This is the second in a four-part series examining the arrival of female jockeys in American horse racing – why and how they broke in to the sport when they did, and how racing has reacted. In this second installment, we'll learn about Kusner's court fight to get a jockey's license. You can find the first installment in the series here.
This series is sponsored by the Kentucky Derby Museum, which will open its Right To Ride exhibit on Oct. 16. The exhibit marks the 50th anniversary of Diane Crump's historic ride in the Kentucky Derby in 1970, when she became the first female jockey in the race. You can learn more about the exhibit and access current COVID-19 safety protocols for Museum visitors here.
Nov. 22, 1967 began like any other day for the stewards at Laurel Race Course. They fully expected to go about their usual business of reviewing applications, making rulings and attending to miscellaneous administrative details. Partway through the meeting, their role as stewards changed forever. Kathy Kusner, a medal-winning member of the United States Equestrian Team, dropped a bomb in their laps; she presented them with an application to compete as a professional jockey in horse races. Men who, until that point, fulfilled their roles in relative anonymity were thrust — most unwillingly — into a very public discussion about the future role of women in horse racing.
Even Kathy Kusner, in relating her feelings about that time, felt conflicted. As she told The Baltimore Sun, “This is no great crusade. I just want a license.”
And yet, years later in a phone interview she recognized that her application represented something far greater. She stated, “This issue is bigger than me,” evidence she recognized that her application may have started out as a simple application for a license, but quickly blossomed into something far greater.
By the 1960s, women had been involved in horse racing for decades. Their roles included grooms, hot walkers, and exercise riders. There were several examples of women as successful owners, however Mary Lou Whitney and Lucille Markey (note that at the time she was almost always referred to as Mrs. Gene Markey) cannot be considered representative of a repressed group of women, as their fortunes essentially purchased their rights to participate in horse racing. Grooms, hot walkers, exercise riders — no jockeys.
As a result of the Civil Rights Act and an overall increase in women's pushback against the societal status quo of women's role in the home and workplace, the timing was suitable for women to break into the role of professional jockeys. However, someone had to be first.
Kusner had been a successful member of the equestrian community for years. As she enjoyed her public success over jumps, she began to ponder an additional career in flat racing. Although she had already established herself in the world of show jumping, a field heavily dominated by men, she did not consider herself a groundbreaker or a rebel. She patiently continued to wait for another woman to apply for a racing license.
Her application probably created pure terror in the minds of the stewards. As noted by The News Leader, J. Fred Colwill, the steward who represented the Maryland Racing Commission, “was obviously shaken by the show of Woman Power and attempted to fend it off with a number of technicalities which were promptly batted down by Kusner's Attorney Audrey Melbourne.” Melbourne was a formidable presence in her own right, and was later named the first full-fledged female judge in Prince George's County. In a bit of foreshadowing of how the American media would cover Kusner's fight, Morris Siegel, of the Washington Star referred to Melbourne as “her lady lawyer, naturally.”
The initial response to Kusner's application involved some legal tap-dancing about who should, in fact, be the recipient of the application. Colwill and the other stewards wanted nothing to do with this potential controversy. At first Colwill attempted to use various technicalities to refuse acceptance of the application, but Kusner's attorney adroitly batted them aside. At that point Colwill changed tactics, stating that the application instead had to be submitted to James Callahan, the secretary of the Maryland Racing Commission. Unfortunately for Colwill, Callahan chose that particular moment to walk into the meeting. Melbourne then attempted to hand Callahan the application. Colwill, in what may in hindsight be perceived as a Freudian slip of how they viewed the application, shouted, “Don't touch it! It is an application by a girl for a jockey's license!”
Callahan responded quickly, and informed Melbourne and Kusner that the application had to be presented to the Chairman of the racing commission. Who should walk into the meeting but D. Eldred Rhinehart, the Chairman of the Commission. The application couldn't be kicked upstairs any further, and Rhinehart told Kusner the application would be reviewed at the next meeting of the commission.
Next, the racing commission attempted to refuse her qualifications based on her ability. The stewards made Kusner gallop horses for them, an ordinary requirement that typically weeded out riders who lacked the qualifications to safely ride a powerful Thoroughbred. However, the review process is highly subjective, and after Kusner's demonstration, the stewards presented concerns about Kusner's riding that were spurious at best.
Some of those issues the commission raised included examples of a BFOQ (Bone Fide Occupational Qualification) which skirts Title VII requirements for equality in the workplace. BFOQs means there are times when sexual preference in hiring is acceptable, even expected, such as hiring men to model men's clothing. Some of the objections they raised were that she wasn't “strong enough,” or that she “bounced” too much in the saddle. However, testing from the starting gate needed the approval of only the head starter, in this case, Eddie Blind.
When tested from the starting gate, Kusner passed with flying colors. Blind said, “I've seen all of 'em in my forty years — Arcaro, Atkinson, Longden, Shoemaker, Culmone — and none of 'em, at her stage, got out of there any better.”
Other objections included a fraught discussion regarding where Kusner would change into her silks. She responded by stating she would be happy to change in a broom closet; she expected no special treatment.
What other arguments might the commission bring to the fore? Well, Kusner was still an amateur; the Olympics had not yet relaxed their standards on professional participants, which meant she could not ride horses for pay without jeopardizing her amateur status and Olympic eligibility. So, the commission argued that since she would essentially be riding for free, she would be taking the place of a hard-working male jockey who needed the income – at a time when the cultural norm was for men to be the sole breadwinners in their family.
To that argument Kusner replied that she would donate her winnings to the United States Equestrian Team. When the stewards watched her ride, Colwill decided that she was less than proficient in her riding ability, stating, “(Kusner) did not display the ability to ride with professionals in races.”
Kathy Kusner leaves the scales after the Rose Tree Ladies Plate in Pennsylvania
Kusner's attorney realized that these shenanigans with the racing commission had to end, and took the commission to civil court over what she believed was a Title VII violation. Melbourne argued that the Maryland Racing Commission had willfully ignored all arguments presented regarding her client's ability and had acted in a manner that was “arbitrary and capricious Kusner, who the Maryland Racing Commission believed lacked the ability to ride in a race, could not attend the hearing regarding her application. She was in New Jersey training with the United States Equestrian Team in preparation for the upcoming Olympics.
“When we spoke with Kathy during the development of this exhibit, one thing was very clear: Kathy had no ego getting in the way of her fight, she was just doing what she believed was right,” said Jessica Whitehead, curator of exhibits like Right to Ride at the Kentucky Derby Museum. “No conscious feminism, no explosive righteousness, just capable Kathy ready to do what it took to do what she loved.”
At the trial to determine if Kathy Kusner could be granted a license to ride as a professional jockey, Circuit Judge Ernest A. Loveless took less than five minutes to reach his decision. He found that the Maryland Racing Commission had acted in a prejudicial manner and had based their decision solely on the fact that Kusner was a woman, and said, “the Stewards had disregarded normal procedures and had set up a special set of standards as to her riding ability.”
The regulatory body doubled down on its objections, issuing the following statement in response to the judge's decision —
“Upon the order of the Circuit Court of Prince Georges County, which substituted its judgement for that of the commission and stewards who are familiar with the qualifications of jockeys, the racing commission this date will issue a jockey's license to Kathryn H. Kusner.”
There are two ways people behave. The first is de jure, meaning according to the law. The other is de facto, meaning how people act regardless of the law. A de jure interpretation means that regardless of someone's personal beliefs, women will be permitted to ride racehorses. A de facto response means that, no matter what Judge Loveless decided, commissions, licensing bodies, owners, and trainers could all make it extremely difficult for women to be granted licenses.
Unfortunately, the world would have to wait to see Kathy Kusner enter her first race as a licensed jockey. In November 1968 her mare, Fru, fell at a hurdle at during a jumper class at Madison Square Garden and Kusner broke her tibia, requiring months of convalescence. The honor of first female professional jockey to ride in a race would fall to Diane Crump, who in February 1969 made the entrance of women into racing official. Kusner would have to wait until August of 1969.
A victory, to be sure. At the time the United States (as well as the rest of the world) was in the midst of a social upheaval where we were digging deep into long standing beliefs on race, sex, and the individual's role in society. Even the media found itself reevaluating how it presented stories. Take note of the words used in various newspapers to describe America's newest licensed jockey. Articles were littered with such descriptors as “lissome,” “petite,” and “attractive.” The Ottawa Journal, in reporting her court victory, noted Kusner was wearing a “violet plaid dress and pink shoes.” Unfortunately, we shall have to leave it to the reader's imagination as to what the men in the courtroom were wearing.
David Beecher has a master's degree from Shippensburg University and a PhD from Penn State, where he is currently a lecturer. Dr. Beecher's research and teaching interests are American history with an emphasis on Early American and Civil War History. His dissertation explained the role of Thoroughbred racing in the Antebellum South.
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