Last week the Prime Minister’s endorsement of Senator Claire Chandler’s “Save Women’s Sport” Bill caused general consternation among the press, with many commentators arguing that the Bill is, at best, unnecessary because it addresses an illusory problem.
All is well with women’s sports, said sports journalists Georgina Robinson and Roy Ward, because the “competitive sporting activity” exemption in the Sex Discrimination Act already gives sporting authorities all they need to “ensure the integrity, fairness and safety of women’s sport and sporting competitions is maintained”. Even though Chandler says she has heard from lots of concerned parents, Robinson and Ward infer we can just disregard that because Kelly Ryan, Chief Executive of Netball Australia, doesn’t see an issue.
Unlike her critics, Chandler has done her homework on this issue. Her tireless efforts in listening to parents in the community, asking unpopular questions, pressing uncooperative bureaucrats for answers, and ignoring the insults of her parliamentary colleagues, has revealed that the “competitive sporting activity” exemption inserted into the Sex Discrimination Act (SDA) in 2013 never was fit for purpose. Whatever flimsy protections it was supposed to offer women’s sports have been squeezed to nothing by the subsequent interpretive efforts of activists working in collaboration with the Australian Human Rights Commission (AHRC) to produce the 2019 Guidelines for Inclusion of Transgender and Gender Diverse People in Sport (“The Guidelines”).
Australia is only now waking up to the fact that the 2013 changes to the SDA that introduced protections for “gender identity” actually had the effect of redefining what a “woman” is. “Woman” used to mean “a member of the female sex irrespective of age”. Now, it means anyone who identifies as a woman. In May 2021, when Chandler asked the Office for Women how they now define “woman”, they answered:
“We recognise individuals who identify as women. That’s in accordance with the Australian Government Guidelines on the Recognition of Sex and Gender.”
Ridiculous as it might sound, they are right: the law no longer has the capacity to differentiate between “[male] women” and “[female] women”.
This creates problems when you are trying to juggle the competing demands of Australian discrimination law that prohibits discrimination on the grounds of sex and on the grounds of gender identity. What do you do when these demands collide – as they do where “trans rights” (gender identity) meet “women’s rights” (sex)?
Avoiding discrimination is quite tricky because, depending on the circumstances, it might require you to a) treat people exactly the same or b) recognise people are different and adjust for those differences. Direct discrimination is where you establish a policy that treats groups differently where they should be treated the same. Indirect discrimination is where you apply the same policy uniformly to different groups where – because they have different attributes (e.g. sex or gender identity) – this works to the disadvantage of one group.
How does all this translate into practice? Let’s take changerooms as an example:
Situation A: The Guidelines explain that where you have a biological male (transwoman) playing in the women’s team, asking this individual to use a separate changeroom would constitute discrimination on the grounds of gender identity (because the transwoman is being treated differently to other women when they should be treated as the same).
Situation B: On the other hand, when you have a biological female (transman) playing in the men’s team, then expecting them to share a changeroom with biological males also constitutes discrimination because it disadvantages biological females who may not be comfortable sharing changerooms with men. Failing to recognise and adjust for the fact that transmen are different to men indirectly discriminates against transmen.
Do all people with female bodies get the same consideration as transmen? The Guidelines’ answer to that would be “No” − please refer to Situation A.
The result is that The Guidelines provide no means of ensuring that adult, male-bodied transwomen are not entitled to occupy the female changerooms used by young girls. This clearly creates opportunities for sexual harassment and assault that any predator (transgender or otherwise) might freely exploit, but sporting clubs are prohibited from taking the usual precautions to reduce these predictable risks.
At the same time, sporting clubs are not allowed to ask new members any questions that might reveal a transgender identity (i.e. a discrepancy between social and biological identity). This means that clubs won’t necessarily know who is and who isn’t transgender; but they still have to know when to treat transmen like men and transwomen like women (to avoid direct discrimination) and when to recognise and adjust for situations when uniform treatment would produce detrimental outcomes for the gender diverse (to avoid the perils of indirect discrimination).
Even if sporting club administrators know that a particular individual is transgender, The Guidelines warn them not to reveal this information to other members of the club. This means that women in the club might be playing against biological males without knowing it. Where the sport concerned is a contact or combat sport, this significantly alters the risk profile of the activity. Chandler has pointed out that recent modelling from World Rugby concluded that women playing against men have a 30% higher risk of head and neck injury than if they were playing against women.
Normally, clubs can claim protection from liability for injury using the common law principle of volenti non fit iniuria (also known as “the voluntary assumption of risk”). This principle applies where a player is 1) aware of all the risks involved, including both the nature and the extent of these risks and 2) has consented to waive all claims for damages either expressly (by statement) or implicitly (by actions). But women who do not know they are playing contact sports against biological males have not been provided with the information they need to assess the risk involved and therefore cannot be said to have voluntarily assumed responsibility for it. Clubs that abide by The Guidelines’ recommendations to avoid falling foul of anti-discrimination law are exposed to the different risk of liability for injuries incurred by women.
It seems that the sporting authorities who are supposed to ensure the fairness and safety of women in sport have been slow in waking up to the problem. Appearing before Senate Estimates in October 2020, Dr David Hughes, Chief Medical Officer of the Australian Institute of Sport, expressed an admirable commitment to ensuring fairness for women:
“Sport Australia and the Australian Institute of Sport have never and will never be party to any policy or any initiative which endangers women’s safety in the female category or that compromises fairness.”
Unfortunately, such a statement is completely inconsistent with their endorsement of The Guidelines.
True, The Guidelines were supposed to help sporting organisations steer a safe course through the minefield of legal liability. If this was the brief, the AHRC delivered only one side of it. The Guidelines focus only on anti-discrimination law and trans inclusion; consideration of how these guidelines affect women and girls features nowhere in its pages.
Fortunately, Chandler’s Bill provides an elegant solution to all these problems. As the Explanatory Memorandum states:
“The purpose of the Sex Discrimination and Other Legislation Amendment (Save Women’s Sport) Bill 2022 is to clarify that the operation of single-sex sport is not a breach of the Sex Discrimination Act 1984 (the Act), and to confirm that supporting the operation of single-sex sport for women is a fundamental objective of the Australian Sports Commission.
“The Bill is necessary to correct current interpretations of the Act which suggest that excluding males from women’s sport will in many cases be a breach of the Act, and which place the onus of proving that it is reasonable to exclude a male from a women’s sporting activity on the person or organisation who is subject to a complaint under the Act.”
Perhaps when sports administrators finally wake up to the invidious legal position in which they currently stand, they might have the good sense to be more grateful to Senators like Chandler, who have done the hard work in listening to stakeholders and researching the issue and are proposing pragmatic and common-sense changes to the law in response.