FINA trans swim policy shows 'equal but separate' is actually exclusion

This is a column by Shireen Ahmed, who writes opinion for CBC Sports. For more information about CBC's Opinion section, please see the FAQ.

On Sunday night, the international governing body of water sports (FINA) effectively banned transgender women from competition. FINA labelled it a "gender inclusion policy," but what it actually does is exclude trans women. It went into effect on Monday.

The new policy requires trans women athletes to have completed sex reassignment (transition) by the age of 12 to be eligible to compete in traditional women's categories. If trans women have experienced puberty as a male, FINA has decided these athletes may have an advantage.

In an attempt to not appear blatantly exclusionary, FINA has formed a working group to create an "open" category for trans women to be able to participate in some events. No one is quite sure what "open" entails — including FINA, which will spend the next six months trying to parse it out. It appears to be some haphazard "equal but separate" plot.

The reality is that all these barriers render it highly unlikely that trans women will have an opportunity to participate in any FINA events, which also include diving, water polo, artistic swimming, high diving and open water swimming. Trans activist and triathlete Chris Mosier tweeted: "This is the largest ban on trans women in sport we've seen to date."

Trans activists have been very vocal about how damaging and unfair these policies are. Invalidating someone's identity because the propaganda against trans communities is particularly vicious and unrelenting is not an acceptable reason to ban athletes from a sport they love. 

Women's bodies policed

I am a hijab-wearing woman and women like me were banned from playing soccer and basketball at a professional level due to policies created largely by powerful men in boardrooms. They were usually ill-advised by women who campaigned that women in headscarves were all oppressed. They decided that hijab was dangerous and did not belong on the pitch or court. We know this is not true. They never consulted my community or people like me. And for years women's bodies were policed and they were excluded from sports. It will take generations to engage them in elite sports at those levels. 

Fast forward to now. How many trans advocates and athletes were included in the creation of this policy? Who sits at the table of this working group? We know of a specific American "working group" that is viciously anti-trans and whose agenda is to exclude trans youth from sports altogether. Selective inclusion is not inclusion at all. 

Trans women participating in sports does not put women's sports in peril. The frantic and erratic manner in which this issue is navigated would seem like there is a crisis or war against women in sport. This is incorrect and laughable. 

James Pearce, the spokesperson for FINA president Husain Al-Musallam, told The Associated Press that there are currently no trans women competing in elite levels of swimming. None. This moral panic is unnecessary and hurts sport. 

The worst part is, other federations may be likely to follow suit. 

Earlier this year, USA Swimming enforced a new policy on transgender inclusions which ended the career of University of Pennsylvania swimmer Lia Thomas. Thomas was the centre of much debate due to her winning times and was deemed a threat to women's sports. This is unequivocally untrue.

Thomas' swimming career has now all but come to an end. In an interview with CNN in May, Thomas explained an important fact about being a trans athlete. "Trans people don't transition for athletics. We transition to be happy and authentic and our true selves."

Trans people don't transition for athletics. We transition to be happy and authentic and our true selves.- Swimmer Lia Thomas

U.S. women's soccer team star Megan Rapinoe believes inclusion is paramount. "Show me the evidence that trans women are taking everyone's scholarships, are dominating in every sport, are winning every title. I'm sorry, it's just not happening." 

This policy from FINA violates the Sixth Principle of the Olympic Charter that states: "Any form of discrimination with regard to a country or a person on grounds of race, religion, politics, gender or otherwise is incompatible with belonging to the Olympic Movement." Nor does the policy align with 2021 International Olympic Committee principles on human rights. The IOC guidelines moved away from basing eligibility on testosterone levels and having individual sports decide.

I asked Dr. Katrina Karkazis, bioethicist, author, and professor at Amherst College to explain why the FINA policy is flawed.

"This policy flies in the face of the recent IOC framework which is grounded in human rights principles and says that policies like these can violate bodily integrity and privacy," she wrote. "The new policy deploys an outdated interventionist clinical framework that many UN agencies and governments have said violate human rights and uses an open category as punishment for those who resist medicalization of their bodies."

Dr. Karkazis said the evidence used to uphold transphobic policies is also flawed.

"The IOC framework also urges that policies should avoid presumption of advantage and be based on robust evidence. FINA has not revealed what evidence they reviewed nor who reviewed it, but many oft-cited studies conclude that there is not yet enough scientific evidence to support specific policies about transgender or intersex athletes. This is not surprising as this is a very nascent area of research."

If FINA is not transparent about the science they use to propel these policies, if there aren't any trans women swimmers at this level, then unjustly implementing a policy like this is alarming and dangerous. FINA's equal but separate approach to banning people from sport is fueling transphobic behaviour in society. Trans children are watching and we know that they are at risk for mental health struggles and barriers. Particularly when politicians are targeting them and restricting or banning their access to health care. 

We know that sports federations can be on the wrong side of history. This is another one of those times.