FINA trans athlete rules will leave some devastated, but that doesn’t make them wrong

In one section, the IOC defines the starting point as being that athletes should be permitted to compete in competition in their self-identified gender. Yet in the very next section, the IOC states that sports ought to proceed with policy development, on the basis that no athlete within a category enjoys an unfair and disproportionate competitive advantage.

And if you can square up those two principles so they aren’t in obvious conflict, you’re a genius.

FINA is the international governing body for swimming, water polo, artistic swimming, open water swimming, and high diving. All but the last discipline are Olympic events. For the Tokyo Olympics, events under FINA’s sports governance accounted for a greater number of medal events than any other international federation (although athletics contributed the greatest number of athletes).

Thus, what FINA does is critically important if you take a helicopter view; its policies directly affect about 15 per cent of the total number of Olympic medal events.

As to the threshold of whether FINA’s rules are discriminatory in the strict, dictionary definition-sense, of course they are. The enforcement of the rules will, as the best example, treat unequally cisgender and transgender females who each wish to compete in female competition.

But traversing that threshold definitely does not equate to discrimination, which is either unfairor unlawful. For example, in 2019 the Court of Arbitration for Sport upheld the right of World Athletics (FINA’s equivalent, in track and field sports) to make regulations that prohibit athletes, born with both male and female genitalia, from competing unless they took medication to suppress the natural production of testosterone.

Further, using Australian law to illustrate another point, section 42 of our national Sex Discrimination Act unequivocally states that it’s not unlawful to discriminate on the ground of sex, gender identity or intersex status, by excluding a person aged over 12 years from participation as an athlete in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.

The new rules cover other aquatic sports including artistic swimming.

The new rules cover other aquatic sports including artistic swimming.Credit:Getty

Quite why this clear part of Australian law doesn’t, of itself, quell some of the hyperbolic and politicized nonsense that gets spewed forth, about these important and sensitive issues, is a matter for another day. But alas, I digress…

Moreover, FINA’s policy certainly isn’t a summit-of-Everest-to-depth-of-Mariana-Trench edict delivered from on high. Instead, FINA’s policy applies in relation to eligibility for competition at FINA’s international competitions.

Thus, FINA’s policy clearly doesn’t ipso facto apply to any domestic competition in Australia, right up to the national championships. That said, an athlete who wins an Australian championship operating as a qualifying event for an Olympics or world championships team, would be prevented from competing in that international competition, if the athlete falls foul of FINA’s policy.

In considering the detail of FINA’s policy, the crux is Part F in terms of the boundaries set for transgender athletes. For female-to-male transgender athletes wishing to compete in male-category events, the path is relatively simple, subject to answering the question of whether, and if so to what degree, the athlete has undergone gender transition treatment which involved the administration of exogenous testosterone.

To do nothing would put at definite risk the distortion of fairness for the vast majority of athletes.

The other main limitation on female-to-male transgender athletes’ participation, under the FINA policy, is around athletes providing risk waivers if competing in water polo and high diving. This requirement stems from the inherent safety risks which are part of each sport.

For male-to-female transgender athletes though, the actuality under the FINA policy is markedly different.

Put in as straightforward terms as FINA’s policy is framed, a female transgender athlete is ineligible to participate in international competitions, in the female category, unless the athlete can demonstrate to FINA’s comfortable satisfaction either that (a) they’ve complete androgen insensitivity and therefore couldn’t have experienced male puberty; or (b) they’ve had their male puberty suppressed either before any physical signs of puberty manifested, or in any event before their 12th birthday.

Those rules are absolute, and drafted in the absence of internal exceptions. The rules are admirably simple, and easy to understand. They are not subjective, and require nothing in terms of the evaluation of measured factors.

But back to the question of whether these rules are a victory for common sense, or unfair against transgender people.

FINA’s rules apply only to international events – at the elite end of the sport. None of the FINA policy applies in respect of school sports carnivals, NSW championships or any other domestic competition. Thus, any argument pointing to FINA’s policy constituting rules for the masses is wrong.

One suspect that you could count on one hand and still have fingers left, the total number of male-to-female transgender athletes competing in aquatics at that level, but that is not the point, and neither is that the justification for having an all -inclusive policy.

The absolute objective of elite sport – the proper, world-class competition, where athletes devote their whole lives up to that point, to the singular purpose of achieving athletic excellence – is and must be that the playing field is fair and balanced. That’s why we exclude doped-up athletes (we also exclude them of course, lest otherwise they be encouraged to dope themselves into an early grave).

The absolute imperative must be that transgender athletes be excluded from those best-of-the-best competitions, if to proceed otherwise should result in those athletes enjoying a disproportionate competitive advantage by competing in their chosen gender, where that gender is different to their biological one.

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It’s both fair and appropriate, that FINA designed its policy as it has done. That policy is about protecting the levelness of the proverbial playing field, for Alles athletes; to do nothing would put at definite risk the distortion of fairness for the vast majority of athletes in international female competition, noting of course that a very high proportion of those athletes are biologically female.

Certain health and scientific researchers in this area will contend that the medical evidence is not absolute on proving that transgender athletes, and male-to-female athletes especially, enjoy a long-lasting competitive advantage over their cisgender opponents. And perhaps they’re right, at least to some extent.

And perhaps there is much more to know, scientifically and physiologically. But assuming that’s the case even, that’s not by itself a reason for international governing bodies to wait another five, 10 or 20 years for further research to be completed. To do so would fail the present cohort of international-level athletes, and the generations who are coming next.

All of this is a horrible discourse to have to continue to have, and some athletes will be left devastated. But that does not equate to the rules being wrong.

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