The decision of FINA (International Swimming Federation), at its EGM in June 2022 to adopt a ‘gender inclusion’ policy has highlighted a key governance risk for sporting bodies. That is, the inclusion and participation of a diverse range of athletes in the sport they govern.
A fair competition?
Diversity and inclusion are at the heart of the social pillar of ESG (environmental and social governance) and for sporting bodies the stakes are higher than for most other boards. This is because they need to consider more than providing an inclusive environment for people of all abilities and gender associations to feel supported and valued. Sporting bodies run competitions which athletes at all levels seek to win. Athletes also seek a fair playing field, for example, swimming, jumping or running the same distance or using the same uniform and equipment.
Competitive advantages are not new to sport. In 2009 FINA banned high-performance race suits, which saw world records tumble and a clear advantage for athletes able to wear the Speedo suits. In 2012, Oscar Pistorius competed in the Olympic 400m heats, following a lengthy fight for the right to compete, after the International Association of Athletic Federations ruled his carbon fibre blades conferred an advantage over able bodied athletes. Additionally, the 2021 Tokyo summer Olympics marathon champion, Eliud Kipchoge, has been forced to defend his Nike Vaporfly shoes and the alleged competitive advantage they provide him.
The difference with the FINA decision, is that the issue at hand is a deeply personal one which goes to an athlete’s identity. Further, whilst the decision is directed at elite women’s aquatic competitions, there are implications for grassroots or community sports within Australia. If you consider elite sport is the peak of a very broad-based triangle (with the base consisting of grassroots participants) at what stage, when moving vertically, does participation transform into competition?
Policy issues
The FINA policy now states that male-to-female transgender athletes will be able to compete “if they can establish to FINA’s comfortable satisfaction that they have not experienced any part of male puberty beyond Tanner Stage 2 or before age 12, whichever is later.” 1 In November 2021 the IOC issued its Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations, saying that no athlete should be excluded from competition on the assumption of an advantage due to their gender and encouraged international federations to adopt policies that “reflect the specificities of their particular sports but that include to the maximum extent possible, athletes who, without regard to their sex or sex-linked traits, identify as women.” The IOC further encouraged federations to consider “alternative opportunities within the sport, such as open events.”2
FINA’s decision pertains to elite sport, given that it is limited to FINA competitions. It is not clear where this leaves national and state level competitions. Athletes participating in these events will have trained hard and will also expect a level playing field. From their individual perspective, the stakes are still high and they will expect the competition to be fair, yet there are also issues of inclusiveness to be considered. The result is that national federations will need to provide policy advice to state bodies on the inclusion and participation of transgender athletes.3There is no easy position to adopt, but it is best reached now with time to consider all the issues, rather than the week before competition when an athlete’s entry is being challenged by other athletes on the basis of an unfair biological advantage.
Additionally, the 2021 Queensland netball state championships were overshadowed by controversy when an U17 all male team comprehensively beat an all female team by 46-12. A post game statement by the defeated female team summed up the complex and often emotional issues when sporting bodies choose inclusion over exclusion;“Queensland netball has chosen to put boys’ desire to play competitive netball over and above the needs of female athletes… It’s actions directly undermine the very reason that we have a separate category for women's sport, which exists to give women an opportunity for meaningful competition on a level playing field. It fails to acknowledge the biological differences between men and women and the physical and strength disparity that gives men a distinct advantage when it comes to sport.”
Policy considerations
There are many issues to consider in developing a policy on athlete inclusion and participation. A key one is being clear on the distinction between inclusion in sport and participation in a competition.
Some of the questions a governing body should consider are:
- How does the sport ensure athletes of all abilities and gender associations feel included and supported to participate in the sport?
- At what stage does participation become competition?
- Is there a different policy for junior age level competitions, but with an exclusion for state level competitions?
- Should competitions below state level permit open participation regardless of age?
- Are there some sports where going through puberty as a male before transitioning sex, does not offer a competitive advantage?
- How is the policy communicated so that transgender athletes are supported when they wish to move from participation to competition?
- How will you manage complaints?
As mentioned above, this is an issue to be considered and settled in advance of anticipated disputes. It does not involve locking a sporting body into a fixed policy position, because effective governance involves regular policy review to accommodate the changing environment. If you would like to talk with us about diversity and inclusion, or any of your sports government policies, please contact our team.
1. FINA June 2022, Policy on Eligibility for the Men’s and Women’s Competition Categories
2. Ibid.
3. The FINA policy defined this term as “individuals whose gender identity and/or expression differs from what is typically associated with their sex.”
