AFL case by case approach to trans athletes is discriminatory

The Australian Football League’s(the AFL)decision that Hannah Mouncey, a woman who was assigned male at birth, was ineligible to play in the elite women’s division of its competition is a significant blow to trans athletes in Australia. I’ve found it particularly upsetting and troubling because they appear to have endorsed a case by case analysis for the acceptance of trans athletes in women’s sport. A case by case review is not to be applauded or accepted, it must be condemned; the repercussions of such an approach being adopted by other sporting codes are significant.

The degree of insensitivity that reigns at the AFL means that the AFL General Manager, Inclusion and Social Policy, Tanya Hosch, sees no contradiction with the statement that the AFL has “strong commitments to equality and inclusion” but “every case will be decided on its own merits along with the individual circumstances of each future nominee.” The clear implication being that if the athlete was smaller and lighter there would have been no issue. Hannah was simply “too big and powerful”. The AFL has discriminated against a person, not a class of people.

A case by case examination demeans and dehumanise all trans athletes! Being refused registration is a repudiation of our feminity, not many have Hannah’s courage to expose ourselves to that judgement. Trans athletes will need to perform a self-assessment as to how female they are (as if we don’t do that enough) and then go through the sporting association’s assessment. An athlete’s personal private information becomes public property to be gossiped about; it’s a disgrace that we all know the details of Hannah Mouncey’s weight, height, testosterone levels and genitals.

Within Victoria the rights of transgender athletes are protected by the Equal Opportunity Act 2010 “that prevents a person from discriminating against another person” [note the singular, it’s important] on the basis of their gender identity inter alia. The exemption, that the AFL have allegedly relied upon, is:

“A person may exclude people of one sex or with a gender identity from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant.” [Note it is allowable to exclude people, not a person]

The exemption was considered in Taylor v Moorabin Saints Junior Football League and Football Victoria [ 2004 VCAT 158 decision]. Importantly, the Tribunal stated that it is the “class of boys and the class of girls which is relevant: not the characteristics of the individual”.

Sporting associations may not drill down to the characteristics of the person seeking to compete.

Maybe the AFL made the determination that the class of testosterone suppressed trans women have an advantage over the class of cis women due to enhanced strength, stamina and physique — this doesn’t seem to be the case. Moreover, the International Olympic Committee (the IOC) seems to have accepted that this is not the case for sports that it covers, and the recent study conducted by the IAAF in the Dutee Chand case suggests that testosterone levels when competing is the best indicator of performance (but testosterone suppressed trans athletes have lower testosterone than CIS females).

Whilst seeking to “recognise that participating in sport has physical, psychological and social benefits”, the AFL has sent the message to trans athletes that it supports a process that is intrusive, discretionary and subjective; basically, it considers the ability to participate to be an indulgence and not a right regardless of the legal framework. The AFL is not an amateur organisation it has enormous resources with which to comply with the laws it operates under ~ it has had several months to formulate objective criteria for a class that should be able to be released publicly.

Hockey is my sport and I am fortunate that Hockey Victoria has indicated that it will adopt clear guidelines that do not involve case by case review (although we are waiting on the final rules). It has been hard enough to make the decision to transition (and I’m not fully out yet) but to then have to subject myself to a discretionary process with no guidelines where my personal details are to be disclosed (and most likely splashed across the sporting community) before a decision is made would make me walk away.

In making this decision, the AFL has fumbled the ball.

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