear: I was not, nor would I ever be, a ‘real’ woman. At best, I was trying to cheat; at worst, I was a freak”. Worley says that the panel should have reached a decision in three weeks; it took eight months (p. xiv).

Following the granting of her license Worley found that she was struggling with her training and performance. Being on a regime of hormones and bereft of testosterone, both of which are associated with and resulting from her transition, her body was unable to repair itself. Under the rules of the Anti World Doping Authority (WADA) athletes can apply for a Therapeutic Use Exemption (TUE) to take medications, drugs that are necessary to maintain their health. An endocrinologist whom Worley consulted advised her to apply to the Canadian Centre for Ethics in Sport for such an exemption. Worley was the first transgender athlete to seek a TUE for testosterone for basic health reasons.

The IOC and WADA are wary of testosterone levels in female, ‘same sex’ and transgender athletes as providing them with an ‘unfair’ advantage. Worley maintains that a TUE usually takes two weeks to be determined and granted. Her application took three years (p. 148). When finally granted in September 2009, prior to her 43rd birthday, she was assigned an amount which was below the level that her body needed. She then decided to take on the IOC, WADA, the International Cycling Union, Cycling Canada and the Ontario Cycling Association over her treatment. She directly contacted both the IOC and WADA over the phone and took to writing and social media in expressing her objections. The key question she asked, which no one would or could answer, was, “can you provide me with the scientific basis for your decision?”.

Worley decided to pursue her case as a breach of her human rights under the Ontario Human Rights Code[2] before the Human Rights Tribunal of Ontario. The first issue which the Tribunal considered was if it had jurisdiction to hear such an application. On 20 July 2016, Adjudicator Pickel concluded that the IOC and WADA were beyond the Tribunal’s remit. This did not apply, however, to the International Cycling Union, Cycling Canada and the Ontario Cycling Association.[3] Following this finding, Worley decided not to litigate the matter further and agreed to enter into mediation with the three cycling bodies. Almost a year later, on 5 July 2017, the parties reached an agreement, which expressed support for:

  1. the establishment of standards and guidelines related to XY females that are based in objective scientific research, from available sources, including those outside the organization;

  2. the TUE applications should be applied as an individualized assessment con-ducted by medical personnel with subject matter expertise;

  3. the time-frame for the review of any TUE application, as well as any testing required during the life of the TUE, should be consistent amongst athletes applying and/or granted TUEs for exogenous androgens, subject to any unique medical circumstances.

The parties also said they were committed to advocating these initiatives at home and abroad and promoting inclusive environments in cycling. Finally, the Ontario Cycling Association and Cycling Canada said they were, “reviewing and revising their internal policies to embrace human rights and are embarking on a program of awareness and education related to diversity and inclusion of all participants”.[4]

In Woman Enough, Kirsten Worley, together with freelance journalist Johanna Schneller, provides an account of her struggles with transitioning and with sporting bodies who erected roadblocks to stop her from pursuing a career as a cyclist. The strength of their account is the clarity of their presentation, especially explaining the medical and scientific material involving transitioning and the use of drugs in sport.

Woman Enough is equally divided between Worley’s two struggles. The first half focuses on Worley discovering from an early age that she was ‘different’, not knowing what it meant and the process of transition in medical, psychological and social terms. This material makes for harrowing reading and is an eye opener for someone, like myself, who knows virtually nothing about transitioning and transgender. Three times she attempted suicide, twice by drowning and once by hanging, saved by her wife who cut her down returning home from work in time. Kirsten has been supported by the love of her wife, her wife’s family and other friends.

The second half of Woman Enough provides a compelling critique of the approach of various national and international sporting bodies to transgender, inter sex and female athletes who are born with levels of testosterone that are considered too high. The IOC’s preoccupation with the testosterone levels of female athletes has forced some to mutilate their bodies and resulted in suicides and shaming[5]. In May 2019, the Court of Arbitration for Sport upheld a directive of the International Association of Athletics Federations requiring South African middle distance runner Caster Semenya to lower her ‘natural’ level of testosterone, either medically or by surgery.[6] On 3 June 2019, the Federal Court of Switzerland stayed this directive pending a future hearing.[7] The essence of Worley’s critique is that such decisions are based on faulty science, or no science at all, and constitute the assumptions of old men with grey hair unprepared to do the necessary research and investigations required. In addition, directives by sporting organizations requiring female athletes to take medication, especially in the absence of knowing what the long term consequences of doing so will be, and to enter into surgical procedures fundamentally attack the human rights of such athletes. Ask yourself, what would be your reaction to being required to do so to be able to pursue your career of choice?

The second half of Women Enough also provides an insider’s account of the processes involved with the Human Rights Tribunal of Ontario.

In 2016, before the commencement of the 2016 Rio de Janeiro Olympic Games, Kirsten Worley received an email from one of the “grey haired guys” who was involved in the decision-making processes of the sporting organisations which impacted on her. He wrote:

As a caretaker of sport, I had a responsibility to get it right, and I did you wrong…You are unfortunately fighting in a world [of sport] where decisions are mainly political. The IOC will always try to have decisions [made] by their “own” people , whether their “own” people are experts or not…these guys will NEVER admit to having made mistakes…there is a total lack of control on the doings of international sports organizations so corrections are difficult, say virtually impossible…praise for your fighting spirit for a just cause [additions by Worley and Schneller, p. 209-210].

It took Kirsten Worley over a decade to force cycling organizations to respond to the problems of transgender female XY athletes and agree to adopt a scientific basis to their decision-making. In the process, she and her colleague Johanna Schneller have exposed the inner workings and fundamental problems associated with the governance of sport. Women Enough demonstrates how tenets associated with human rights can be successfully utilised by athletes to advance and defend their rights.