Sport Inclusion Guidelines

The rules for Transgender sporting participation are set out in the Guidelines for the inclusion of transgender and gender diverse people in sport.

You can find contextual information here and download the PDF of the guideline here.

The guideline was issued in 2019 by the Australian Human Rights Commission (AHRC). The guideline’s front page shows the badges of three organisations:

• Australian Human Rights Commission (AHRC)
• SportAus
• The Coalition of Major Professional and Participation Sports

Who Wrote The Guideline on Trans Inclusion?

The guidelines were written by three peak organisations (representing a total of 12 constituents). All contributors are members of ACON’s Pride in Sport scheme.

This is about relationships. It is important to understand how how several governing bodies come together.

Australian Human Rights Commission (AHRC)

The Commission is Australia’s National Human Rights Institution. They investigate and conciliate in complaints of discrimination, undertake research, and provide advice on human rights.

In their introduction to the guide, the AHRC repeats ACON’s slogan that one must be able to “bring your whole self” to sport (page 5).

SportAus

SportAus and Australian Institute of Sport (AIS) make up the main parts of the Australian Sports Commission (ASC). The ASC is accountable to the Minister for Sport. See also – SportAus ‘about’ page.

Coalition of Major Professional and Participation Sports (COMPPS)

COMPPS is a peak body representing the following sports:

Consultations

The AHRC notes that they conducted “targeted consultations to inform the development of these Guidelines”. They “heard from a broad range of sporting stakeholders, including transgender and gender diverse athletes.” (Guideline page 5)

Trans-identified male, Roxy Tickle, was “sworn to secrecy” about his involvement in the consultation process. Roxy is closely affiliated with Pride in Sport, having appeared in several of their promotional materials.

“Further Resources” Section

A “further information” section at the end of the guideline points readers to a number of other organisations.

These organisations are affiliated with ACON, are ACON, competitors who have the same mission as ACON.

What Does The Guideline Say?

The guideline focuses only on instances discrimination against transgender persons. The guide does not deal with how to balance fairness, competition and safety with others. In many areas, the guideline uses confusing language that would deter local clubs from exercising the rights to provide single-sex competitions.

Confusing language

The language used often appears deliberately confusing.

For example this paragraph deals with temporary exemptions and permanent exemptions together, despite these following different processes. It does not advise how to obtain these exemptions. It suggests that sex-segregated sport exemptions are outside the “core” provisions of the Act.

A sporting organisation must apply to the Commission to obtain a temporary exemption. A sporting organisation does not need to apply to the Commission to rely on a permanent exemption. If a sporting organisation wishes to rely on a permanent exemption it will need to make its own assessment that the exemption applies. Relying on an exemption is not mandatory. Sporting organisations may choose to comply with the core anti-discrimination provisions of the Act even when it is possible to rely on an exemption.

(Guideline p22)

The law is misrepresented

When discussing exemptions, the guideline uses narrow language to reduce the scope of

The Sex Discrimination Act s42 allows sports to discriminate between the sexes (called an exemption) when “strength, stamina or physique of competitors is relevant“.

The guideline uses the word “only” to narrow the scope of this exemption.

“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’.” (Guideline p24)

The guideline then goes on to say that these words have no legal meaning in Australia.

“The words ‘strength’, ‘stamina’ and ‘physique’, and the term ‘competitive sporting activity’, are not defined in the Act. Their meanings have not been conclusively settled by the Federal Court of Australia.” (Guideline p24)

Framing competition as exclusion

The guideline provides a single-page guide on how to rely on the ‘competitive sporting activity’ exemption to offer single-sex sports. (Guideline p36)

The guideline’s first instruction is to consider how important “inclusion” is in your sport. It stresses the limits of the competitive sporting activity provision (it does not apply to children under 12).

Narrowing language is used to imply that the provision cannot be applied to all sports. The guideline suggests that an onerous national and community consultation process is required to offer single-sex provisions.

The guideline frames single-sex sporting provision as “excluding an individual” rather than preserving fair competition. Note these examples (from a single page):

• “where an individual’s strength directly affects their ability”
• “If a sporting organisation seeks to specifically exclude an individual”
• “so that the individual is not unnecessarily disadvantaged”
• “providing the individual with an opportunity to respond”
• “providing the individual with written reasons”
• “providing the individual with an opportunity to seek a review”

This frames providing fair competition as a club seeking to unfairly exclude and individual.

No balance of rights

The guideline suggests introducing codes of conduct to create a zero-tolerance of transgender discrimination, exclusion and harassment.

The guideline gives examples of exclusion and harassment including:

• Being told they are in the wrong bathroom
• having team members refuse to play with them
• being intentionally addressed by the wrong pronouns

These examples are unqualified, meaning it is to be assumed that these behaviours are always harassment.

This means that a woman who refuses to play alongside a trans-identified male has harassed him, even if it is for her own safety or for fairness. The sport could be lawn bowls, rugby or boxing. The presumption is the transgender athlete has the right to compete, and the other athletes do not have the right to withdraw.

Case studies do not consider women’s comfort

In this example, the problem is framed as the non-binary person feeling uncomfortable in the men’s bathroom because it is in disrepair, and in the women’s bathroom because they were stared at. We do not know why.

The solution is to re-label the bathrooms. There is no mention of fixing the men’s facilities, so it is unlikely that Kim will start to feel comfortable in that space. There is no discussion addressing of the women’s discomfort with Kim in their bathroom.

Conclusion

All organisations involved in drafting the Guidelines for the inclusion of transgender and gender diverse people in sport are members of ACON’s Pride in Sport.

The guidelines reflect ACON’s focus on transgender inclusion at all costs.

The guidelines discourage clubs from exercising their right to provide single-sex sports for fairness, safety and enjoyment.

The guidelines make no attempt to balance the needs of others.

The guidelines consistently show the solution to problems around transgender inclusion being to side with the transgender person and grant their wishes.

See Also

• Australian Human Rights Commission (AHRC)
• Roxy Tickle
  • Sports consultation, archive link
  • Screenshot of panellist Roxy Tickle from Critical Thinking in a Passive World blog
  • Personal blog
  • Fan page on Facebook
• Pride in Sport members
• Minus18
• Sex Discrimination Act s42
• SportAus ‘about’ page
• Victorian Equal Opportunity and Human Rights Commission – Guideline: Trans and gender diverse inclusion in sport