The International Swimming Federation (FINA) is recognised by the International Olympic Committee (IOC) for administering international aquatic competitions. As part of its remit, FINA is responsible for putting in place rules and regulations for swimming, diving, water polo, artistic swimming and high diving competitions. As the gatekeeper of the rules and regulations that govern elite, international aquatic competitions, the approach that FINA has now taken to the participation of transgender athletes in elite competitions has significant and far-reaching consequences.
The purpose of this article is to briefly explain FINA’s new policy effective 20 June 2022 (Policy), including the process that FINA adopted in promulgating it. Finally, the following question is posed: did FINA get it right?
FINA’s evaluative process
FINA adopted a thorough, evaluative process in drafting its Policy. It put together a working group that was made up of three smaller groups: an athlete group, a science group and a legal and human rights group. The athlete group was comprised of current and retired aquatic athletes and coaches, including transgender athletes and coaches. The Policy notes that:
“The view of the majority of the Athlete Group was that competitive fairness must remain the primary objective in the establishment of competition categories. Moreover, it was highlighted that by reason of their sex and sex-linked traits, females often enjoy fewer societal opportunities compared to males, including fewer sporting opportunities, and sex-separated competitions are necessary to help address this inequality.”
It is difficult to argue with the athletes group’s view as set out above.
The science group reported that there are sex-linked biological differences in aquatics which are largely the result of the substantially higher levels of testosterone to which males are exposed from puberty onwards. Common sense tells us that the same reasoning would apply to many (perhaps most) sports. In particular, the science group reported that during puberty, in males, testosterone concentrations increase 20-fold whereas testosterone concentrations remain low in females. The science group also reported that a “biological female athlete cannot overcome that [testosterone] advantage through training or nutrition” and they are not permitted to take additional testosterone as it is a prohibited substance.
In addition to the findings of the science group, Hilton and Lundberg, in “Transgender Women in the Female Category of Sport: Perspectives on Testosterone Suppression and Performance Advantage”, Sports Medicine (2021) 51:199-214 at 201 (https://doi.org/10.1007/s40279-020-01389-3) state that:
“Testosterone in males induces changes in muscle mass, strength, anthropometric variables and haemoglobin levels…
Broadly, males are bigger and stronger than females. It follows that, within competitive sport, males enjoy significant performance advantages over females, predicated on the superior physical capacity developed during puberty in response to testosterone. Thus, the biological effects of elevated pubertal testosterone are primarily responsible for driving the divergence of athletic performances between males and females.”
Taking the above into account, among other things, FINA determined that male to female transgender athletes (transgender women) are eligible to compete in the women’s category only if they can establish “that they have not experienced any part of male puberty beyond Tanner Stage 2 or before age 12, whichever is later.” Specifically, transgender women must establish that they had male puberty suppressed beginning at Tanner Stage 2 or before age 12. Among other things, the Policy appears to have the effect that if a transgender woman has experienced (i.e. gone through) puberty she will be ineligible to compete in women’s competitions.
Did FINA get it right?
Arguably, FINA did get it right. The issue is fairness. It is unfair for women athletes to have to compete against transgender women who have had the benefit (in testosterone terms) of male puberty. The science appears clear on this point. If this is correct, then FINA has had to balance unfairness to women generally against unfairness to transgender women who wish to compete. In this regard, given the far greater number of women as compared to transgender women, FINA’s approach appears sound. Given the competitive advantage of transgender women who have experienced male puberty compared to biological women, it is difficult to identify a policy that could be “fair” to both groups. Further, FINA also stated that it will begin work looking at the feasibility of establishing an “open category” that allows for the participation of transgender women in elite competitions.