Australia is often described as a sporting nation. Australians' passion for sport is a key part of our national identity and access to sport is a United Nations recognised human right. However, in recent years, there has been a growing debate around inclusion of trans and gender diverse people in girls' and women's sport.
On 19 February 2022, Claire Chandler, Senator for Tasmania, introduced the Sex Discrimination and Other Legislation Amendment (Save Women’s Sport) Bill 2022 (SWS Bill). The SWS Bill seeks to amend the Australian Sports Commission Act 1989 (Cth) and the Sex Discrimination Act 1984 (Cth) (SD Act) in order to:
- require the Australian Sports Commission to promote the participation of women in sport;
- insert definitions of "man" and "woman" into the SD Act; and
- amend the SD Act to specifically provide that it is not unlawful to exclude persons of one sex from participation in any sporting activity intended for persons of a different sex.
In addition, the SWS proposes to include a note in the SD Act that sex, for the purposes of the SD Act, would (without limiting its ordinary meaning) mean "the chromosomal, gonadal and anatomical characteristics associated with biological sex".
Senator Chandler says single-sex sport for women and girls is "a fundamental good for our society" and has expressed the view that current discrimination laws "threaten sports clubs and associations with legal action for offering single-sex sporting events and competition exclusively for females".
Women in sport: A protected class?
In recent years, female athletes and their competitions have established a position of prominence beyond any previously enjoyed. Women's sport is attracting fans, TV airtime, sponsorship and recognition like never before.
However, inherent in this is the concept of women's sport as a separate entity. Since the introduction of regulated female competition in sport, there has been a focus on about "protecting" female athletes and their competitions. Children manifest similar athletic ability prior to puberty, which is why sports at junior levels tend to be mixed. However post puberty, due to men's much higher levels of circulating testosterone and the consequent impact that has on sporting performance, male athletes outperform female athletes at an elite level in some sports. These differences are said to be insurmountable.
This outperformance and perception that male athletes have an advantage has translated into a sense that males must be kept out of female competition. Indeed, the Court of Arbitration for Sport has said that the split between the male and female classifications in sport is expressly designed to protect individuals from having to compete against others who, by virtue of their body's development post-puberty, possess certain physical traits that means fair competition between the two groups is not possible.
Concerns are held by some groups that transgender female competitors will have an unfair advantage if they choose to compete against cisgender female competitors in sporting events.[1] This is due to the hormonal influence of puberty, the testosterone influence on muscle strength during puberty and the uncertainty that surrounds the effects of female hormone treatment on transgendered persons. This has driven the push to "protect" the female sporting category from unfair competition.
"Protection" under the current framework
Discrimination legislation in Australia already permits the exclusion of a particular sex from participating in competitive sport in which a disparity in "strength, stamina or physique" is a factor. Commonwealth, Australian Capital Territory, South Australian and Western Australian legislation all currently use a formula to ascertain exclusion based upon the "relevance" of the strength, stamina and physique of competitors in a particular sporting activity.
In Victoria, Queensland and the Northern Territory, a "reasonableness" test is applied. For example, in Victoria, exclusion is permitted where it is intended to facilitate participation in a sporting activity by people of a particular sex, and is reasonable having regard to the nature and purpose of the activity, the consequences of the exclusion and whether there are other opportunities for people of the excluded or restricted sex to participate in the activity.
New South Wales and Tasmanian Legislation contain broader exceptions which allow competitors of one sex or transgender people to be excluded in any circumstance. Generally the exclusions apply only to persons over the age of 12.
But what does the SWS Bill add?
The SWS Bill escalates the right to exclude persons on the basis of sex. Rather than being limited to where the "strength, stamina or physique" of the participant is relevant, the SWS Bill proposes to repeal the relevant section and replace it with the following:
"Nothing… renders it unlawful to exclude persons of one sex from participation in any sporting activity intended for persons of a different sex."
Together with the insertion of a definitions of "man" and "woman", and the note specifying "sex" as meaning biological sex, this creates a blanket right for transgender persons to be excluded from sporting activities.
This runs contrary to the approach being taken by sporting organisations in Australia, with the AFL, Cricket Australia and Rugby Australia being some of the organisations to release policies said to be designed to promote the inclusion of transgender participants. Further, there are no specific examples being raised in support of the SWS Bill, where the inclusion of transgender participants has caused unfair competition. No major sporting code or body has called for a change to the law and the SWS Bill appears to be a solution to a problem that no-one is raising.
So what does this mean?
If the SWS Bill passes the Commonwealth Parliament, this would mean that the Commonwealth, through the amendments to the SD Act, would fall out of alignment with the States and Territories on transgender inclusion in sport. This inconsistency, if tested, may result in the existing protections (being the limitation of potential exclusion to circumstances where "strength, stamina or physique" is relevant) under the various State and Territory legislation being eroded and constitute a significant change to the rules applying to Australian sports participation, due to the blanket exemption, with no safety net or criteria to be applied.
[1] For the purpose of this article, the term "female transgender competitor" means a person who is assigned male sex at birth, but transitions to or identifies their gender as female. Cisgender people have a gender identity that corresponds with their birth sex. For example a person born biologically female who also identifies her gender as female.Back to article