CAS Dismisses Lia Thomas Challenge To World Aquatics’ Sex-Based Fair Play Rules
The Court of Arbitration for Sport has kicked out a challenge by transgender swimmer Lia Thomas to World Aquatics rules barring any who experienced male puberty from competition in female events.
The tribunal’s decision to dismiss the challenge comes 11 days before the June 23 deadline for entries to the Paris Olympic Games and is expected to deter any similar challenges.
It notes that “the athlete lacks standing to challenge” International rules that only apply to those who qualify to represent nations and the national federations that make up the membership of World Aquatics.
Thomas has not been a registered member of USA Swimming since the end of 2022, the year in which the freestyle swimmer became the 2022 American women’s college 500 yards champion in March but by June had been ruled ineligible for international women’s competition by new policies reinforcing sex-based categories.
The FINA/World Aquatics process of engaging expert witnesses to recommend an inclusion policy that placed safe and fair play first started before the world had heard of Thomas, who had swum as a male at Penn State University before tradition.
The federation sought advice from scientists and human rights lawyers, among others, who concluded that there was an abundance of evidence to show that males have a set of highly significant physical advantages over females in a sport such as swimming. Many of those advantages are irreversible regardless of testosterone suppression in transwomen, they noted.
Thomas and legal team argued, the 24-page CAS Arbitral Award indicates, that since the swimmer must gain World Aquatics approval for the female category before she would be able to participate in a qualification event in the U.S., then it must be possible to challenge that global policy.
A panel of three arbitrators, including Richard McLaren, the Canadian lawyer who wrote the damning report on the Russian doping crisis in 2016, disagreed. Thomas would only be able to challenge the sex-based, fair-play rules once subject to them as an international athlete.
Thomas is also ordered to bear the arbitration costs of the present proceedings.
Membership of USA Swimming (or any other national federation) is an essential criteria in any such selection processes that fall under International and domestic rules in swimming that render Thomas ineligible to race in the women’s category.
The CAS makes clear that “it is not for USA Swimming to determine where and under what conditions the Policy [World Aquatics] and the Operation Requirement [process] are triggered. For the purposes of World Aquatics rules and policies, the process is only triggered when a swimmer registers for a World Aquatics competition, “unless and until then, the Athlete is not sufficiently affected by the Challenged Provisions”.
The World Aquatics rule that states that the global regulator “may investigate, at any time … whether an athlete who has not filed a declaration under these Operational Requirements is a transgender athlete or a 46 XY DSD athlete who needs to establish their eligibility to compete” only applies to athletes who are registered for a World Aquatics competition. Thomas never has been.
Meanwhile, the USA will stage its Olympic trials over nine days from Saturday. Thomas would have first had to have register in the category the swimmer is eligible for and then gain international selection for the USA before falling under the jurisdiction of international rules, a prerequisite to making any challenge.
The 2022 inclusion rules at World Aquatics make provision for two sex-based categories, women and men/open, the latter for any athlete who has experienced male puberty beyond Tanner Stage 2, or 12 years of age where puberty has been suppressed, regardless of their gender identity which is insignificant to athletic performance in a wide range of sports. Sex is highly significant.
World Aquatics & Davies Welcome Thomas Dismissal
World Aquatics welcomed the CAS decision, which, it said was “a major step forward in our efforts to protect women’s sport.”
The regulator said: “World Aquatics is dedicated to fostering an environment that promotes fairness, respect, and equal opportunities for athletes of all genders and we reaffirm this pledge. Our policies and practices are continuously evaluated to ensure they align with these core values, which led to the introduction of our open category.
“We remain committed to working collaboratively with all stakeholders to uphold the principles of inclusivity in aquatic sports and remain confident that our gender inclusion policy represents a fair approach.”
Britain’s Sharron Davies, a leading campaigner for fair play for women in sport, thanked World Aquatics for arguing the case and fighting for fair play. She said of the CAS decision: “As expected because Thomas can only bring a case if the ruling affects them as an international swimmer, they never were. And in fact haven’t trained since the end of the NCAA season [of 2022]. Good news for common sense and female swimmers. Thank you, World Aquatics for valuing fairness, based on proven science.”
The issues explained: Unfair Play, out in paperback with an update chapter next month
