Cover photo source: https://www.theguardian.com/sport/2021/feb/08/bright-and-beautiful-pride-round-shows-aflw-a-safe-space-for-all

The recent introduction of the ‘Save Women’s Sport’ Bill to Federal Parliament has reignited the conversation around the inclusion of gender diverse people in women’s sport and unfortunately, yet again, subjected transgender women to unparalleled scrutiny.  

Tasmanian Senator, Claire Chandler, in late February 2022 introduced a Bill which (if passed) would allow sporting groups to exclude transgender individuals (particularly, transgender women) from participating in single-sex sports. This Bill has been described as an attempt to “promote” women’s participation in sport.

Senator Chandler has stated that single-sex sport is “a fundamental good for our society” and that current laws “threaten sports clubs and associations with legal action for offering single-sex sporting events and competition exclusively for females”. Australia’s Prime Minister, Scott Morrison has also expressed his support for the Bill and Senator Chandler, calling it a “terrific Bill”.

What the Bill does

The Bill seeks to amend both the Sex Discrimination Act 1984 (Cth) and the Australian Sports Commission Act 1989 (Cth) to clarify that it is not “unlawful” for one “sex” to be excluded from the opposite sex’s sport (e.g. excluding transgender people from participating in single sex sports/sports teams which align with their affirmed gender, competitive or not).

Further, the Bill seeks to define the meaning of the word “sex” to solely mean a person’s biological sex (also known as the sex that they were assigned at birth), even if they no longer identify as such. The Bill also for the first time inserts the definitions of “male” and “female” into the Sex Discrimination Act (again relying on the persons sex assigned at birth, not how they may presently identify).

Our concerns with this Bill

The Sex Discrimination Act already allows for sporting bodies to exclude persons from competing where strength, stamina or physique of the competitors are a relevant consideration. This means the issue of unfair physical advantage is already dealt with by our existing discrimination legislation.

The proposed Bill goes further than necessary to protect “single sex sports” by providing for the exclusion of a person based on their sex at birth. This lifts the exclusion well beyond the already established relevance of strength, stamina or physique (and in fact, seeks to remove this consideration entirely).

These amendments seek to entirely remove the existing protections for trans and gender diverse competitors, and enforce that trans and gender diverse competitors may only compete in sports (regardless of whether they are competitive or not) against the gender they were assigned at birth.

In 2019 the Australian Human Rights Commission in partnership with Sports Australia released guidance for the Inclusion of transgender and gender diverse people in Sport. This guidance outlines key laws and protections in place and is designed to be a reference for Sports Clubs, Members, Umpires and Associations. Unfortunately, if passed, the proposed changes will no longer just apply to competitive sporting activities and also include non-competitive sports and will apply to all levels of sport. This will Bill will significantly impact trans and gender diverse people who enjoy engaging in community, social and school sports.

Further, the proposed definition of sex under the Bill is problematic and reductive. It uses outdated, binary understandings of sex; preventing trans people from ever departing from their sex assigned at birth and entirely neglecting those with intersex variations.

Such rigid definitions/understandings of “sex” also fail to consider those who fall outside the traditional understandings of sex and gender. Instead, transgender and gender diverse individuals will be required to participate in the sporting category that corresponds to their sex assigned at birth rather their affirmed gender. The impact of the person’s strength, stamina, physique (or, more importantly, lack thereof) will be irrelevant.

The misconceptions and flawed narrative

The narrative that this Bill is “necessary” comes from the prevalent misconception that transgender women have an “unfair biological advantage” over their cisgender peers. This argument perpetuates the unfounded rhetoric that transgender women retain some male biological characteristics after transitioning, which make them superior to their cis peers. Not only is this argument incorrect, it is also sexist, implying that women are weaker.

There is little evidence, if any, that women who play sport in Australia are concerned about the inclusion of transgender people in the leagues or clubs. In fact, sporting codes like the AFL Women’s league already allow for trans women and non-binary people to play alongside their cisgender peers without issue. Nor is there any evidence that transgender athletes are disproportionately dominating women’s sports (or sports more generally).

Since transgender athletes could openly compete at the Olympics, only 2 of the 71,000 Olympians, in the past 10 years, have been openly transgender. One of these athletes placed last and the other 37th out of 42 athletes. Clearly, the risk of transgender women “dominating” in women’s sports is misguided and based on untrue tropes and stereotypes.

Sport is an integral part of our society as Australians. Sporting groups have worked hard for decades to ensure that transgender and gender diverse people are supported and included. Australia’s Sex Discrimination Commissioner, Kate Jenkins, has said “participation in sport is a human right” and “sport should be a welcoming space that provides empowering experiences for all”. We stand with inclusive sporting organisations such as Pride in Sport, Proud2Play, Minus18, Twenty10, Equality Australia and Sport Australia who are calling for this unfair and dangerous Bill to be squashed.

If this article has raised any issues for you, please reach out to QLife Get Help (qlife.org.au) or Lifeline on 13 11 14 for support.