Sports governing bodies keep trying to have a female category without committing to the objective, sex-based definition of a female. Each successive attempt to delineate a female category without defining female athletes shows the way for activists and mediocre male athletes to self-identify their way into competing against females in nearly every sport and level, from collegiate swimming to adult recreational soccer, from high school volleyball to pro rugby, disc golf, and boxing.
Further away from the public eye, women’s sports face an existential crisis at the hands of a small network of people waging lawfare against biology and fairness on behalf of these activists and mediocre male athletes.
American swimmer William “Lia” Thomas is one of the most well-known males in women’s sports. Having won an NCAA Division I women’s championship in 2022, he now wants to compete in the USA Swimming Olympic Trials in the female category.
Thomas is taking the international swimming federation, World Aquatics, to the Court of Arbitration for Sport to overturn World Aquatics’ policy that bans any male who has “experienced any part of male puberty” from competing in the female category. He is represented by lawyers who are part of a network with over a decade of experience litigating against the sex-based female category in sports.
Leading his legal team is Canadian lawyer Carlos Sayao of the law firm Tyr, LLP. Sayao and another Tyr partner, Jim Bunting, represented Caster Semenya at the Court of Arbitration for Sport in 2018 and 2019.
Semenya is a two-time Olympic gold medalist in the 800-meter running race who was born with a difference of sexual development (DSD), called 5ARD. People with 5ARD have XY chromosomes, internal testes, and normal male levels of testosterone, but do not develop external male genitalia. This results in one of the few times when the phrase “assigned female at birth” clarifies rather than obfuscates. But it created significant controversy (now going on 14 years) regarding Semenya’s — and other athletes with DSD — eligibility to compete in the female category.
Semenya’s 2018-19 case challenged World Athletics’ rule that athletes with certain DSD must “reduce their natural testosterone level to within the normal female range” for six months to be eligible for the female category.
Alongside lawyers Sayao and Bunting in that litigation was a member of Semenya’s original legal team from 2009, South African attorney Gregory Nott. Nott was a managing partner at the Johannesburg office of Dewey & LeBouef, a New York City-based firm. Nott and Dewey’s global litigation co-chair Jeffrey Kessler led Semenya’s 2009 action against World Athletics, with Kessler’s protege David Feher on the legal team. When Dewey & LeBouef went into bankruptcy in 2012, Kessler and Feher joined the firm Winston & Strawn, where Feher is now co-chair of the Sports Litigation Practice.
Last October, Winston & Strawn celebrated their victory in securing an unprecedented therapeutic use exemption (TUE) for a female athlete, American distance runner Cal Calamia, to take testosterone as part of “gender-affirming hormone treatments.”
Feher led Calamia’s legal team in front of the United States Anti-Doping Agency (USADA), the congressionally recognized agency that oversees most sports’ anti-doping programs. A TUE permits an athlete to take an otherwise prohibited substance, such as performance-enhancing drugs, if it is prescribed as part of regular medical care and “is highly unlikely to produce any additional enhancement of performance beyond what might be reasonably anticipated by a return to the individual’s normal state of health in the absence of the diagnosed medical condition.”
Several months earlier, USADA told journalist Sarah Barker: “Cisgender females who compete in the female category can apply for a TUE for testosterone, but it would be exceedingly rare for it to be approved based on current medical practice.”
That left two openings for USADA and Calamia’s legal team to exploit. Calamia self-describes as “transmasculine nonbinary.” Presumably then, rules pertaining to what USADA deems but doesn’t define, “cisgender females” do not apply. Second, the TUE only covers Calamia’s participation in the male, non-binary, and “open” categories. As long as she does not compete in the female category, USADA can reconcile their statement to Barker and their decision to grant the TUE.
Perhaps the only thing rarer than a TUE for testosterone is legal counsel for a TUE application. Compounding the anomaly, USADA made the TUE retroactive by over one year, thereby covering a few races Calamia already ran in the female category while on testosterone.
While Caster Semenya competes on the world stage and Lia Thomas won an NCAA Division I championship, Calamia is a recreational marathoner. How a mostly unknown athlete even came to the attention of a firm like Winston & Strawn was a puzzling question. Then, in mid-November, the CEO of New York Road Runners (NYRR), the largest running organization in the United States and the nine-figure nonprofit behind the New York City Marathon, took a victory lap of his own on NYRR’s podcast, “Set the Pace.”
During an interview with Calamia, NYRR CEO Rob Simmelkjaer gave “a shout out to David Feher, a friend of mine who I know worked with you, a great lawyer who’s done a lot of great work in this area. I was happy to be able to connect you with David and help you get this TUE … He was instrumental in this whole process.”
Carlos Sayao and Jim Bunting took up Caster Semenya’s 2018 case two years after an interesting near miss with Semenya.
The legal duo were athlete ombudsmen for Canada’s Olympic team at the 2016 Summer Olympic Games in Rio de Janeiro. A previous Team Canada ombudsman “[identified] four key areas in which the services of the team ombudsman may be sought: international sport disputes, local criminal matters, internal administrative issues, and internal administrative sport disputes.
At the 2016 Olympics, a Canadian athlete, Melissa Bishop, finished fourth in the women’s 800-meter race. Ahead of her were Caster Semenya and two other athletes with differences in sexual development, Francine Niyonsaba and Margaret Wambui.
“We did not know if Caster could run or if the others were showing up,” Peter Eriksson, head coach for Athletics Canada from 2012 to 2016, told me in an interview.
Finishing fourth behind these three athletes “was devastating for Melissa. I couldn’t say much to her then. We all know it was unfair. She was a Nike athlete at the time, and she would have made millions [with an Olympic medal]. Melissa was higher up in status because of her performance and she was consistently improving the whole time. Plus, she has a great personality, which would have helped, too.”
Without an athlete initiating a complaint or requesting assistance, ombudsmen presumably do not get involved. To Eriksson’s knowledge, Bishop never raised the issue nor requested counsel from the ombudsmen or anyone else at Athletics Canada or the Canadian Olympic Committee. She has always been a “very private person,” he said, rarely speaking to the media and avoiding any controversy.
Nor did Eriksson bring it up with anyone in or out of the Canadian Olympic hierarchy. Coaches don’t have ombudsmen, a union, or standing counsel. And he would have needed the help. Shortly after the race, a lawyer from the Canadian Olympic Committee called him and allegedly threatened, “You say one thing about this, I’m going to make sure you’re banned for life in all sports.”
Neither Bishop nor Eriksson received the levels of legal support — much of it pro bono — that Caster Semenya, Cal Calamia, and now Lia Thomas enjoy from boutique and Top 100 firms alike. Institutional capture is enabling radical gender activists to wield institutional power against sex-based categories in sports and, by extension, against female athletes.