Lia Thomas Seeks To Up-End Fair Play Rules With Trans Challenge To World Aquatics At CAS

2024-01-25 5 comments Reading Time: 6 minutes
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Male advantage is real in swimming ... and an Open category is on the way - image, cartoonized photo by Patrick B. Kraemer

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.

Lia Thomas, right, and her coach at UPenn Mike Schnur – screenshot courtesy of the Daily Mail

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, before and after transition

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.

For the hostile reaction of Surf fans to Rip Curl’s position, read more in this article – and how Hamilton came to part ways with Rip Curl.

Related links:

Fair Play For Women Report Highlights Harm To Females Forced To Face Males In 35 Sports

Sharron Davies Lifts The SOS Courage Cup On Front Line Of The Women’s Fight To Save Their Sex-Based Spaces & Races

Penn’s Paula Scanlan Reveals Shocking Treatment Of Females In Saga Of Will/Lia Thomas Transition

The 200 Free Time Trial That Became A Yardstick Of How Much Poison Is Being Poured In The Women’s Swimming Pool

Emma Weyant Gets Virginia Sorority Of Success Started As 1st Woman Home In NCAA 500y Free Before Cuomo, Douglass, Walsh & Walsh MaKe It A Cavaliers Riot

Nancy Hogshead-Makar To Trans Champion Lia Thomas: ‘Sports Not Based On Identity But Biology … Advantages Of Male Puberty Cannot Be Rolled Back – It Isn’t Fair”

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5 thoughts on “Lia Thomas Seeks To Up-End Fair Play Rules With Trans Challenge To World Aquatics At CAS”

    Riley Gaines is the worst loser ever, a massive homophobe and transphobe, imagine tying for 5th place and making your whole life about it.

    Group average don’t predict individual stats, performance, if they did, every amateur man should supposedly be able to beat every expert woman. The error of this is immediately apparent. The main factor hampering women’s achievement is not trans people, it’s unequal resource access of which trans people have even less access. Hardly any percent of trans people participate in sport. The so-called “open” category is simply offensive, it would be almost too empty too compete in anyways and it provides for a double-standard where women are forced to compete against men and nonbinary people.

    Bigots gonna bigot

    Dora, much of what you say is daft and lacking in understanding.
    1. “Riley Gaines is the worst loser”… no, she matched Thomas over 200 yards, matched a biological male over 200 yards – her stance is that biological males should not be in female sport because its unfair. She is right on that – as anyone who understands sex-based sport will tell you
    2. she’s no more a phobe of any kind than you are a misogynist – think about it
    3. “making your whole life about it”… I doubt it. She is taking time to campaign until the tide turns… and then, I would imagine she will do many other things in life … most of us do something intently because we are passionate about it… sometimes that passion is for a short period of time, sometimes it lasts a lifetime – and both of those things can be achieved without “making your whole life about it”.
    3. “Group average don’t predict individual stats, performance, if they did, every amateur man should supposedly be able to beat every expert woman.” – your generality begets this generality: I can tell you now that in swimming it is the case that many men who would be nowhere near making an Olympic team among their peers, would be world=-class contenders for international selection if allowed to swim as women. Taking all Olympic events and overlaying women’s swim finals with 15-16yr USA juniors, just two women (both Olympic champions would make the top 8 (final) in those boys races. Go up to World junior men (up to 18 years old) and do the same exercise and only Katie Ledecky makes a boys final and even then does not make the podium – she’s 6th in her very best event and missed the cut for the other finals.
    4. “The main factor hampering women’s achievement is not trans people, it’s unequal resource access of which trans people have even less access.” – irrelevant – you are citing one negative to justify another… ie, lose lose. Both are detrimental to women one way or the other, but the first thing is detrimental to all athletes, it is not something that only pertains to women. Think about it.
    5. “Hardly any percent of trans people participate in sport.” Untrue. Look at the news archive – many have been winning medals and gold at that in a wide range of sports, team and individual. Plus: it took just eight GDR women per Olympic cycle, on average, to cause enormous damage to women’s sport because they were fed male hormones and basically dominated a sport like swimming for the best part of two decades. Your numbers issue overlooks that and the fact that one example of sex-based unfair play is one too many. It’s discrimination: against the rules.
    6. “The so-called “open” category is simply offensive”. No, it is not. There are more transpeople in the world than people with dwarfism. So, do we say placing those with dwarfism in the Paralympics in an appropriate category is offensive? No. we don’t. We celebrate them respectfully and trans athletes would be treated just as respectfully if they recognised the discrimination of having biological males in female sport and accepted, like we all have to accept, that they have to be in an appropriate category. The examples of categorisation are legion in sport. Think about it.
    7. “it provides for a double-standard where women are forced to compete against men and non-binary people.” Untrue. It creates a situation in which biological males can still compete with biological males but be recognised in an open category; and where biological females can continue to compete with other biological females if they choose to do so and accept that means they cannot take male steroids while participating in sport, just like the rest of us. Non-binary is a nonsense in sports that are sex-based … biological sex remains relevant and real, regardless of feelings and life choices.

    So, “Bigots gonna bigot” is just like saying “stupid folk who don’t understand the nature of sport are stupid folk” – not really helpful, neither respectful nor constructive when it comes to finding a solution that protects women’s sport from male advantage – and yes, male advantage is as real as saying ‘the ocean is water’ etc etc.
    Thanks for writing in. Craig

    This is madness. In the attempt to preserve trans rights, they have crushed biological women’s rights.

    Every case is that of a biological man who has transitioned to become a female, defeating biological females in a competition. It is always one way traffic.

    Clearly the only answers are creating separate categories for trans males and females or making competitors compete in divisions of their original gender.

    Craig, your measured response to Dora’s comment is testament to your patience and rationality.

    Thank you.

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