For Transgender Athletes, An Ongoing Search for Inclusion and Fairness

Should elite sports be competitive fairness? Or does maintaining integrity mean that inclusiveness is just as important as playing a level?

The issue, which roiled the pools of water everywhere with the success of Lia Thomas, the Transgender University of Pennsylvania swimmer, burst to the surface again on Sunday. FINA, swimming’s world governing body, essentially prohibited transgender women from the highest levels of women’s international competition.

FINA’s proposal is to create a so-called open category of competition to “protect competitive fairness.” But a separate category is “isolating, demeaning and making the potential for transgender and nonbinary competitors into a spectacle on an international stage,” said Anne Lieberman, director of policy and programs at Athlete Ally, which seeks to end transphobia and homophobia in sports. , said in an email Wednesday.

The attempt to balance inclusiveness and fairness, especially regarding the eligibility of transgender and intersex athletes (competitors with the typical male pattern of X and Y chromosomes) is among the most complex and divisive issues in sports.

Reasoned arguments are made on both sides. Going through puberty as a male provides physical benefits that persist even after testosterone levels are suppressed, such as broader shoulders, larger hands, longer torsos, denser muscles and greater heart and lung capacity.

In January, a joint statement issued by the International and European Federation of Sport Medicine stated that, in part, that high testosterone concentrations “confer a baseline advantage for athletes in certain sports” and that uphold “the integrity and fairness of sport,” benefits “must be recognized and mitigated.”

Yet there has been little scientific research involving elite transgender athletes. And studies have not quantified the testosterone’s precise effect on performance. The governing body of track and field, which has established levels of testosterone on instituted stringent regulations, corrected its own research last year. It acknowledged that it could not confirm a causal relationship between elevated testosterone levels and performance gains for elite female athletes.

FINA left itself vulnerable to critics who charge that it acted hastily and recklessly, taking retribution against Thomas and trying to create a solution that does not exist. The Human Rights Campaign, an LGBTQ civil rights organization, blamed the swimming governing body for “caving in to the ill-informed, prejudiced attacks of a particular transgender swimmer.”

The only known transgender athlete has won an Olympic medal in a women’s competition, the Canadian soccer player Quinn, who was born and identifies as nonbinary in female. And only two openly transgender female athletes have appeared in NCAA titles – Thomas and CeCe Telfer, who won the 400-meter hurdles race for Division II Franklin Pierce University in 2019.

Even in victory, Thomas did not deliver a shattering performance at the NCAA Championships in March. Her winning time in the 500-yard freestyle race was nine seconds off the collegiate record set by Katie Ledecky for Stanford in 2017. Thomas finished fifth in the 200 freestyle and the last in the 100 freestyle.

“It’s very unfortunate that FINA has made this ruling,” Joanna Harper, a medical physicist who has researched and written widely about transgender athletes, told The New York Times on Sunday. “Trans women are not taking over women’s sports, and they are not going to.”

Will any other international sports federations follow swimming’s lead? Some predictable track and field could be drawn to FINA’s solution to the thorny issue of what levels of testosterone should be permissible. Swimming’s rule prohibits transgender women from competing until they begin suppressing medical treatments for testosterone before going through one of the early stages of puberty, or by age 12, whichever occurred later. There is much debate in the medical community about such early intervention.

Should the Court of Arbitration for Sport – A Kind of Supreme Court for International Sports – Overrule FINA’s Decision, If It Is Challenged? History suggests otherwise.

The South African champion runner Caster Semenya lost his track before the court overturned track and field’s testosterone rules, effectively ending his Olympic career. CAS ruled in 2019 that track’s policy was “discriminatory” but also “necessary, reasonable and proportionate” to ensure fair play in women’s events.

Two senior CAS arbitrators, including the lead arbitrator in Semenya’s case, were among FINA’s legal and human rights experts and the federal’s policy met the “necessary and proportionate” standard, Doriane Lambelet Coleman, a Duke law professor who specializes in sex and gender and who helped draft FINA’s policy, said Wednesday in an email.

Last November, the International Olympic Committee cautioned against presuming, without evidence, that athletes have an unfair competitive advantage “due to their sexual variations, physical appearance and / or transgender status.” But this was just a guiding principle. The IOC has ceded the determination of eligibility rules to international sports federations.

A complicated situation could get even messier. Say, for example, USA Swimming ignores FINA’s policy as the Paris Olympics arrive in 2024. That could leave Thomas in the awkward position of earning a spot on the US Olympic team but being ineligible to compete in Paris. FINA’s policy will prevail over USA Swimming’s policy.

The only thing seems certain, is Tommy Lundberg, a Swedish researcher who has studied transgender athletes, told The Times in 2020. “It’s going to be impossible,” he said, “to make everyone happy.”

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