American swimmer Lia Thomas, who became the first transgender athlete to win an NCAA title in the 500-yard final in March 2022, has lost her lawsuit against World Aquatics (WA).

Thomas decided to begin legal action in January 2024 against this international body’s decision to prohibit participation in the women’s category for anyone who has past male puberty. Despite undergoing the transition process in 2019, she has not competed since 2022.

The Court of Arbitration for Sport (CAS) dismissed Thomas’ appeal, arguing that “she was not a member of USA Swimming at the time of the initiation of the present proceedings; and she did not perform in a USA Swimming domestic “Elite Event” in the female category for the purpose of qualification or selection for WA Competitions”.

“The Athlete cannot do that because she has not been registered for a WA Competition and therefore the Policy and the Operational Requirements have not been triggered, and the Athlete could never satisfy the Eligibility Conditions because she went through male puberty. The Policy and the Operational Requirements and the approval process thereunder cannot be triggered by the USA Swimming Policy”.

“The Policy and the Operational Requirements can only be triggered whenever an athlete is entitled to compete in a WA Competition, which occurs upon registration with WA prior to a competition, or sets a performance which leads to a request for registration as WA World Record. The Panel however notes that, for the time being, the Athlete is not entitled to participate in WA Competitions; nor is there any indication she set a world record.”

“The Panel therefore concludes that since the Athlete is not entitled to participate in “Elite Events” within the meaning of USA Swimming Policy, let alone to compete in a WA Competition, which occurs upon registration with WA prior to a competition or upon setting a performance which leads to a request for registration as WA World Record, she is simply not entitled to engage with eligibility to compete in WA Competitions. The Policy and the Operational Requirements are simply not triggered by her current status.”

For these reasons she “she does not satisfy the eligibility requirements for the “Elite Events” in the female category”, since “only those athletes that are registered to participate in a WA Competition are those who need to establish that they fulfil the Eligibility Conditions”. The CAS concludes by arguing that “The Athlete lacks standing to challenge the Policy and the Operational Requirements in the framework of the present proceedings”.

Although World Aquatics remains committed to being inclusive and fostering an environment of fairness and respect for athletes of all genders, this decision means that Lia Thomas will not be eligible to compete at the Paris 2024 Olympic Games.

In 2022, Lia Thomas won easily in the women’s swimming competitions in which she participated at the university level, causing a great division of opinions regarding her presence in this category.

An intense debate

The participation of transgender athletes in sports competitions has generated intense debate in recent years. On the one hand, there are women who fight for their right to compete in student, collegiate and professional leagues, who firmly oppose the participation of trans athletes. On the other hand, there is a movement that advocates allowing trans athletes to compete according to their chosen gender identities.

In the case of Thomas, her participation in collegiate championships led the National Collegiate Athletic Association (NCAA) to establish a maximum limit of testosterone in the blood as a criterion for a person to be considered eligible for women’s competition. Although Thomas underwent treatments with testosterone suppressants, she still maintains a clear advantage over her rivals.

In 2022, Sebastian Coe, the Olympic champion and head of World Athletics declared that biological differences are inescapable: “gender cannot trump biology”.

After a meeting with the women of the Princeton University swim team, who expressed concern about Thomas’ presence in women’s competitions, Robin Harris, the director of the Ivy League athletic conference, took a stand in favor of the trans swimmer and refused to change the regulations in the middle of the competition, calling those who opposed them “transphobic.”

Bioethical assessment

Defining plasma levels of testosterone as the only factor that should determine whether a man who now defines himself as a woman is on equal terms with the rest of the female competitors constitutes a major error. The physical, metabolic, endocrine and neurological constitution is determined by the genetically determined sex from the embryonic state.

Modifying testosterone levels does not eliminate the masculine configuration in those affected, who will continue to enjoy the physical superiority that their masculinization has provided them throughout their lives.

The establishment of categories for sports competitions is aimed precisely at ensuring that athletes compete in the most balanced conditions possible, that is, under conditions of equality. Ignoring the biological sex is exactly the opposite: it is against equal opportunities for those who, being different, have the same right to them.

Julio Tudela and Cristina Castillo

Bioethics Observatory – Institute of Life Sciences

Catholic University of Valencia

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