Exclusion and Discrimination: Transgender, Gender-Diverse and Intersex Athletes in Australian Sport

Abstract

The eligibility of transgender and intersex athletes seeking to participate in women’s sporting competitions has long been contentious. Most debate has centred on individual sports, and in particular athletics. In April this year, the International Association of Athletics Federations (IAAF), the world governing body for athletics, issued new Eligibility Regulations for Female Classification (Athlete with Differences of Sexual Development). These new regulations will come into effect from 1 November 2018 and require athletes seeking to compete in female international track races of a distance between 400m and one mile, including hurdles races, to have testosterone levels below 5.0 nanomoles per litre (nmol/L). The regulations have been heavily criticised. Many have argued that these regulations are targeted specifically at South Africa’s intersex track athlete Caster Semenya, while sports lawyer Steve Cornelius quit his position on the IAAF’s disciplinary tribunal, claiming that the new regulations were based ‘on the same kind of ideology that has led to some of the worst injustices and atrocities in the history of the planet’.

Only very recently have these concerns surfaced in team sports. In Australia this has largely arisen in Australian Rules football, and in particular the professional national competition, the Australian Football League (AFL). In February 2017, the first ever season of AFL Women’s (AFLW) begun with eight teams competing nationally. No transgender or intersex eligibility policy was issued for the new AFLW at the time. While eligibility was not a major issue at the inaugural 2016 AFLW Draft, the 2017 AFLW Draft saw the issue rear its head with the barring of transgender footballer Hannah Mouncey just 24 hours before the Draft. The AFL has since, in August 2018, announced a new Gender Diversity Policy, however the policy has been widely criticised on various policy grounds. The stringent requirements set out by this policy have led Mouncey to withdraw her plans to nominate for the 2018 AFLW Draft.

The AFL’s policy is largely based upon existing exemptions to Australian discrimination law, whereby the otherwise discriminatory exclusion of transgender or gender-diverse athletes is rendered lawful if the ‘strength, stamina or physique’ of athletes in the sporting competition is ‘relevant’. These exemptions remain underdeveloped and scarcely considered in literature or case law, yet seem to provide wide avenues through which sporting organisations can lawfully restrict certain athletes from participating in sport. The situation is even direr for athletes who are intersex, as only four of the nine Australian discrimination law jurisdictions make it unlawful to discriminate on the ground of intersex status.

This paper comprises of two key parts. First, it considers the Australian anti-discrimination law framework that applies to the exclusion of transgender, gender-diverse and intersex athletes from team sporting environments, to determine the scope of the existing ‘strength, stamina or physique’ exemptions. All nine discrimination law jurisdictions in Australia are considered, to determine key similarities and differences in coverage. Secondly, this paper undertakes a broader normative analysis to assess the merits of these exemptions, and determine whether there are rationales for their continued existence. Comparisons are drawn to international examples, though focus is placed on the AFL’s Gender Diversity Policy and its decision in 2017 to exclude Mouncey from the AFLW draft. The Australian Human Rights Commission’s ongoing development of a sex and gender diverse participation policy for Australian sport, provides an appropriate platform and frame within which to consider potential law reform moving forward.

Keywords: sport; exclusion; transgender; intersex; IAAF; AFLW

JEL Classification: K39