USA Swimming published a new Athlete Inclusion, Competitive Equity and Eligibility Policy (AICEEP) at the beginning of February, outlining the requirements for transgender athletes to compete in its sanctioned events effective immediately.
The two pieces of criteria in the elite athlete policy (there is also a separate non-elite policy) are different than what we had seen in previously established policies, most notably the standard implemented by the International Olympic Committee (IOC).
The IOC previously allowed trans women to compete in the women’s division as long as they had a testosterone level of 10 nmol/L or less. USA Swimming’s new policy requires evidence that the athlete has maintained a testosterone level less than 5 nmol/L for a minimum period of 36 months, and has a second piece of criteria that states there needs to be evidence proving the athlete’s prior physical development as a male does not give them a competitive advantage.
The new policy raised many questions, and USA Swimming has shared insight with SwimSwam on the steps taken in developing the policy, why these are the criteria that the organization landed on, and how it will be enforced.
Below we’ll break down what the sport’s national governing body said in regards to certain aspects of the policy.
In November 2021, the IOC released a new framework on transgender athlete eligibility that pushed the responsibility of establishing participation guidelines to each individual sport’s global (and national) governing body.
USA Swimming had put a policy in place in 2017, but it didn’t specifically address participation at the elite level. So once the IOC published its new guidelines in November, USA Swimming begin talking to FINA in working to establish a new set of criteria for the sport.
USA Swimming began establishing the policy in early December of 2021, with the process of developing it taking right around two months with it ultimately being published on Feb. 1.
The organization said the policy was discussed with its Athletes’ Advisory Council (AAC), its medical committees, along with USA Swimming’s Diversity, Equity and Inclusion (DEI) Council, which has one transgender member.
STREAMLINING WITH FINA
USA Swimming felt the need to publish its new policy imminently with its competition calendar running continuously throughout the year. FINA, on the other hand, has a limited number of events, with the first swimming event of 2022 not until the World Championships in June.
So while FINA has yet to establish a new policy or a timeline of when it will do so, USA Swimming’s policy does state that it will adapt to FINA’s requirements once a policy is published. This can be found in Section 7 of the policy (19.0) in USA Swimming’s Operating Policy Manual.
WHY 5 NMOL/L?
The most noteworthy difference in USA Swimming’s policy and the former one enforced by the IOC was the testosterone threshold a transgender female had to be below in order to compete in the women’s category.
USA Swimming’s criteria states that there needs to be evidence that the concentration of testosterone in the athlete’s serum has been less than 5 nanomoles per litre continuously for a period of at least 36 months. The IOC policy was only 10 nmol/L, and didn’t distinguish a timeline as the one USA Swimming has.
The organization told SwimSwam that the 5 nmol/L limit was taken from the IAAF (World Athletics), which had one of the few policies in place after the IOC’s was removed in November.
USA Swimming also said it looked to a literature review of all the research and peer-reviewed studies that have been done in the area dating back to 1991.
The evidence showed that strength gains in transgender athletes remained after three years of hormone replacement therapy, which is why they landed on the 36-month minimum for 5nmol/L.
HOW TO PROVE THERE ISN’T A COMPETITIVE ADVANTAGE
The other piece of criteria in the new policy states that there needs to be “evidence that the prior physical development of the athlete as a male, as mitigated by any medical intervention, does not the give the athlete a competitive advantage over the athlete’s cisgender competition.”
How exactly this can be proved is ultimately at the discretion of the three-person medical panel.
The key takeaway from what USA Swimming told SwimSwam was that the panel will be looking at biological markers, not swimming times, to determine whether an advantage has been successfully mitigated.
“We’re not looking at swimming success or results, more of the biological markers, an advantage is gained from how far through puberty someone could have gotten before a medical intervention transition occurs,” USA Swimming said.
“But that’s the reason for the independent medical panel. They’re not swimming people looking at swimming results or success, they’re looking at biological markers in transition.”
That’s a key point, because in conversations regarding Lia Thomas, the Penn swimmer who has served as a flash-point for this conversation, a lot of focus has been on her times and national rankings – comparing times and places pre-transition, when she was a sophomore at Penn, to post-transition, three years later as a 5th year senior. This lag in time comparisons between athletes pre-transition and post-transition can muddle their relevance as indicators of mitigation from transitioning.
A focus on times can bring up other issues as well: including doubt about swimmers’ efforts, and that a times comparison would require a transitioning athlete to compete in order to earn a relevant mark.
THE PANEL & APPEALS
USA Swimming said the plan is to have a pool of medical professionals available to participate on the three-member panel, with multiple individuals already in mind.
The AAC can appoint someone to serve as a resource on the panel, and both the AAC and National Team staff will be available to be consulted with by the panel in case they’re seeking swimming-specific knowledge. The AAC also has to approve the medical professionals on an annual basis.
The panel’s decision can be appealed by an appellate body that will be comprised of the Chair of the national board of review, an eligible athlete member, and an elite medical panelist, both appointed by the Chair. Only USA Swimming or an involved athlete is eligible to appeal a decision from the panel.
The full appeals process can be found in Section 8 of the policy (19.0) in USA Swimming’s Operating Policy Manual.
Another question that came out of USA Swimming’s release of the policy was if it was an and or an or policy. That is, do both pieces of criteria need to be met, or just one?
The answer is that both need to be met, but the panel has room for discretionary decisions.
Everyone needs to go through the panel, but if the panel concludes that the athlete’s advantage has been successfully mitigated, they have the ability to adjust things.
“(The panel) may decide that, for instance, the athlete has transitioned at a state where they wouldn’t require three years of hormone therapy,” USA Swimming said. “They may decide that an athlete who has transitioned later may need more time. So the panel has the latitude to make those distinctions and those determinations.
“The language is certainly that it’s a rebuttal presumption. So the presumption is that the athlete is not eligible if they haven’t met the 5 nmol/L prior to the application, but that would be a rebuttal presumption based on the information that they present to the panel.”
USA Swimming said it’s designed to be somewhat of a “living policy” that evolves as research improves over time. The group of medical professionals will have room to help shape the policy in the future as well.