What’s fair in the fairness framework?

World swimming governing body FINA’s decision to restrict the participation of transgender athletes in elite women’s competitions has caused a furore in the sporting community, writes Sandeep Menon

When FINA, the international swimming body, decided to restrict transgender women from competing in the women’s division at the elite level, they opened, rather opened and realised it was Pandora’s box!

Questions, arguments, congratulations and pandemonium followed as sporting federations, eager to be seen as go-getters, sprung to action. The International Cycling Union increased the transition period by two years and halved the maximum level of testosterone to 2.5 nmol/L, the Rugby league suspended transgender players from women’s international competition, and FIFA is consulting on transgender participation. World Athletics praised FINA’s stance while advocating fairness in terms of a level-playing field for women athletes. Restrictions, bans and promises of further research followed as they waxed lyrical about fairness in competition and protecting women. All the PR boxes were ticked.

Rather funnily, there are no transgender women athletes currently participating at the elite level in swimming. Lia Thomas, a US collegiate athlete, is the highest profile transgender woman athlete in their ranks. But that is the fear, leave the door open and it becomes a slippery slope. Women’s sports will suffer.

“If there is a slippery slope, it’s not very slippery,” says Dr Roger Pielke Jr, Professor at the University of Colorado Boulder.

The International Olympic Committee (IOC) has allowed transgender athletes to participate since 2003.

“In 2003, the IOC had a set of requirements (for transgender female athletes to participate). They modified it in 2015 and in 2021, came out with new rules called the fairness framework which has 10 principles for the federations to follow in coming up with their sport-specific policy. So we are in the 20th year of trans athletes being allowed to participate in Olympic sports. Since 2003, there have been around 70,000 Olympians and two transgender athletes. The panic is disproportionate to what is happening.”

Yes, one can argue that the slope can get slippery in the future. Then again, the question of fairness in sports is a multi-layered issue.

While sports like to cover themselves with the blanket of fairness, it is, in many ways, a masquerade. A person with a larger wingspan and height has an advantage in basketball, athletes with fast twitch muscle fibre — like Jamaican sprinters — have an advantage in sprints. In long-distance running, Kenyans and Ethiopians dominate as their genetic makeup and geography give them an advantage.

Or how about the birthplace effect? Where and when you are born plays a huge role in which sport is accessible and desirable. You would bet your house that there won’t be too many world-class winter Olympians from India. “People don’t agree on what the word fair means. For some, it means something to do with who you are. For others, it is fairness in performance,” says Dr Pielke. “I come at this from the perspective of policy and law informed by science,” he adds.

An unfair advantage?

So let’s get into science. Short answer — there is not enough.

"The first place to start where I think everyone agrees is the idea of unfair advantage which is an advantage in competition and not in bone size or how strong your grip is, etc. Also, everyone will agree — and I will focus on transwomen at the moment — there are no studies on performance advantages a transwoman may have and the degree to which the advantage may be mitigated by testosterone suppression or whatever else. We are in an evidence-free zone and that is why people talk about bone structure and body mass. They use it as a proxy,” he says.

“It’s fine for people to have a position but let’s do the science first. My advice would be sport by sport and athlete by athlete. Requirements for MMA (Mixed Martial Arts) will be different from ice skating. We speak of unfair advantage but there is also the issue of safety and risk. So yeah, it’s not like we can have one rule that can cover archery and rugby. If we take evidence seriously, we would have different rules for different sports, which is fine because different sports already have different rules.” So what if it takes two years to do the research? Or five or 10? The likelihood of dozens of trans athletes competing at the next Olympics is slim at best. Regardless, there are laws in place. “There are a couple of points here that have been resolved in sports law already. The burden of proof sits with those who would exclude — that means the sports federation has to prove that an athlete has an unfair advantage. The second is that when we are in a situation of conflicting science or no science, the default position is inclusion. These are legal points,” Dr Pielke says.

The ongoing issue being a matter of sex and gender, people tend to get queasy. “If you had a high level of red blood cells and that made you a great long-distance runner, people would say that is interesting. The fact that it’s wrapped up in sex is the only reason that it is singled out as a biological variation we look at,” he says.

Perhaps so. But the whole premise indeed gets murky as want of understanding means another sub-category of athletes gets mixed up in this quagmire.

“There is a lot of anxiety within transwomen athletes’ inclusion in sport. You see that it somehow affects athletes with sex variations (Differences of Sexual Development). They are women assigned female sex at birth, brought up as girls and identified as girls or women all their lives,” says Payoshni Mitra, CEO, Global Observatory for Gender Equality & Sport.

“IOC suggested a framework on inclusion and fairness. The framework conflated the issues concerning transgender athletes and women with sexual variations in sport,” adds Payoshini. The idea of going back to chromosomal testing has been a major source of concern as well. Especially when it has been proven to be not accurate. The most famous example being Maria Jose Martinez-Patino’s situation. The Spanish hurdler passed the sex test in 1983 to receive her ‘certificate of femaleness’.

She then failed the sex chromatin test, when she forgot to get her gender certificate and underwent a test two years later (she was found to have XY chromosomes, but possessed Complete Androgen Insensitivity Syndrome) and was ruled out of participating in women’s athletics. It set off an avalanche of events that saw her get publicly humiliated, lose scholarships and have massive ramifications on her personal life and relationship.

IAAF restored her licence a few years later but the whole saga remains a black mark.

Politics of sport

So to go back is not an option. But politics of sport is such that there have to be actions, regardless of necessity. The supposed issue with the transgender women athlete remains a first-world one. There are no transgender women athletes in India at high performance.

“Priorities of the federations like FINA are misplaced. It’s a no-brainer that this has become an issue because it shows that the institutions are looking to women’s sports. I didn’t see FINA acting as swiftly in cases of sexual abuse in sport as they did when not a single transwoman was competing at the highest level of swimming,” says Mitra.

It’s about the optics!

It would be in keeping with federations and their attitude too, which are often archaic and laden with inertia.

But the world is moving forward, esports, adventure sports and others are all making massive inroads and giving options regardless of economics, gender or nationality.

Should these legacy sports fail to move with the times, especially in terms of defining fairness and inclusion, they could be left behind. It’s time they invested in their sport’s future.

The whys & the wherefores

Are other sports following suit by tweaking and/or reviewing their eligibility rules?

How did it all start?

A working group found evidence that going through male puberty gave transwomen swimmers a physical advantage that remained even after hormone treatment as part of the transition.

Why did they take the decision?

Growing calls from former athletes, current athletes and coaches necessitated the decision. It went over the top after transgender swimmer Lia Thomas’ success at the US College championships. Other sports too have been keeping an eye on this issue.

The idea of an ‘Open’ category.

FINA is trying to set up an open category and looking into its feasibility. Anyone who meets the eligibility criteria can compete regardless of sex, gender, or gender identity.

What about other sports?

There has not been anything concrete. Few sports like Rugby are banned while others are reviewing

Does it affect transgender men?

No, they can race with men because there is no advantage, if anything it's a disadvantage.