FINA announces policy to protect integrity of women’s elite swimming competitions - Australian sports should follow their lead

FINA announces policy to protect integrity of women’s elite swimming competitions - Australian sports should follow their lead

FINA’s decision

In an astonishing outbreak of courage and common sense, on 19 June FINA, the world governing body for competitive swimming, voted by a majority of 71.5% to adopt a new policy that will protect the integrity of international women’s swimming competitions.  

Side-stepping the endless debate about how much male advantage is retained by trans athletes after hormone suppression and how much is too much for them to compete fairly in the women’s category, FINA has simply ruled that anyone who has passed through male puberty will not be eligible to compete in women’s swimming. In order to answer the demand for trans inclusion, FINA has instead established a working group charged with developing the framework for a new, open category that will allow transgender athletes to compete fairly.  

The move has been greeted as good news by the many female swimmers who have been pleading for regulators to provide much-needed leadership on this issue.  

The record-breaking success of American trans-identifying swimmer Lia (formerly William) Thomas in US women’s events, following a very mediocre performance in the men’s category (where William placed #462), has proved that the potential for trans inclusion to extinguish fairness in women’s competitions is not hypothetical. In light of Thomas’ Olympic intentions and the failure of the International Olympic Committee (IOC) to grasp this particular nettle last year, female swimmers around the world will be grateful for the certainty FINA has now provided. 

Kieren Perkins wrongly suggests that Australia’s “Guidelines for Inclusion” are adequate

Whether Australian Swimming will follow where FINA has led is less certain. Kieren Perkins, two-times Olympic swimming champion and newly-appointed CEO of the Australian Sports Commission has responded to the FINA announcement by reminding Australian sports, including swimming, that Sport Australia already has “a world-leading transgender policy in place that was drafted in conjunction with major codes and the Human Rights Commission””

Unfortunately, as Women’s Forum Australia has previously pointed out (here), the Guidelines for inclusion of transgender and gender diverse people in sport (hereafter, Guidelines for inclusion) Perkins refers to, fail to engage with the issue of fairness or safety to women in sport and are themselves the subject of controversy.

Sport Australia has provided contradictory answers to Senator Chandler’s questions about who initiated the Guidelines for inclusion but we know that they are the product of a secretive partnership between the Australian Human Rights Commission (AHRC), Sport Australia, the Coalition of Major Professional and Participation Sports (COMPPS) and a list of LGBTIQ+ advocacy groups that the AHRC has refused to disclose. There is no suggestion that sports scientists were included in these secret discussions and the AHRC admitted that no risk assessment had been carried out on how the Guidelines for inclusion would affect women in sport. In the words of Dr David Hughes, the Chief Medical Officer of the Australian Institute of Sport, the Guidelines for inclusion were:

“never intended to be a scientific document and were never intended to be a medical document. They are directed at sport administrators to advise sport administrators how they could, if they so choose, operationalise the [Sex Discrimination] act.”

So, to be clear: sporting policy which impacts Australian women and girls involved in sport at all levels has been decided on the basis of a covert consultation that took no account of their interests and no account of science.

From Perkins’ comments to the media this week, it seems he may be unaware of these facts. As The Age reported, Perkins has perversely directed criticisms at FINA’s decision that should rightly be directed at the Guidelines for inclusion, which he recommends as authoritative. For example, Perkins “questioned the transparency of the FINA process” even though this is clearly set out in FINA’s policy, where it is explained they received evidence from three specialist groups − an athlete group, a science and medicine group, and a legal and human rights group. Perkins also suggested that FINA has yet to produce scientific evidence for the claim that ongoing male biological advantage is sufficient to justify their new ruling:

“I read FINA talking about ‘the science’ has been proved. What proof? Everything that I have seen suggests that, actually, we’re not really sure yet. When you talk to medical professionals who are dealing directly in this environment, there isn’t clarity without compromise with the science of it all.”

This is a striking criticism from someone who upholds Australia’s Guidelines for inclusion as the model of best practice, despite the fact that these took no account of science at all.

Why should women have to disprove male advantage to justify the preservation of a single-sex category? 

Perkins is adopting a line of argument favoured by trans advocates because it justifies inaction (potentially endlessly) on the basis that we cannot know, to a precise degree a) the degree of male advantage retained after hormone suppression, and b) the extent to which such advantage renders trans inclusion in the female category unfair to women. The question is endlessly complicated because the extent to which any male advantage decides the outcome of a competition will vary between sports. Given the small number of trans athletes competing at elite level (so far), the novelty of these arrangements, and the fact that all elite athletes are, in the words of US sports academic, Doriane Coleman, “freaks of nature [whose] … success can be largely attributed to their unusual physical traits”, there is simply an insufficient sample to reach precise answers about the extent to which trans inclusion will disrupt women’s sport.  

That fact alone, as the world-renowned sports scientist, Ross Tucker, has pointed out, should:

“be a signal to defend the necessary protection of a female category in sport … We should not be including (biological males who identify as female) into women’s sport, and then seeking a way to prove that they don’t belong. That to me is totally upside down.”

The fact that Perkins uses the “insufficient science” argument as the rationale for encumbering women’s sport with the unfair burden of disproving male advantage, indicates that the preservation of fairness to women is not his highest priority.

The focus on suppression of endogenous testosterone as a means of adjusting for the unfair competitive advantage of XY female athletes arose in the context of intersex inclusion in women’s Olympic competitions. One of the primary objectives of the Olympic Games is to create a level playing field that will allow athletes from poorer countries – where limited medical screening means that intersex variations go undetected – to compete equitably. Discussions about the competitive advantage of female athletes like Caster Semenya, who was belatedly discovered to have XY chromosomes, focused on testosterone as a key source of this unfair advantage and suggested that artificial testosterone suppression might offer a solution in these circumstances.

In May 2019, the International Association of Athletics Federations (IAAF) announced that the Court of Arbitration for Sport (CAS) had accepted its newly drafted Eligibility Regulations for the Female Classification (Athletes with differences of sex development), which required XY female athletes to maintain endogenous testosterone levels below 5 nmol/L (unless they were androgen insensitive) as a necessary, reasonable and proportionate means of achieving the IAAF’s legitimate aim of preserving the integrity of women’s athletics in the restricted events. 

These arguments are obviously a compromise, designed for the very narrow context of intersex inclusion. Proposing this as the basis for deciding the very different question of trans inclusion, where perhaps nothing other than gender identity distinguishes a transwoman from the rest of the male population, is an unjustifiable stretch. In this context, aspects of male advantage beyond simple testosterone levels should obviously feature in the equation too; the residual advantages of male puberty – height, wingspan, lean body mass, heart size, cardiac outputs, haemoglobin mass and anaerobic capacity – clearly create advantage sufficient to allow mediocre male athletes who transition gender identity to exclude women from their own competition.

The qualification of Laurel Hubbard for the 2020 Olympic women’s weightlifting, the record-breaking performances of Lia Thomas (swimming) and Rachel McKinnon (cycling) and the potential for Emily Bridges (cycling) to follow in this vein, have provoked responsible administrators to step in and draw an unambiguous line at male puberty. In October 2020, World Rugby became the first international federation to prohibit “transgender women who transitioned post-puberty and have experienced the biological effects of testosterone during puberty and adolescence”.

Pushing in the opposite direction, the IOC’s “Framework”, issued at the end of 2021, left eligibility decisions up to individual sports bodies but strongly implied that these bodies would need to prove the case for not including trans competitors:

“Until evidence determines otherwise, athletes should not be deemed to have an unfair or disproportionate competitive advantage due to their sex variations, physical appearance and/or transgender status".

FINA has now done the hard work needed to justify the protection of female sport. In so doing, they have provided a blueprint that other authorities seem likely to follow. UCI (the world governing body for cycling) had already acknowledged the need to review its trans inclusion policy to protect fair competition for women. FIFA (the world governing body for soccer) and World Athletics have also announced they are in the process of reviewing their trans inclusion policies. Sebastian Coe, President of World Athletics, has always been adamant that he regards fairness for females in athletics as the superior priority over demands for trans inclusion:  

'And I’ve always made it clear: if we ever get pushed into a corner to that point where we’re making a judgement about fairness or inclusion, I will always fall down on the side of fairness.

Questions remain, and arguably always will remain, about the extent to which testosterone suppression diminishes male advantage post-puberty. Even more nebulous questions could be posed about the point at which we can regard these advantages as sufficiently diminished as to pose no threat to safety and fairness for women. On the other hand, it is clearly impractical to suddenly ignore the self-evident male/female performance distinctions that provided the rationale for a separate category for women in the first place, pending the production of “scientific evidence” to demonstrate that a protected category for women is still necessary. Perhaps FINA’s novel suggestion of creating a third, “open” category will provide a way out of an otherwise interminable debate.

How will these international changes affect the decisions of national sporting administrators?

On the other hand, FINA’s decision will not end that debate overnight − trans advocates who are appalled at FINA’s decision are already proposing taking the matter to CAS for arbitration − and women’s advocates will need to continue efforts to ensure these international rulings are reflected in changes to national regulations. In this way, the burden of defending the female category and pushing back against activist-written guidelines that encourage sporting codes to neglect their responsibilities to women, will fall to female athletes and their advocates.

The threat of professional ruin used to silence female swimmers in the University of Pennsylvania swimming team who objected to Lia Thomas in their meets and in their changerooms demonstrates the vulnerability of young female athletes whose sporting careers are still ahead of them. Senior and retired female athletes have a particularly important role in advocating on behalf of their younger colleagues. For example, the support of Nancy Hogshead-Makar, an Olympic swimming champion and founder of Champion Women, a non-profit group that provides legal advocacy for girls and women in sports, was pivotal to getting UPenn swimmers’ message out, while preserving their anonymity. In Australia, Katherine Deves’ advocacy through Save Women’s Sport Australasia, has been pivotal in drawing attention to the disadvantages of trans inclusion even for young girls playing community level sport.

Australia’s female swimming greats including Dawn Fraser, Emma McKeon, Emily Seebohm, Cate Campbell and Giaan Rooney, have presented an admirably united front in calling for the current international reform. As Seebohm recently admitted:

“No one wants to be the first to say anything because you’re scared of cancel culture … if you say one wrong thing, you’re gone. Once one Australian athlete said something, it was like ‘let’s stand together’. Because we all feel the same, it’s just that we were all too scared to be the first to say anything.”

On the other hand, we still have a CEO of the Australian Sports Commission recommending sporting codes adhere to activist-drafted Guidelines for Inclusion without, apparently, realising that these exclude women. We still have nine major sporting codes that failed to acknowledge, let alone act upon, peer reviewed articles demonstrating male advantage in sport when it is presented to them by Australian sports science academics. Further work is clearly needed to reverse the work of activists in capturing and/or intimidating the institutions that are supposed to defend equal opportunity for Australian women and girls in sport.

The example of UK cycling, however, provides some hope that changes at the international level can be leveraged to bring domestic sporting codes into line. In the same way that Australia’s peak sporting bodies partnered with activists to produce the Guidelines for inclusion, so too British Cycling partnered with Stonewall and Pride Out to produce its 2020 Transgender & Non-Binary Participation Policy. Under this policy, the recently-transitioned 21-year-old Emily Bridges (formerly Zach) was eligible to compete in the British National Omnium Championship.

Britain’s women cyclists do not need reminding of what “trans inclusion” means for them. They were required to standby in 2018 while Rachel McKinnon, a transgender cyclist representing Canada, carried away gold in the women’s world championship sprint for the 35−39 age group setting a new world record in the process. Again, in 2019 McKinnon took the gold medal at the World Championships in Manchester, and again beat (her own) world record. Faced in 2022 with Bridges’ registration for the national championships, it must have seemed like a “do or die” moment for elite female British cyclists. Supported by many in leadership positions within British Cycling, these women appealed to UCI to intervene, threatening to boycott the event if their concerns about fairness were ignored. Given the high stakes for all competitors at this level, this is not a threat these women made lightly. In the event, their efforts were successful in persuading British Cycling to suspend Bridges’ registration, pending a review of their inclusion policy.

In the end, perhaps British Cycling’s decision was not grounded in moral or scientific concerns, so much as in the practical necessity of administering a national sport. It transpires that female athletes can be prevented by trans competition from achieving the domestic ranking necessary to proceed to the international level. The potential result is that Britain (in this case) might have fewer women progressing to international level because the UCI regulations would not permit transwomen to compete. When the cost of “trans inclusion” at domestic level translates into reduced representation at the international level, national sports administrators suddenly have a strong incentive to bring their policies in line with the international standard.

This is grounds for optimism that FINA’s example will eventually trickle down to affect women’s sport at national, state and even community level. This happy outcome, however, is by no means certain. Continued advocacy will be needed to protect women’s sport in Australia and to expose the problems that flow to women playing at all levels of sport as a result of the Guidelines for inclusion