By Nana Soares
We wrote an article in July 2022 about the rules established by FINA to guide the participation of trans women in their sponsored competitions. As highlighted in the article, gender policing in sports is nothing new debate, but it has intensified and taken on new forms in recent years. In the 2020s, in line with wider anti-gender politics trends, gender policing in sports is obsessively focused on trans people. But a year after publishing the article, the scenario has become even more complex. FINA’s decision caused other federations to change their rules globally. Moreover, today anti-trans crusades are no longer limited to elite-level sports but are ramifying towards amateur and school competitions. Such developments required our 2022 analyses to be updated.
A retrospective analysis shows that the decision taken by the International Olympic Committee’s (IOC), in late 2021 — which allowed each federation to define its own rules on the matter — was very unfavorable to trans athletes. Many sports federations have made new rules to exclude athletes based on this ruling, especially in individual modalities. It is not an exaggeration to interpret the decentralization inducted by the IOC as a strategy to “wash its hands”. The spotlight shifted from the Committee and federations started developing exclusionary policies. The new rules established for international competitions are usually followed by the corresponding bodies at the domestic level.
In addition to these new regulations for elite sports, draft bills and laws aiming to bar transgender people – especially girls and women – from amateur or school sports are also multiplying at a rampant pace. This is particularly striking in the United Kingdom and in the United States, countries where anti-trans crusades have geometrically amplified in the last two years. But similar legislations are proliferating in Brazil and Australia.
The main argument of these new rules and draft bills is the alleged competitive advantage of trans [women] over cis women athletes. Restrictions and barriers to trans athletes are, therefore, disguised as concerns over “justice” or ‘equal conditions” for women´s participation in sports. The “defense of girls’ or “women’s sports” is also used to justify the proposed changes. But the decisions that defined these new rules have not been grounded on robust scientific evidence. In fact, since last year, regulations have progressively moved away from being ‘evidence based’ to become more akin to “a matter of opinion’. Let’s take a closer look at the intricacies of these plots.
Sports federations and high-performance sport
Until 2015, the International Olympic Committee’s rule established that trans women who wanted to compete according to their (self-declared) gender needed to undergo gender reassignment surgery. Between 2015 and 2019, the focus shifted from surgery to testosterone levels determining that these athletes’ blood tests should be of a maximum of 10 nanomoles per litter.
In 2019, World Athletics updated its guidelines, reducing the maximum testosterone concentration allowed for women from 10 to 5 nmol/l, a rule much more restrictive than what had been defined by the IOC. Oddly enough, this rule only applied for races raging between 400 m and 1500 m. Its best-known effect was the exclusion of South African athlete Caster Semenya and other two Namibian sprinters – neither of whom are trans – from the Tokyo Olympics.
Two years later, in November 2021, the IOC itself updated its guidelines on the eligibility of trans and intersex people, transferring to each federation autonomy to decide on the matter based on available scientific evidence. The rule also definitely banned gynecological tests. At the time, the IOC reinforced the basic principle that the competitive advantage of trans women should not be taken for granted: objective evidence is required as to prove it.
However, a few months after the US swimmer Lia Thomas became the first trans athlete to win an NCAA swimming championship, the International Swimming Federation (FINA) announced new guidelines banning trans women from elite competitions. As we explained in our 2022 article, the guidelines do not explicitly ban trans athletes. But this is its effect because it only allows a trans woman to compete in female categories if she started transitioning before the age of 12 – which virtually no legislation currently allows. When this exclusionary effect was criticized FINA responded by proposing the creation of a third “open” category for female trans athletes.
If the World Athletics rules had already caused controversies two years earlier, FINA’s decision was a watershed, because it is a very important and traditional federation whose policies influence other sports areas. In the same week when FINA published its new rules, FIFA, World Athletics, the International Hockey Federation, the International Canoe Federation and World Triathlon announced that they would also review their regulations. The World Athletics president has, in fact publicly appraised FINA’s decision. New restrictions in other sports started to be adopted almost immediately and this forced the IOC to also update its policy guidelines at the end of 2022. The new directives emphasize that federations should not revise their parameters only on the basis of “fairness for women” but also consider the ethical standards of inclusiveness for trans athletes.
As soon as the FINA decision was issued, the Union Cycliste Internationale (UCI) toughened its rules for trans athletes’ participation in elite competitions. In June 2022, it halved the maximum level of testosterone allowed for female trans competitors and required proof of at least two years of low testosterone levels. Months earlier, the British trans cyclist Emily Bridges had been declared “ineligible” for the British national championships by the UCI, and the analogue British federation banned trans women from national elite championships. The topic re-emerged in 2023 after US trans athlete Austin Killips won an official tournament. As Brazilian journalist Demetrio Vecchioli underlined, the matter always resurfaces at the UCI when a trans athlete wins a competition.
The situation remains somehow unresolved at the international level, but the British federation announced last May that trans and non-binary people will only be able to compete in an “Open” category, which includes cis men. Or, to phrase it differently: they are indeed banned from the women’s category.
Also in June 2022, the International Rugby League (IRL) banned trans players from international competitions arguing that the organization needed to “undertake research before enabling a formal trans inclusion policy”. The ruling contradicts the IOC’s guidance, which states that a ban can only take place if research already proves it is necessary.
In the following month, two IRL analogs in the UK [England’s Rugby Football Union (RFU) and Rugby Football League (RFL)] recommended that only “players designated female at birth” could play in the women’s category. The RFU further added that the measure was “precautionary” and would be in place until revised data is available. In early 2023, it was the turn of the Scottish Rugby Union (SRU) to ban trans women from women’s categories – a policy that, according to the SRU, will be updated annually and based on new scientific evidence. Trans men can participate in men’s categories as long as a “risk assessment”* is completed and submitted by their club.
In July 2022, while the triathlon international governing body was still reassessing its guidelines, the British Triathlon Federation banned trans athletes from competing in women’s categories and created a third “open” category. The restriction applies to both professional and amateur sport and extends to any foreigner who wants to participate in a women’s category in the country. Trans triathlete Chris Mosier pointed out at the time that no trans woman has ever competed in elite triathlon in any country and that, therefore, banning trans women does not tackle any real problem. It is sheer discrimination.
In August, World Triathlon completed its review. Its new transgender participation policy requires female transgender athletes to show their testosterone concentration remains at less than 2.5 nanomoles per litter continuously for at least two years. In addition, the athlete’s last competition in the male category must have taken place at least 48 months ago.
The current rule for rowing in international competitions is that trans athletes can participate in the women’s categories if their blood testosterone concentration has not exceeded, in the last 12 months, 5 nanomoles per litter. Whereas in the British correspondent federation, the limit allowed is half that (2.5 nmol/l).
In October 2022, the director of the British federation recommended World Rowing to follow the same path as FINA and to create an “open” category for trans athletes. The federation is so determined to follow FINA’s path and fully ban the participation of trans women that, in May 2023, it has taken the matter to a vote among its members. Without offering any new scientific evidence, it asked its 31,500 members to decide whether the current policy should be retained or changed so that “only athletes who were declared female at birth compete in the ‘female’ category”. The voting brought no immediate changes, but the federation does not exclude the possibility of changing the rules at the end of the current competing season.
FINA’s 2022 ruling has also encouraged the International Association of Athletics Federations (World Athletics) to review its policy on women’s sport and trans participation as to tighten its rules. Announced in March 2023, the body’s new guideline effectively bans trans athletes from elite female categories and limits testosterone levels to 2.5 nmol/l, half of what was previously allowed. Not just trans athletes, but all persons with “differences in sexual development” – such as intersex people – should maintain this limit for at least 24 months before competing (which is double the previous limit). Most importantly, restrictions that previously referred exclusively to races ranging from 400m to 1500m now apply to all IAAF’s competitions.
Following FINA’s decision, Swim England announced, in April 2023, that in all its competitions– swimming, artistic swimming, diving, and water polo — only athletes “designated female at birth” will be able to compete in the women’s categories. It also informed that it will create a third category for trans, non-binary athletes or those “designated male” at birth. The rule that will come into force in September allows, however, athletes in amateur sports to self-identify.
Legislative crusades: the USA and the UK
This brief on sports federations´ new regulations shows how in the UK the trend towards restricting the participation of trans athletes is moving fast. This mirrors the country’s political climate as, since 2019, anti-gender and particularly anti-trans attacks have gained increasing visibility and impact. In April 2022, former Prime Minister Boris Johnson declared that “biological males shouldn’t be competing in female sporting events“. The debates and attacks on trans people’s right to identity self-determination also played a role in the resignation of Scotland’s first minister Nicola Sturgeon, which happened shortly after the Gender Recognition Reform. The new Scottish law it should be said, was immediately threatened by the current Prime Minister, Rishi Sunak. As soon as FINA published its new guidelines for water sports, the then UK Culture Secretary Nadine Norris called for all sports federations in the country to follow the example.
But the pressures work both ways: the government puts pressure on sports officials and sports officials put pressure on the authorities. In January 2023, when the British Athletics Federation called for the ban of trans persons from women’s competitions and the creation of a third category, it also declared that its hands were “tied” to adopt such a policy because such a decision could infringe the Gender Recognition Act. The federation then called for changes in the legislation to allow exceptions in sports. A few months later, it effectively banned trans women, after World Athletics, changed its guidelines.
The situation in the US is even more dramatic. Since 2021 there has been an unrestrained avalanche of legislative attacks on trans rights. There are more than 500 laws in this direction. In 2023 alone, there were 56 new proposals at the state and national level aimed at restricting the participation of trans people in amateur or school sports. And at least 21 states have already passed legislation in recent years.
In the state of Oklahoma, the governor sanctioned the “Save Women’s Sport Act” whose semantics draws on tropes of “state emergency” and calls for the preservation of public peace, health or safety. In Kansas, the ban on sports participation now begins at the kindergarten level. As a lengthy Huffington Post story shows, these laws aim at “addressing” non-existing threats: in, at least, five of the states where laws were passed to ban trans youth from competing in school sports – Idaho, Louisiana, Mississippi, Oklahoma and West Virginia – there are no registered trans athletes, either in high-performance competition or in student sports. In Kentucky, only one trans girl who played hockey was banned. Also in South Dakota and Tennessee there is only one athlete per state, and in Indiana, the figures vary between 7 and 9. In Ohio, where the approved law authorizes genital inspections of high school athletes, there is only one trans girl competing.
One of the most repeated arguments raised by those contesting these laws and defending trans athletes’ rights is that these assaults affect not only trans children and youth, but everyone. Especially girls, as the bans and regulations mostly target female categories. An absurd case registered in Utah is illustrative of what these laws mean: parents of children athletes who came second and third place in a competition, requested an investigation of the child who won because she did not looked “feminine enough”. The authorities that indeed investigated the case secretly [i.e. without directly contacting the family], “gathered evidence” through school records to show that the girl “had always been a female”.
Young people and their families are the ones who mostly experience the concrete negative effects of these political and legal battles that are not just local but have a macropolitical magnitude. High-impact litigation has already reached the country’s Supreme Court, as in an intricate case from the state of West Virginia in which the family of a trans teenager challenged the state law arguing the existence of other US laws, including the crucial Title IX, which prohibits “sex-based discrimination” in education. Initially, the judge ruled in favor of the trans teenager, but later he reversed his own decision, alleging the law to be constitutional. One of the excerpts of his argument reads as follows: “I recognize that being transgender is natural and is not a choice. But one’s sex is also natural, and it dictates physical characteristics that are relevant to athletics.”
To show how the issue is a priority of ultraconservative and right-wing forces in the US, suffice to mention that Alliance Defending Freedom (ADF) participated in this litigation, as well as in a similar case involving girls competitors in the state of Connecticut. In April, the Supreme Court ruled against the constitutionality of the West Virginia law, but conservative Judges Samuel Alito and Clarence Thomas publicly opposed this decision.
Pressured by this avalanche of anti-trans legislation, taking place even in Democrat-governed states, president Biden could not ignore the issue. In April, he proposed a change in Title IX which, however, was also criticized. According to the proposal, the ban on trans athletes would be prohibited in schools, especially elementary schools. But the policy also granted “flexibility” to “advanced” competitions without properly detailing what exactly this means.
In an article at The Nation, Frankie de la Cretaz calls the proposition a betrayal of the trans community as it effectively allows athletes to be banned, and raises concerns about the authority of schools autonomously decide on the matter. The article adds that the government proposal reflects the stigmatizing rhetoric of anti-trans groups:
“The rule’s second anti-trans loophole, the supposed prevention of sports-related injury, implies that transgender women and girls are inherently bigger and stronger than cisgender girls, and that cisgender girls will be harmed if trans girls are allowed to compete. There is no evidence to support this. All sports come with the risk of injury, and a cis girl is just as likely to be injured by a larger cis girl as she is by a trans girl on the field “.
Right now, the proposition is still under public review and this process may lead to significant changes, either negative or positive. In any case, the debate about trans women and girls’ participation in sports will continue to rage in the country.
Similar legislative battles have reached Brazil. A survey conducted by reporter Dani Avelar, from Folha de São Paulo, revealed 69 anti-trans draft bills have been proposed at the federal level but also state and municipal level bodies, between February and April 2023. Twelve of these provisions aim to bar trans people from participating in competitions, on the grounds that trans women have unfair physical advantages over cis women because “they were born in a body that produces testosterone”.
One of them was presented at the Federal House, nine were proposed at state-level assemblies and two are municipal-level provisions. In the state of Minas Gerais, bills have been tabled both at the state and municipal levels. Most of these bills aim at establishing “biological sex” as the sole criteria for “gender definition” of male and female competitors. But one provision presented at the municipal level (in the city of São José-SC) explicitly mentions the exclusion of all trans athletes from official sports competitions. Even though this bill has been shelved, it signals the degree of radicalization of anti-trans politics in the country. Two of the 12 bills, including draft bill 1136/2023 presented in Congress, call for the creation of a specific third category for trans people.
As it can be seen, the international scenario has significantly shifted regarding the rules concerning the inclusion of trans athletes at any level of competition. Nothing suggests that these changes and related battles will cool down soon. Rather, on the contrary, if the current trend is sustained, new restrictions are likely to emerge in other sports and countries, further limiting the already timid participation of trans athletes. Curiously, but not coincidentally, the expansive concern with the “preservation of women’s sports” continues ignoring the absence of proper financing for women’s sports at all levels. If the appreciation and protection of women’s participation in sports were the real issues at stake, the attention should be shifted from moral panic and sexual panic of women being threatened to the dire realities faced by women athletes in their daily lives.
Trans Athletes: A narrative analysis – This is signals
How Women’s Swimming Got So Transphobic – The Nation
Patriarchy, not biology, disadvantages cis women in sport – Maysa Pritilata
* This is the explanation provided by the RFU: “For trans men/boys who wish to play rugby it is important that the differences between biological males and females are recognised. When participating, the potential increased injury risk for trans men/boys is with themselves, as opposed to other players. Therefore, it is important that a risk assessment is carried out and informed consent is obtained to ensure the playing environment/level is appropriate and the potential risks are understood.”. See in full at: https://www.englandrugby.com/dxdam/cc/cc222f52-677f-43f8-a4f9-75735f120986/RFU%20Gender%20Participation%20Policy%20FAQs.pdf