Case dismissed: Why all the fuss over the Thomas dismissal?
The Court of Arbitration for Sport did not rule against Lia Thomas. It dismissed his case. There's a big difference.
The Court of Arbitration for Sport (CAS) recently dismissed an appeal by Lia Thomas to challenge rules set by World Aquatics (WA), the international sport governing body (IGB) for aquatic disciplines, regarding participation of transgender women in female swimming events. The dismissal was welcomed by many who saw it as a victory in the ongoing transgender dustup. However, the court didn't decide anything, neither side won or lost. CAS dismissed the case saying Thomas had no standing to challenge the WA rules.
Not having standing means that Thomas is not sufficiently affected by the rules to challenge them. The legal lingo is different, but the court is asking Thomas, "What's it to you? These rules don't apply to you, so why do you care?" The CAS dismissal is based on a technicality: Thomas is not a member of any WA affiliate so he is not subject to its rules. It's possible that a similar challenge could be heard in the future but plaintiffs would have to be members of their sport's NGB to gain standing.
Up to now the trans issue has been primarily a cultural one. Opponents of transgender women competing in female sport events claim fairness or protecting women's sport as the basis for their opposition. Proponents argue from the standpoint of authenticity and allowing those who identify as women to participate in sport as women. Neither side is amenable to the other's viewpoint and this has led to name calling, political debates, and legislation.
Activists are often unable to differentiate the issues involved with trans women in sport from other transgender flash points. Thus, almost any discussion of trans women in sport is a hodgepodge of complaints that soon devolves into a complete point-missing mess. In court however it will be a legal matter not a social one, so Thomas, or whichever plaintiff is able to bring a complaint before the CAS, will have to show how the male puberty rules are discriminatory.
The current rule barring trans women who have undergone male puberty are based on two primary assumptions:
Assumption #1: As a general proposition, males have several physical advantages over females. They are bigger, heavier, faster, stronger, and have more endurance. These advantages, which are built into the growth process, become evident during puberty. They're triggered by persistently higher levels of testosterone and they are permanent.
Assumption #2: Fair competition is one of the reasons male and female categories exist in sport. Athletes who have gone through male puberty have gained natural, permanent advantages over athletes who haven't. Thus, categorizing athletic competition by sex makes sense.
As Dr. Ross Tucker pointed out in The Real Science of Sport podcast, Thomas would have a choice of two possible arguments to make before the Court:
Fairness doesn't matter. This is a conceptual argument and one that would disrupt accepted norms. One of the foundational principles in the sport world is that rules exist to provide fair competition. This argument would have to convince the Court that fairness is not a value that should be upheld. In other words, the Court would have to nullify the foundation of sport competition. This is unlikely.
Allowing trans women to compete in female events is fair. This argument examines testosterone levels, puberty, and physical attributes. Originally, it was suggested that lowering T-levels in trans women to a certain number for a specific period of time would degrade their physical capabilities to those of a typical female, leveling the field, so to speak. But T-levels do not affect performance directly, and while performance can be degraded slightly with consistently lower T-levels, the male advantage gained through puberty persists throughout the male lifespan. This is the reasoning behind the rules banning trans women who have experienced any stage of male puberty.
In January 2022, a few months prior to Lia Thomas catapulting this issue onto the public stage, I wrote in more detail about testosterone levels in males and females.
So, for now the male puberty rules set by World Aquatics will continue to govern aquatic sport competition. Other IGBs have similar rules. A competent legal challenge might materialize in the future, but so far no challenge has been made and the recent CAS dismissal has merely kicked the can down the road a bit.