Restriction on trans swimming fuels debate that opposes inclusion and equality of conditions

Should the primary goal of elite sports be competitive fairness? Or does maintaining integrity mean that inclusion is just as important as a level playing field?

The issue, which rocked pools everywhere with the success of Lia Thomas, the transgender swimmer at the University of Pennsylvania, came to a head again last month. FINA, the governing body of the swimming world, has essentially banned transgender women from the highest levels of international women’s competition.

Fina’s proposal is to create the so-called open category of competition, to “protect competitive fairness”. But a separate category is “isolating, humiliating and has the potential to turn transgender and non-binary competitors into a spectacle on the international stage,” said Anne Lieberman, director of policy and programs at Athlete Ally, which seeks to end transphobia and homophobia in sports.

The attempt to balance inclusion and fairness, especially with regard to the eligibility of transgender and intersex athletes (competitors with the typical male pattern of X and Y chromosomes) is among the most complicated and divisive issues in sport.

There are reasoned arguments on both sides. Going through puberty as a man offers physical advantages that persist even after testosterone levels are suppressed, such as wider shoulders, bigger hands, longer torsos, denser muscles, and increased heart and lung capacity.

In January, the international and European sports medicine federations issued a joint statement that said, in part, that high concentrations of testosterone “confer a basic advantage to athletes in certain sports” and that, in order to defend “integrity and fairness in sport” “, these advantages “must be recognized and mitigated”.

However, there has been relatively little scientific research involving elite transgender athletes. And the studies have not quantified the precise impact of testosterone on sports performance. The athletics governing body, which has instituted strict regulations on allowable testosterone levels, last year corrected its own research. He acknowledged that he could not confirm a causal relationship between high testosterone levels and performance advantages for elite female athletes.

Fina has made herself vulnerable to critics, who accuse her of acting rashly and recklessly, retaliating against Thomas and trying to create a solution to a problem that doesn’t exist. The Human Rights Campaign, the LGBTQIA+ civil rights organization, blamed the swimming regulator for “giving in to the avalanche of prejudiced and ill-informed attacks directed at one particular transgender swimmer”.

Only one known transgender athlete has won an Olympic medal in a women’s competition, Canadian football player Quinn, who was designated female at birth and identifies as non-binary. And only two openly transgender athletes appear to have won NCAA titles — Thomas and CeCe Telfer, who won Franklin Pierce University’s Division II 400-meter hurdles in 2019.

Even winning, Lia Thomas didn’t have a crushing performance at the NCAA championship in March. His winning time in the 500-meter freestyle was nine seconds above the college record set by Katie Ledecky for Stanford University in 2017. Thomas finished fifth in the 200-meter freestyle and last in the 100-meter freestyle final.

“It is very unfortunate that Fina made this decision,” said Joanna Harper, a physician who has researched and written extensively on transgender athletes. “Trans women are not dominating women’s sport, nor will they.”

Will any other international sport federations follow the example of swimming? Some predict athletics could be next, drawn by Fina’s solution to the thorny question of what levels of testosterone should be allowed. The swimming rule prohibits transgender women from competing unless they begin medical treatments to suppress testosterone production before going through one of the early stages of puberty, or at age 12, whichever is later. There is much debate in the medical community about this early intervention.

Would the Court of Arbitration for Sport (CAS) – a kind of Supreme Court for international sports – annul the Fina’s decision, if challenged? History suggests otherwise.

South African champion Caster Semenya lost her attempt in court to overturn the testosterone rules of athletics, effectively ending her Olympic career. The CAS ruled in 2019 that the athletics policy was “discriminatory” but also “necessary, reasonable and proportionate” to ensure fair play in women’s events.

Two senior CAS arbitrators, including the head arbitrator in the Semenya case, were among Fina’s legal and human rights experts and were convinced that the federation’s policy met the “necessary and proportionate” standard, said Doriane Lambelet Coleman, professor of law at Duke University specializing in sex and gender. She helped write Fina’s policy.

In November, the IOC (International Olympic Committee) warned against assuming, without evidence, that athletes have an unfair competitive advantage “due to their variations in sex, physical appearance and/or transgender status.” But that was just a guiding principle. The IOC has ceded the determination of eligibility rules to international sports federations.

A complex situation can get even more confusing. Say, for example, US swimming ignores FINA policy when the Paris Olympics arrive in 2024. This could leave Thomas in the awkward position of earning a spot on the US Olympic team but being ineligible to compete in Paris. Fina policy would prevail over USA Swimming (United States federation) policy.

Only one thing seems certain, said Tommy Lundberg, a Swedish researcher who has studied transgender athletes: “It will be impossible to please everyone.”