The Fédération Internationale de Natation (FINA), the international governing body of aquatic sports as recognised by the International Olympic Committee (IOC), recently issued their 'Policy on eligibility for the Men's and Women's competition categories', which effectively, and controversially, operates to restrict transgender women athletes from participation in women’s elite (and vice versa) aquatic sports competitions - the FINA World Championships, World Cups, Grand Prix, World Leagues, and World Series events and tournaments, and other international competitions events, and to set FINA World Records at FINA Competitions. The policy came into effect on 20 June 2022.
While FINA's policy operates in relation to both transgender men and women, much of the commentary on the topic of transgender athletes, and certainly in aquatic sports since the FINA policy was announced, has focused on the case of male-to-female transgender athletes (transgender women) and a so-called 'male advantage+'. In accordance with FINA's new policy, unless a male-to-female athlete can establish to FINA's comfortable satisfaction* that they have not experienced any part of male puberty beyond Tanner Stage 2^ or before age twelve (whichever is the later), they will not be eligible to compete in the women's category of elite competitions.
What is the sport trying to achieve?
Questions of eligibility in sport can often be ethical decisions that a sport at a governing level needs to make. In some sports, the decision to rule transgender athletes as eligible or not is based upon the competing interests (generally) of safety, fairness, and inclusion. Some sports have traditionally attempted to balance these somewhat competing interests, while other sports seek to prioritise them. We all want safe sport, but ultimately what is fair to some athletes may be noninclusive to another group of athletes. As such, sport may be left with an ethical dilemma.
The IOC issued its own ‘Framework on Fairness, Non-Discrimination and Inclusion on the Basis of Gender Identity and Sex Variations’ in 2021. Without being at all determinative or instructive on the matter, the IOC ruled that it was the responsibility of each sporting governing body to determine how an athlete may be ‘disproportionately advantaged in competition’.
In the case of aquatic sports as governed by FINA, they state in the policy that they are seeking to ensure that we "see biological females in finals, on podiums, or in championship positions" via the enforcement of eligibility standards based on biological sex or sex-linked traits. In doing so, FINA have applied a fairly general approach without a great focus on an individual assessment of each affected athlete's 'advantage'.
What about inclusion? What is this 'open' category that may develop?
The new FINA policy makes note that:
"No athlete is excluded from a FINA competition or from setting FINA World Records based on their legal gender, gender identity, or gender expression."
However, noting that inclusion is important (at an elite level, and certainly to a part of our community that may already feel largely excluded on and off the sporting field), under part G. 6. of the new FINA ‘gender inclusion policy’, an ‘open' category may be developed in the future to allow transgender athletes to continue to compete in some events without regard to their sex, their legal gender, or their gender identity.
What does this mean for athletes?
1) Certification of chromosomal sex
Under the Eligibility Criteria in part F. 2. of the policy, all athletes must "certify the chromosomal sex with their Member Federation in order to be eligible for FINA competitions. Failure to do so, or provision of a false certification, will render the athlete ineligible."
Rule C 7.2 of the FINA Constitution states that there "can only be one (1) body recognised by FINA as Member and as the only national governing body for Aquatics in a country or Sport Country". In Australia that one FINA Member Federation is Swimming Australia. Water Polo Australia, Artistic Swimming Australia, Diving Australia, and Masters Swimming Australia are all somewhat subservient to Swimming Australia in regards to their aquatic sports being advocated at an international level (in-part) by Swimming Australia. (Other countries approach this issue differently, such as the USA, where all aquatic sports have established an umbrella organisation, 'US Aquatic Sports' for the purposes of being FINA's Member Federation for the USA.)
As such, all Australian athletes competing in elite FINA competitions - numbering around 820 according to available FINA numbers, from swimming as well as water polo, diving, artistic swimming, and masters swimming - must certify their chromosomal sex with Swimming Australia in order to be eligible for either women's or men's categories going forwards under the policy.
2) Assumption of risk - water polo and high diving
In addition, eligible transgender men competing in men's competitions in Water Polo and/or High Diving must complete and sign an 'Assumption of Risk Form' in Appendix One of the policy.
Water Polo athletes will be required to "acknowledge and accept the possible increased injury risk associated with transgender men competing in the men's competition category in Water Polo alongside males who are statistically likely to be stronger, faster, and heavier than transgender men".
Transgender men competing in High Diving will be required to also acknowledge their increased risk of competing in the men's competition "given the demands of the discipline".
Both groups of athletes will also waive FINA from liability and release the governing body in relation to any loss, injury, death, or other damage.
What does this mean for Swimming Australia, Water Polo Australia, Artistic Swimming Australia, Diving Australia, and Masters Swimming Australia?
The gap between the FINA Member Federation constitutional requirement and the separation of the various aquatic sports in Australia as unique and largely autonomous corporate entities with distinct membership, participants, and corporate objectives may make the application and enforcement of such eligibility rules 'clunky' or confusing.
What legal requirement does a water polo athlete (for example only) have to certify their eligibility with Swimming Australia (a body to which they are not a member of, subject to, and may not be obligated to or under the jurisdiction of in any formal way)? Further, what legal requirement does any of the other aquatic National Sporting Organisations have to Swimming Australia in relation to eligibility?
Ideally, as they are responsible for their own sports in all other areas (such as coaching, team selection, pathways development, and other sport specific requirements), the eligibility certification process required under the new policy may be "outsourced" to the relevant national sporting organisation via an agreement between it and Swimming Australia. Alternatively, Swimming Australia may take this process on as a 'fee-for-service' to the elite athletes from the other aquatic sports in Australia?
However the new policy is to be complied with at a practical level, the nature of FINA's Constitutional recognition of Australian aquatic sporting bodies (or not) may yet cause some existing gaps to widen up.
With this significant undertaking now being rolled out by FINA, is it time for aquatic sports in Australia to establish a new 'umbrella' organisation as the FINA Member Federation for Australia? Each of Swimming Australia, Water Polo Australia, Artistic Swimming Australia, Diving Australia, and Masters Swimming Australia would effectively be members of the new entity and direct the required resources to it for the purposes of streamlining relations between FINA and the various aquatic sports in Australia.
What does this mean for other sports?
The move has already created ripples in the sporting world with the International Rugby League (IRL) making the decision to immediately ban transgender athletes competing ahead of this weekend’s representative round and from competing in the upcoming women’s World Cup.
Cycling’s governing body, the International Cycling Union (UCI) updated its eligibility for transgender athletes requiring an increased time period on low testosterone and lowered the maximum accepted level.
What about non-elite level sport?
Whilst this is a policy that concerns only the elite level of competition, some transgender advocates are concerned that there will be a ‘trickle-down effect’ to the community level.
Administrators of community/grassroots sport and above should discuss their needs and concerns as regards safety, fairness, and inclusion in non-elite sport and those of their playing groups at the District and State Sporting Organisation level and above (if necessary) at the National Sporting Organisation level. Ideally, every sporting organisation in Australia should have at least a basic understanding of the often competing interests of safety, fairness, and inclusion in their sport, for their participants.
Like any ethical dilemma, the devil will be in the detail of a gender inclusion policy at any level of sport. Only now, the world is watching.
Contact Game Legal for a brief initial discussion at no charge if this topic is a concern for your sport and your participants.
Our Principal Lawyer, Mat Jessep, has been the subject coordinator and lecture of 'Sport Integrity & Ethics' at Victoria University in Melbourne since 2020. Mat also teaches 'Sports Law' at the University of Technology Sydney and teaches 'Esports & The Law' as a Senior Fellow at the University of Melbourne Law School.
This article includes research conducted by Anna-Jane Lark, Paralegal, Game Legal.
+A leading Australian researcher, Associate Professor Ada Cheung, a clinician scientist and holder of an Australian Government National Health and Medical Research Council (NHMRC) Fellowship and a Dame Kate Campbell Fellowship in the Department of Medicine (Austin Health), The University of Melbourne, has cast doubt on this finding and argued that it is unclear whether there is a biological advantage for transgender women in sport because ‘no research’ has been done into female swimmers or elite athletes that are transgender. This approach has been advanced by Dr Catherine Ordway, sports law academic at the University of Canberra and Senior Fellow at The University of Melbourne, who has questioned the decision considering ‘there are so few transgender athletes’ and the ability to use ‘an individual case-by-case approach’. Dr Ordway has argued that this was the most obvious way to establish ‘whether or not there is an unfair competitive advantage’.
*The comfortable satisfaction standard of proof lies between the mere balance of probabilities and the higher standard of beyond reasonable doubt.
^Tanner Stage 2 marks the beginning of physical development where hormones begin to send signals throughout the body.