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'Save Women's Sport' Bill introduced into parliament

Our previous article 2021 IOC Guidelines on transgenders sport released covered the updated transgender guidelines introduced by the International Olympic Committee (IOC). Since then, we have seen the Sex Discrimination and Other Legislation Amendment (Save Women's Sport) Bill (the Bill) introduced into Parliament prior to this year's federal election.  We have also seen commentary from 2022 federal Liberal Party candidate Katherine Deves in New South Wales opposing trans-gender participation in professional sports and more recently comments from Australian swimmer Emma McKeon in relation to her sport.

McKeon stated she believes there is an underlying unfairness in biologically male and female competitors participating against each other in an event, saying that "you don't want to have females racing against swimmers who are biologically male, because it's just not fair".  However, McKeon has also been at pains to stress the need for inclusivity in professional sport which demonstrates the complexity of this issue. Far more controversial have been the remarks of Katherine Deves, including linking transgender issues to criminal offences and human rights violations, which have subsequently attracted much attention during the election campaign.

The Bill (which lapsed when Parliament was prorogued ahead of the 2022 election) sought to amend the Australian Sports Commission Act 1989 (Cth) by adding the promotion of participation in women's sport, including by supporting the provision of single-sex sport for women and girls, as an object and function of the Commission.

The Bill also amends the Sex Discrimination Act 1984 by:

  • providing that the provision of single-sex sports, services and facilities for women and girls is consistent with the objects of the Act;
  • inserting definitions of 'man' and 'woman'; and
  • providing that it is not unlawful to exclude persons of one sex from participation in any sporting activity intended for persons of a different sex (adding that 'sex' for the purposes has its ordinary biological meaning).

These amendments would mean sporting clubs that choose to offer single-sex sport for women and girls born biologically female would not subsequently be subject to legal action for doing so.

However, whether it progresses to become law remains to be seen following the outcome of the election.

The Bill seems to be contrary to the approach currently taken by Sport Australia and many major Australian sporting organisations that have published policies promoting the inclusion of transgender participants in sport, particularly at a community sport level.

In any event, transgender policies may be the most topical current issue in sport.

Prior to the Tokyo Olympics, there was much publicity around the selection of New Zealand transgender weightlifter, Laurel Hubbard, to compete in the women's weightlifting and the parameters introduced by the International Athletics Federation (now World Athletics) which resulted in 800m track athlete Caster Semenya not participating in Tokyo.

Discussion on the topic continues globally with transgender swimmer Lia Thomas currently dominating US women's college swimming and the collective UK's sports councils publishing a guidance for transgender inclusion in domestic sport in late 2021 (which specifically addressed the difficulty in balancing transgender inclusion with safety and competitive fairness).

The NRL has recently entered into the conversation and has floated an alternative approach of putting the final decision to the existing players themselves.

We will be watching this evolving sports law issue closely.

"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."