Introduction
In 2021, the International Olympic Committee released the “Framework on Fairness, Inclusion and Non- Discrimination on the Basis of Gender Identity and Sex Variations” which prohibits exclusion of transgender athletes from sport, if the reason for exclusion is “solely on the basis of their transgender identity or sex variation.” [1] Although IOC did not make any particular guidelines, but rather left it on individual sports federations to form and modify eligibility rules, where needed, grounded in making the sport fair, inclusive, and non-discriminatory. These new guidelines should be consistent with internationally recognised human rights, robust evidence, and athlete consultation.
In light of this many sports, federations have started to form new guidelines. Fédération Internationale de Natation (International Federation of Swimming, FINA) is one of the first federations that have publicly come out with a policy regarding the future of their eligibility requirements.[2] This decision while stemming from the IOC guidelines also stemmed from US Transgender swimmer Lia Thomas, who recently won huge at women’s collegiate events in the USA. Many of her team members requested USA Swimming to ban her from participating in women's competitions due to Ms. Thomas being a male, participating for UPenn’s Men’s Team in 2017 and 2019, and that the transition gave her an unfair advantage over other athletes in the women’s category.[3]
Eligibility Under the New Rules
FINA acted on this by introducing a new standard of eligibility requirement which prohibits males who transitioned after puberty from competing in the women’s category for all sports regulated by FINA, unless the athlete can prove that they “continuously maintained their testosterone levels in serum (or plasma) below 2.5 nmol/L beginning at Tanner Stage Two or before age 12.” Essentially, any male who has experienced any part of male puberty and then transitioned into a female later would not be able to participate and compete with other women athletes. This is concerting especially when the treatment of hormones in the trans kids starts at the age of 14, and it is very rare to transition at the age of or before 12 years.[4] In addition to this, there is also the testosterone limit that trans athletes need to comply with in order to participate with other cis-gendered women. The Federation also set up a working group that worked towards setting up an “open” category to try and see if that option is feasible or not.[5]
While FINA, believes this policy is a step towards inclusivity and maintains fairness in women’s category events, they have faced a lot of backlash concerning the same. One of the most notable criticisms is from the FINA Medical Committee which has stated it is impractical and impossible to expect an 11-year-old boy to decide on whether he should transition, a decision which will have a huge impact on the rest of his life.
The promoters and supporters of the new policy of FINA argue that the new rules are a necessary and proportionate action in order to maintain the fairness and integrity of the sport. Although such a blanket exclusion could only be argued when there is objective and ample scientific evidence to support the claim that male puberty not only gives an advantage to trans athletes but the advantage in such a case must also be “unfair”. Starting with the scientific evidence, there is not enough research to show that trans-athletes have any kind of advantage over cis-gendered women athletes, the only reason why FINA regulations use puberty as a basis of classification is testosterone. FINA’s policy states that the new policy is based on scientific research but has provided no sources or reviewed articles that they have relied on. Meanwhile, according to research, increase in testosterone in trans athletes during puberty gives them a physical advantage due to going through a muscle spurt in puberty. This gives them a larger body frame and thus a physical advantage.
Sport has always tolerated some amount of unfairness, like certain physical advantages – wider wing span, flipper length feet, etc. All of these qualities provide a certain advantage to the athlete participating in their respective categories. Thus, this needs to be analysed through the question: does this advantage affects normal competition between women and trans athletes? i.e., does the advantage lead to the competition being meaningless, thus making the advantage unfair.
Transgender sports scientists concluded that trans athletes do not prima facie have any significant advantage over other women competing in the category.[6] It is understood that testosterone gives males the advantage over female athletes and thus to remove that male advantage there are separate categories. Now, unless it is shown and it can be proven conclusively that transgendered females have the same advantage over their competitors, the regulation of FINA seems to be exclusive rather than inclusive. Further, FINA as a federation not only regulates swimming but also five other aquatic sports such as diving, high diving, artistic swimming, water polo, and open water swimming. One could easily speculate and say what advantage could a trans athlete, due to their larger frame and muscle spurt during puberty, have in other sports regulated by FINA.
Regulatory Implications
FINA, being a well-reputed and huge international federation, their policies on inclusion, or rather ‘exclusion’ of transgendered athletes set a dangerous precedent for other sports governing bodies to follow. Further, it should also be considered that these regulations are usually made at the grassroots level, and not allowing a transitioned woman to participate in even a recreational tournament would have a significant impact on their mental health as being excluded from participating with the gender they recognize themselves to be.
Rather than having a blanket ban on transgender athletes, a viable solution could be to use a case-to- case approach for such eligibility issues. This is a much more practical approach as it does not prima facie act as an exclusionary policy but rather is an inclusive approach and is possible due to such a low number of transgender athletes existing and even fewer competing at the highest level. An analogy could be drawn on how advantage is judged for disabled athletes who use prosthetics or some other technology that helps them.[6],[1] For example, the case of Oscar Pistorius, who with prostheses, wanted to compete with able-body athletes, but IAAF did not allow him to do so. In his appeal to CAS, the athlete won his appeal as he was able to illustrate the nonexistence of any advantage that he gained using prostheses. This award was backed by science and research to show how there was no significant or unfair advantage that Pistorius had by using these prostheses. Similarly, due to the lack of research and empirical data in the sphere of transgender women and their advantages against other cis-gendered women, the same logic of inclusion should apply, where they are by default included and allowed to participate in the women’s category unless an unfair advantage can be proven.
There are other problems as well that come with this policy as FINA brings back chromosome testing as a method of confirming who is “woman enough” for the category, this method of testing was stopped decades ago due to the ethical ramifications and the varied nature of sex in the chromosome space.
The new FINA policy is bound to face challenges soon over its discriminatory nature, it will be interesting to see how the courts and other federations interpret this new policy and whether it stands the legal test.
Bibliography
[1] IOC Committee, “IOC Framework on Fairness, Inclusion, and Non-Discrimination On The Basis of Gender Identity and Sex Variations”, November, 2021, <https://stillmed.olympics.com/media/Documents/News/2021/11/IOC-Framework- Fairness-Inclusion-Non- discrimination-2021.pdf>
[2] FINA, “Policy On Eligibility For The Men’s And Women’s Competiton Categories” <https://resources.fina.org/fina/document/2022/06/19/525de003-51f4-47d3-8d5a-716dac5f77c7/FINA- INCLUSION-POLICY-AND-APPENDICES-FINAL-.pdf>
[3] Homero De La Fuente,“International Swimming Federation votes to restrict transgender athletes from competing in elite women's aquatics competitions” CNN Sports, June, 2022 <https://edition.cnn.com/2022/06/19/us/fina-vote-transgender-athletes/index.html>
[4] https://www.latimes.com/science/story/2022-06-16/trans-kids-treatment-can-start-younger-new-guidelines- say
[5] Id. n.2
[6] Peter FitzSimons, “Perkins a breath of fresh air in trans debate, and Australia is with him”, June 2022, <https://www.smh.com.au/sport/perkins-a-breath-of-fresh-air-in-trans-debate-and-australia-is-with-him- 20220622-p5avmf.html>
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