What does the law say in Australia in regards to trans & gender diverse athletes?
This call from Chandler is in stark contrast to the recently released International Olympic Committee (IOC) new framework on fairness, inclusion, & non-discrimination on the basis of gender identity & sex variations.
The IOC has made a firm statement within it’s policy a polar opposite to Chandler. The IOC clearly state that no athlete should be excluded from competition on the grounds of a perceived unfair advantage due to their gender. Such decisions, the IOC adds, should be based on “robust and peer-reviewed science … which demonstrates a consistent, unfair and disproportionate competitive advantage and/or an unpreventable risk to the safety of the athletes.
Senator Chandler claimed sex discrimination laws were being ‘weaponised’ to harass community sport organisations with absolutely no examples of this ever happening in Australia.
Australia has a long documented history of transgender women being included in sports. A recent research project undertaken by Professor Noah Riseman clearly shows the irrational fears of trans athletes that Senator Hanson advocates has never played out on the sports fields.
Where Senator Chandler is most confused is the federal laws including the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 and the
Federal Guidelines for the inclusion of transgender and gender diverse people in sport guidelines are not a participation policy for any sport. The guidelines actually lays out how sports can legally discriminate against a trans women in female sports in Australia if a disparity in size, strength, speed, endurance or physique exists.
Under both state & federal laws including the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 a trans athlete ’CAN’ be legally discriminated against in sport in Australia if a disparity in strength, speed, endurance or physique is present.
The sex discrimination Act contains a permanent exemption in relation to ‘competitive sporting activity’. This is commonly referred to as the ‘single-sex competition’ exemption, although it does not operate to make all single-sex or single-gender sporting competitions lawful.
A sporting organisation may apply to the Commission for a temporary exemption. Given the permanent exemptions that already exist in the Act, the Commission grants temporary exemptions sparingly.
The exemption allows for discrimination on the grounds of sex or gender identity only in ‘any competitive sporting activity in which the strength, stamina or physique of competitors is relevant’.
If a sporting organisation decides to rely on the ‘competitive sporting activity’ exemption to exclude a person from a particular competition, it will need to satisfy itself that ‘strength’, ‘stamina’ or ‘physique’ are relevant and how the organisation assesses this.
The federal guidelines provides factors to consider for sports who are. seeking to rely on the ‘competitive sporting activity’ exemption. Given the diversity of sports and the role of different skills and physical characteristics (strength, stamina,physique) in each sport, the assessment should be specific to the sport in question.
Additionally, the exemption is limited to competitive sporting activities and does not apply to:
coaching umpiring or refereeing administration prescribed sporting activities’sporting activities by children who are younger than 12 years of age.
The Commission has published guidelines about how it assesses applications for temporary exemptions under the Act.
Temporary exemptions can be granted: subject to certain terms and conditions, and for a period of up to five years.
If a temporary exemption is granted, it will not be possible for a successful complaint to be brought in relation to the circumstances covered by the exemption.
A example of the Federal Guidelines ”protecting” the women’s category can be seen when Rugby Australia recently sought and was granted a temporary exemption to legally discriminate against a trans woman rugby player in Grafton Nsw.
The Federal Guidelines are simply for National Sporting Organisations (NSOs) to promote the inclusion and participation of trans, gender diverse and intersex people in sport. I participated in the development of these guidelines as a key stakeholder. The purpose of the Guidelines is to provide practical guidance to NSOs on promoting inclusion in a manner that is consistent with theSex Discrimination Act 1984 (Cth).
The Guidelines address the practical barriers faced by trans, gender diverse and intersex people in relation to participation in sport.
Importantly, & policies such as. Cricket Australia’s Transgender and Gender Diverse framework are broadly consistent with recently federal guidelines produced by the Australian Human Rights Commission and Sport Australia and the ICC & IOC International policy.
Within the policy at the community level of cricket should the performance of a M2F player be disproportionate to their peers in physical prowess (not merely technique), umpires have the capacity to moderate, especially if there are safety issues (which can be found across different levels of cricket). More commonly, though, both umpires and clubs will be asked to monitor performance “mismatches” something they do as a matter of course in community cricket. Under both the Community and Elite level within the policy an exemption can be applied for & granted under the federal sex discrimination act if concerns with strength, endurance or physique are relevant.
Trans athletes in Australia have been eligible to compete in all levels of womens sports including international womens sports since 1976 & the last 9 Olympic Games. Australia has never had a single trans athlete even qualify to compete at a single Commonwealth let alone an Olympic Games.
Senator Chandler is being irrational spreading her transphobic fears in her Push for transgender girls and women to be BANNED from competing at ALL levels of sport in Australia. The IOC global leaders in sport have made abundantly clear Chandler is wrong.
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