FINA’s (international federation for aquatic sports) hasty and secretive vote to ban transgender women from women’s classification in sport is deeply troubling. It is vital to unpack some of the ethical issues when “fairness” is pitched against “inclusion.”

When Lia Thomas glided into the wall at the US NCAA (Div 1 College) swimming championships earlier this year to win the 500 yard event, it set off a cycle that has become all too familiar: a trans woman wins an event in women’s sport, before loud voices, who often have no discernible interest in women’s sport in the first place, shout “it’s unfair!”, and sport organisations wring their hands unsure if they should act. In this case, at the 11^th hour and without releasing the data behind it, FINA asked delegates to vote on a more restrictive “inclusion” policy which placed more limitations on how trans women can participate in sport.

The question then becomes “can trans women actually win?”. By adopting a new “inclusion” policy, FINA answered this question decisively, effectively banning trans women from all disciplines FINA has authority over: water polo, diving, high diving, artistic (synchronised) swimming, open water, and swimming. FINA’s legal fig leaf, the unexplained “open category” for trans women not only “othered” trans women, but took FINA’s policy back to pre-2000, before the International Olympic Committee’s (IOC) Stockholm consensus and the highly criticised chromosomal testing program. Most concerning, the FINA policy also dismisses the IOC’s 2021 Framework on Fairness, Inclusion and Non-discrimination on the basis of gender identity and sex variations – pleading with sports not to assume that biology creates advantage and to review each case on their merits.

FINA’s Gaslighting Policy of “Inclusion”

There is nothing “inclusive” about FINA’s Policy on Eligibility for the Men’s and Women’s Competition Categories. In addition to trans women, the policy now also impacts women with Differences of Sex Development (DSD). As noted by Daniel Juday, inclusive environments go well beyond allowing traditionally excluded groups to participate — “being asked to dance” in the famous Vernā Myers quote. Inclusive spaces encourage the participation through providing more support and care to those who are marginalised and vulnerable. If “diversity is being invited to the party,” Juday argues that “inclusion” is not just choosing the music but “being a member of the party planning committee.” Developing a culture of support and care, which fosters participation at all levels, requires collaboration with those excluded. While it is unlikely that there were any transgender or gender-diverse people voting on the policy, FINA stated that there were transgender athletes and coaches consulted as part of the “Athletes Group,” who provided advice along with a “Science and Medicine Group” and a “Legal and Human Rights Group” to develop this policy.

Impacts of FINA’s Exclusionary New Policy

FINA intends that its policy only applies to the very pinnacle of FINA organised sport, ignoring the very real impact at grass roots. Olympian Cate Campbell, in her speech ahead of the vote at FINA’s Congress, expressed that she hoped swimming clubs around the world would continue to welcome gender-diverse people – much like her own swimming club welcomed her as a nine year old African immigrant to Australia. If Cate had spoken to gender-diverse people, they would have told her such a policy sends a signal to trans and gender-diverse people that they are not welcome in swimming. Worse, it sends a signal to swimming clubs around the world that trans and gender-diverse people can and should be excluded at the local level. Justified as “fairness” over “inclusion,” this was headlined by World Athletics President, Lord Sebastian Coe as “biology trumps gender” – evidence that FINA’s policy has ramifications around the globe. By way of comparison, Australia is seen as one of the leading nations in this space, having developed widely celebrated and implemented guidelines for the inclusion of transgender and gender-diverse people in sport in 2019. Sport Australia’s CEO, Kieren Perkins, warned of “human carnage” through the trickledown effect this ban would have on transgender people and their engagement with community swimming clubs.

How “Fair” is Fair?

Any close inspection of sport will show that sport is not fair, and has never been fair, but there is a level of unfairness sport organisations are willing to tolerate. For instance, the money and technology available to athletes are inequities which are tolerated. Sport also tolerates body differences and inherent advantages that some cis athletes have. Michael Phelps  has a wingspan 10cm wider than his height, and both he and Ian Thorpe have flipper length feet. Yet when considering trans women, every perceived difference between their bodies is noted and perceived as an unfair advantage. Despite the physical diversity in the cis male population, the sporting community often assumes that every pre-transition trans woman is built like Thor! During both the FINA Congress, and on the recent SBS Insight program, it was claimed that trans women inherently “have bigger hands and feet” thereby providing a performance advantage.

When are Trans Women “Women”?

Under the FINA policy, any trans women who cannot provide evidence that they had: “continuously maintained their testosterone levels in serum (or plasma) below 2.5 nmol/L beginning at Tanner Stage Two or before age 12” would be banned from competing in FINA events as a woman. This effectively bans all trans women from competition. The World Professional Association for Transgender Health advised that: “hormones could be started at age 14, two years earlier than the group’s previous advice, and some surgeries done at age 15 or 17, a year or so earlier than previous guidance.” Most alarmingly, the FINA policy reintroduces chromosome testing as a method of confirming who is “women enough” for the category, a method of testing which was abandoned decades ago due to the ethical ramifications and the varied nature of sex in the chromosome space.

The “Science”

The policy has been developed using internally sourced “science” with little transparency. The data relied on has not been released by FINA for peer review. As Perkins further noted everything he has read in terms of scientific research which focuses on trans women shows no such unfair advantage. Dr Ada Cheung, an Australian epidemiologist who works with the transgender community noted that “FINA’s report is really based on a group of people’s opinion, it’s not a gold standard.” The focus for FINA, instead appears to be a focus on the comparison between male and female bodies. This is a false dichotomy when discussing the participation of trans women in sport. The starting point for any research should be trans women. This is due to the significant changes which occur during medical transition which need to be accounted for in any research. If we cannot agree on the starting point, then what hope do we have of any reasonable and responsible response from International Federations?

When “Open” Really Means “Closed”

Many have advocated the solution to trans inclusion in sport is to develop separate categories for transgender people in sport. This has been picked up in the FINA policy, and is to be worked out by the end of the year. Leaving aside the fact there are so few transgender people who participate in sport at all, let alone at an elite level across the various FINA disciplines, so as to make such categorisation solutions unviable, it segregates transgender people. Words matter and separate categories for trans women fails to recognise the gender identity of trans athletes and says to them “You can’t swim with us.” That is the essence of segregation, allowing someone to participate, but not against us, against your own “kind” and policies like this should be called out for it.

Transgender and gender-diverse people ask of us all that we educate ourselves beyond the headlines to act as allies – as issues of fairness and inclusion impact on everyone.

Damien Parry is a PhD candidate researching “The inclusion fairness dichotomy in sport”.

Dr Catherine Ordway is Damien’s primary supervisor, Sport Integrity Research Lead and Associate Professor (Sport Management) at the University of Canberra. Both are members of UC-RISE (Research Institute for Sport and Exercise) where Sport Integrity is a Research Theme.

This article is published under a Creative Commons Licence and may be republished with attribution.