For most sporting organisations, the topic of gender diversity and transgender inclusion in sports is an overdue one. With the treatment of gender diverse individuals and their inclusion in sport in the spotlight for a number of years now, it is time for sporting clubs, organisations and associations of all sizes to be proactive in making this a priority.
In this article, we take a look at the benefits of gender diversity and transgender inclusion in sports, the legal and financial consequences for sporting clubs, leagues, organisations and associations if they are found to discriminate, what leading sporting organisations and associations in Australia are doing in this area as well as what is happening globally.
We also address the concerns raised about transgender athletes in competitive sport on both an international and community level. We will briefly touch on, but not explore in detail, the related but separate issue of the participation of intersex athletes.
This is a big topic, and it is one that boards and committee members must be aware of and take action to seek tailored advice about, specific to the size of your organisation, which state or territory you are in, and the nuances of your sport.
Before exploring this topic, it is vital we cover off on some of the language used throughout this article, for those who are unfamiliar with the terms used.
Key Terms Relating To Gender Diversity & Transgender Inclusion
Affirmed Gender – an individual’s gender as opposed to the sex they were assigned at birth.
Cisgender – people whose gender corresponds to the sex they were assigned at birth.
Cis female – a person who identifies as female which is the same as the sex they were assigned at birth.
Cis male – a person who identifies as male which is the same as the sex they were assigned at birth.
Gender diverse – a term given when identity, role, interests, hobbies and expression differ from cultural norms prescribed for people of a particular sex.
Intersex – people whose genetic, hormonal or physical composition differs from medical and conventional understanding of male and female bodies.
LGBTIQA+ – a term given to a range of gender-diverse identities and experiences.
Trans/Transgender – an umbrella term for people whose gender identity does not correspond to the sex they were assigned at birth.
Trans female / Trans woman – an adult who was assigned male at birth but whose gender identity is female.
Trans male / Trans man – an adult who was assigned female at birth but whose gender identity is male.
What Do Federal and State/Territory Laws Say?
Transgender and gender diverse inclusion in sports is connected to both federal and state/territory laws. While discrimination is at the core of this topic, it is important to know that within the relevant legislations, there may be exemptions and exceptions that allow for discrimination in some situations.
The federal Sex Discrimination Act 1984 prohibits unlawful discrimination on the basis of sex and gender identity in certain areas of public life. This includes most larger sports clubs (although this specific legislation only classes a club by if it sells or supplies liquor for consumption on its premises, so it will not affect all sports clubs). It is also unlawful to discriminate in the provision of goods, services and facilities (which will cover most sports clubs) and to request information from a person for the purpose of discriminating against them.
There are some exceptions though. The Sex Discrimination Act may not prohibit discrimination in the case of volunteers and not-for-profit sports associations, such as a small local soccer club. Read this whole article though as this is only one of the relevant pieces of legislation, and even where there is no legal obligation, it will still be important to avoid discrimination for a range of reasons.
Currently, there are many ways in which a sporting club, organisation or associate might discriminate against a person on the basis of their gender:
- Uniforms (e.g. requiring people to wear a uniform that is inconsistent with their affirmed gender)
- Facilities (e.g. change rooms/toilets)
- Membership (e.g. by restricting membership based on gender or excluding trans athletes)
- Requiring people to be categorised into a gender/provide evidence of their gender at birth
- Preventing people from participating in their affirmed gender (e.g. because their sex at birth might mean that they have physical advantages, or for blatantly discriminatory reasons)
Where the members or athletes are over 12 years of age, clubs are permitted to discriminate on the basis of sex, gender identity or intersex status by excluding athletes from participation in competitive sporting activities in which the strength, stamina or physique of competitors is relevant.
This can potentially create difficulties for a club, organisation or association that wants to ensure fair competition for all athletes, and one which is also free of discrimination.
Potentially adding to the complication is the recently introduced Sex Discrimination and Other Legislation Amendment (Save Women’s Sport) Bill 2022, which was introduced in February 2022 by Claire Chandler, a Senator for Tasmania. The Bill seeks to amend the Australian Sports Commission Act 1989 (Cth) and the Sex Discrimination 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. It would broaden the current exemption referring to strength, stamina and physique in competitive sporting activities to allow discrimination against transgender women in a much broader set of circumstances. This would constitute a significant change if the Bill were to pass both houses without amendment.
If the Sex Discrimination Act does not apply to your sporting organisation, State or Territory laws may apply.
State or Territory Laws
Where there may be exceptions or exemptions in the Sex Discrimination Act, you must also take into account the relevant legislation such as the Anti-Discrimination Act or Equal Opportunity Act, in your state or territory.
For instance, in Victoria, the Equal Opportunity Act applies very broadly in the context of sport. It is not restricted to clubs or associations that sell liquor and it applies to voluntary organisations. It does contain some exceptions for competitive sporting activities, for example, where strength, stamina and physique are relevant. However, this leaves a range of sporting activities where that will not provide an exception.
The question that every club needs to be asking and deciding upon is, where will your club, organisation, competition or association draw the line in regard to ‘where strength, stamina and physique’ are relevant?
Transgender Athletes In Competitive Sport
As we know, there are significant physiological differences between men and women, which provide the average man with a significant advantage over the average woman. These differences can also mean that in contact sports, women may be at a greater risk of injury when competing against men. For these reasons, it has been widely recognised internationally, including recognition from the Court of Arbitration for Sport, that cisgender women should be able to compete separately to cisgender men. This is important in encouraging women to engage in sport, and for them being able to participate or compete safely.
This can create a problem when you have transgender women wanting to compete in a competitive or contact sport with cisgender women. Whose rights should win out? According to Senator Chandler, seemingly it should always be the rights of cisgender women. However, under current laws and the policies of most major sporting organisations, the answer is much more nuanced than that.
In some instances sports have imposed requirements on trans female athletes to engage in testosterone suppression. This may already be a part of their transition. Hormone therapy/testosterone suppression may not eliminate all advantages that a trans female athlete may experience, and may not having a lasting impact, but it may take a significant toll on the trans female athlete, especially where they have to continue to undergo testing to demonstrate that they are within limits, and the limits imposed by the sporting organisation may be more restrictive than would be normally if they were not an athlete and were simply undergoing hormone therapy.
The other consideration is that even within a female or male category, there will be significant natural physiological differences between one athlete compared to another (e.g. height, coordination). Given that, a trans athlete could reasonably argue that these differences are no more significant than when comparing transgender athletes. When that is taken into account, it begs the question: why do we discriminate on the basis of gender and not on the basis of height or weight for example?
Inclusion Policies In Play In Australia
In August 2020, Little Athletics Australia published its Inclusion Policy for Gender Diversity. It details its position that members under 12 can take part and compete in age groups, based on the gender identity they registered as, for the duration of the year registered. Over 12 years of age, athletes may take part and compete in the gender they choose, as long as they register as that gender in that year and that their gender identity is consistent with their gender identity in other aspects of everyday life.
The AFL published their Gender Diversity Policy in October 2020. The policy states that:
“The AFL is committed to an inclusive culture and encouraging the participation of gender diverse people at all ages, levels and all roles within the game, including players, supporters, umpires, coaches and other team and league officials.”
The policy document also includes myth busting about safety risks of transgender players on the AFL field, making their stance on gender diversity and inclusion very clear. This policy applies in relation to Community level sport – at the level of the AFLW and first grade State league competitions (e.g. the VFLW), there are restrictions on trans women’s inclusion, and requirements to meet testosterone thresholds below 5 nmol/L.
Swimming Australia is also currently developing its National Trans and Gender Diversity Policy.
Inclusion & Gender Diversity Internationally
World Rugby has divided its guidelines into three separate summaries. One for transgender women, one for transgender men and another for non-binary players. Its guidelines only allow trans females to play Women’s Rugby where there is no contact.
The International Olympic Committee historically treated testosterone levels as the primary way in which it determined whether an athlete could compete against men or against women. Under the previous policy, if a trans female’s testosterone levels were below a certain level for 12 months before the competition, she could compete in the category she identifies as. Interestingly though, it seems that testosterone levels can be high for some cis female athletes with hyperandrogenism or intersex athletes (e.g. Dutee Chand and Caster Semenya) that have considered themselves to be female for most of their lives, meaning they have been restricted from competing in some female competitions despite being assigned female at birth. The IOC’s new Guidelines, introduced in November 2022, take a more inclusion-focused approach and reverse the previous IOC approach that focused on testosterone levels. The emphasis is now on the health and well-being of athletes, and there is no longer a requirement to lower testosterone levels. Any restrictions on the eligibility or inclusion of transgender athletes now have to be applied by the International Federation for each specific sport, and justified by credible research demonstrating that there is a disproportionate advantage or safety risk present.
What will the policy be in your sporting community?
What Does This Mean For Competitions In Your Sporting Community?
It can be difficult to apply the competitive sporting activity exemptions and exceptions.
For example, would a ‘Fun Run’ count as a competitive sporting activity if prizes are awarded to the first three “Male” and “Female” competitors, but the overall purpose of the activity is as a ‘Fun Run’?
Do you run one competition for everyone?
Do you need to include a third category to allow for this?
If you do run a third category, does this cause issues for, for example, a trans woman who feels discriminated against because she is required to compete in the ‘other’ category rather than in her affirmed gender. Versus, if trans women are allowed to compete in the same category as cisgender women, will this discourage cisgender women from participating if all the top places and prizes go to transgender women because of natural physical or physiological advantages? While this may not be an issue now, with the increasing awareness and inclusion of transgender individuals in society, the likelihood (and the preferable outcome) is that there will be more transgender athletes competing in sport. While the increased participation of trangender athletes in sport is an important outcome that sporting clubs should be striving for, it is important that appropriate policies are put in place to allow this to happen, while also recognising the importance of encouraging cisgender women’s participation.
For your board, if the conversation hasn’t already started, it must become a priority as developing it may take some time. Decisions will need to be made for the athletes and members as well as the protection of your organisation.
Purpose Of A Gender Diversity Policy
The benefits and purpose of a gender diversity policy is to:
- Help a transgender or gender diverse person identify a sporting organisation that will welcome them
- Encourage a transgender or gender diverse player to remain engaged in sport throughout their transition or affirmation
- Provide guidance to members, participants, staff and volunteers at a sporting organisation on how to include transgender and gender diverse participants and how to respond appropriately to any issues that may arise, and therefore prevent legal action.
You may elect to have a new, separate policy or have other policies reviewed and updated such as any current Inclusion Policy or Member Protection Policy, as well as the Constitution and any Codes of Conduct.
Consequences of Not Having A Gender Diversity Policy in Action
If a trans female person is not permitted to play, is your club up for discrimination?
What happens if someone is injured as a result of a trans female’s participation?
There are health or injury risks to consider, in the event that someone is hurt as a result of an injury sustained while playing against or alongside a transgender player. Potentially, there is the risk of legal action resulting in personal injury claims.
Conversely, there is also risk of breaching discrimination laws or facing claims of discrimination.
The most significant risk in the short-term for every sport club, league, organisation, competition or association is if you do not have any gender diversity policy in place, or, inclusions in existing policies relating to gender diversity and transgender inclusion.
However, this is not just about the risk of facing a discrimination case. This is about ensuring that our sport communities are inclusive. That sport is accessible to all. The inclusion of LGBTIQA+ people in sport is extremely important. Young LGBTIQA+ individuals are particularly vulnerable to mental health and wellbeing concerns. Transgender people are at a high risk of suicide. Inclusion in sport can be very important in improving their mental health, while discrimination is likely to worsen any mental health issues. Equally, inclusive environments have a direct benefit on the health and wellbeing of all people within the sporting community.
Why Trans and Gender Diverse Inclusion Is An Overdue Conversation
Sport Australia, as part of its Inclusive Sport Framework, have made its position clear by providing information specific to trans and gender diverse inclusion. In its guidelines for the inclusion of transgender and gender diverse people in sport, Sport Australia provides a checklist ‘designed to help sporting organisations, their staff and volunteers to identify practical steps that they can take to promote the inclusion of transgender and gender diverse people in sport.’
This is an Australian Government initiative. The checklist details practical steps to promote the inclusion of gender diverse and transgender people in sport. It addresses considerations for:
- A publicly available inclusion policy
- Zero-tolerance policy for harassment
- Privacy and confidentiality of personal information
- Inclusively designed facilities
- Education and training of staff, players, volunteers and members
Importantly, the checklist asks the following question:
“If you plan to rely on the ‘competitive sporting activity’ exemption, does your sporting organisation have an established, clear, written and publicly available policy that explains how the exemption will be assessed?”
Gender Diversity And Transgender Inclusion In Sports
We know that for boards and sporting organisations and associations there is much to consider. However, it is clear that this is no longer a consideration that can be set aside in the ‘too hard’ basket, or set aside for later. The time to get the ball rolling is now.
Given the nature of this topic and the resistance that may exist in some communities, the best place to start is by having your board meet with specialists who have a solid understanding of anti-discrimination laws, employment law and also work closely with sporting organisations of all sizes, every day.
We also know that your board may benefit from assistance with educating your community about the necessity to develop this policy and eventually, the roll-out of the policy itself with coaches, management and the community at large.In helping boards develop their policy for gender diversity and transgender inclusion in sports, we identify what the specific legal issues are, take into account the nuances of your sport and the competing priorities that exist, to help you get the balance right for your organisation.
Article by Alexandria Anthony
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At SportsLawyer we are specialists in anti-discrimination laws, gender diversity reviews and policy development. Our team specialises in working with sporting organisations of all sizes, across all capital cities and regions of Australia. We focus on managing and minimising your risk, so you can focus on your sport.
Importantly, we also assist with the delivery and education of these policies to ensure the policies are not just in place, but can be clearly followed. Get in touch with our team to discuss how we can work together for the success of your sporting club or organisation here.
Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought. Please contact Paul Horvath on firstname.lastname@example.org or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.