Lia Thomas Seeks To Up-End Fair Play Rules With Trans Challenge To World Aquatics At CAS
Lia Thomas, the first ever transgender swimmer to claim a women’s NCAA American college title in 2022, has asked the Court of Arbitration for Sport (CAS) to overturn a World Aquatics decision to reserve the women’s category for athletes who have not experienced male puberty, AKA females.
The timing of the move, reported by The Times, suggests a desire to make an impact in time for the Paris 2024 Olympic Games but even if Thomas were to convince CAS, such a decision would be unlikely to make any difference this summer.
The hurdles to Thomas winning a CAS challenge are high: when the 24-year-old American swimmer took up the case at the Lausanne-based tribunal in Switzerland last September, World Aquatics swiftly applied to have it thrown out because Thomas had not submitted to the rules and jurisdiction of USA Swimming.
Only members of the domestic federation affiliated to the global regulator are subject to its rules and therefore Thomas was not eligible to challenge global rules, World Aquatics argued. Legal back and forth ensued and Thomas and the Canadian lawyers the swimmer hired face tall barriers in a case that would have to be expedited at what is likely to be an impossibly rapid rate for any success to translate into qualification to the U.S. Olympic trials in June.
Although the deadline for entry to the trials is June 4, for June 15 start of racing, Thomas would not only have to win the case at CAS in order to begin the process of registering with USA Swimming, finding a meet to enter in so that qualification standards could be achieved but would also need judgement to dictate immediate alteration of rules by early may at the very latest for any of it to be even technically possible.
Among other hurdles is the weakness of arguments focussed on “inclusion” because World Aquatics includes any transgender athletes good enough to make international waters in either the category of their biological sex or in the new Open category that transgender athletes have so far declined to take part in.
CAS may also be conscious of making a ruling that would not only affect swimming but several other sex-based sports and their federations, such as World Athletics, that have recognised male advantage and followed World Aquatics in preserving the women’s category for females.
Besides that, Olympic guidelines may not be of much value to team Thomas in legal cases: they are non-binding and allow federations to set rules according to what governors feel is fair and best for the sports they regulate.
Even assuming success at CAS, Thomas and Tyr, the Canadian lawyers arguing the case, are, realistically, looking at Los Angeles 2028 when it comes to any Olympic Dream being lived. Thomas has made no secret of wanting to race in the women’s category at Olympic trials, telling Good Morning America in 2022: “It’s been a goal of mine to swim at Olympic trials for a very long time, and I would love to see that through.”
Meanwhile, Thomas has not competed since the March 2022 NCAA Championships at which Thomas beat three U.S. female Olympic silver medallists for gold in the 500-yard freestyle.
That outcome in Atlanta, Georgia, unfolded just three months before World Aquatics concluded a process in which experts in law, developmental biology, human rights completed some nine months of deliberations and discussions that included female athletes and trans athletes with a voted at Congress in Budapest that ended Thomas’ right to race among females.
Fair Play rules have since been upheld by a decision to ring-fence female sport in aquatics by make eligibility to the women’s category open only to athletes who have NOT experienced male puberty. At the time, FINA/World Aquatics also announced that it would investigate the demand for an open category. There was never any ban on transgender swimmers, all of whom were eligible and welcome to swim in the category of their biological sex.
Thomas’s NCAA victory sparked a bitter dispute over decency, discrimination and the meaning of “inclusion” and the unfair nature of allowing males to compete with females in sports where sex matters, with a following wind. Some of those Thomas defeated submitted official complaints that they had been threatened by NCAA an college officials if they went public with their complaints.
Riley Gaines, who shared fifth with Thomas in the 200-yards freestyle at NCAAs was so riled by the unfair nature of male presence in races and spaces that she put her dentistry studies on hold in favour of going on a nationwide “save women’s sport” campaign.
“We did not give our consent for a full grown male and his penis to be in our locker room,” Gaines told one rally, repeating similar words in media interviews, including a Fox News interview in which she said: “A 6ft 4in biological man dropping his pants and watching us undress … is not something we expected. And when we said so, we were told to shut up or risk our places in college. Beside that, there’s the performance aspect: females should not be asked to try and beat males – its unfair and discriminatory.”
Thomas’s highest ranking as Will, a male in college swimming in his first two seasons at open State University, was 65th, while his best pace would not have ranked him in the best 400 in the USA nor the top thousand 400m freestyle swimmers in the world on a time conversion from short-course yards to long-course metres. However, in female competition, Thomas topped the NCAA race in a time that, when converted to metres and the 50m Olympic-sized pool, suggested a world top 20 placing among females.
Thomas told ESPN in 2022: “The biggest misconception, I think, is the reason I transitioned. People will say, ‘Oh, she just transitioned so she would have an advantage, so she could win’. I transitioned to be happy, to be true to myself.”
The issue is how true Lia Thomas is being to female athletes and why Thomas appears to care rather less about the happiness and fair play of women in sex-based sport, say Save Women’s Sport campaigners.
Sharron Davies, a leading voice among critics of transgender campaigners seeking to include biological males in women’s swimming, tells The Times:
“It’s got nothing to do with inclusion and everything to do with advantage. You broke the story when World Aquatics invited transgender swimmers to take part in a test event for an Open category at the World Cup last autumn in Berlin, they didn’t get a single entry. Had it been an invitation for transwomen to race with women, guess what.”Sharron Davies – image: Sharron Davies with the first copy of Fair Play, the book written with Craig Lord
World Aquatics director Brent Nowicki confirmed that World Aquatics had had to respond to Thomas’ CAS challenge last autumn but noted the case had been kept confidential by agreement of both parties, at least until this week. He noted:
“The World Aquatics policy on gender inclusion, adopted by World Aquatics in June of 2022, was rigorously developed on the basis of advice from leading medical and legal experts, and in careful consultation with athletes. World Aquatics remains confident that its gender inclusion policy represents a fair approach and remains absolutely determined to protect women’s sport.”Brent Nowicki
Davies backed that approach, adding: “Hopefully, CAS will come to a sensible decision and uphold rules guaranteeing the fair and safe play and equality that women are entitled to. You can’t claim to have honoured inclusion if you exclude females from their own category by failing to recognise that sport is sex-based and females face a massive disadvantage, even in the presence of mediocre males.”
Meanwhile, Australian surf brand Rip Curl is coming under fire over its decision to support the presence of biological males in female sport.
The company lost its partnership with world-leading female surfer Bethany Hamilton, an opponent of allowing males in female sport, from the list of athletes it sponsors but now features transwoman Sascha Lowerson on the Rip Curl Women Instagram page as part of its “Meet the Local heroes of Western Australia” campaign.
Hamilton threatened to boycott the World Surf League last year after a ruling allowing biological males into the female category.