The current confusion surrounding gender inclusion policies in Australian sport has left many local sporting clubs and associations in a precarious position. While the ambition for greater inclusion in sport is widely shared, the reality of achieving such inclusion is, for local sporting clubs, far more complex.
Too often, guidance from authorities focuses on broad principles of inclusion without providing the practical, balanced advice that clubs need to uphold fairness, safety, and dignity for women and girls — both on the playing field and in changerooms and showers. And as it turns out, major sporting bodies are failing to properly inform clubs and associations about important legal protections already available to them under Australian law. This, in turn, raises questions about the integrity of our government institutions and agencies.
The permanent exemption that allows women and girls to compete only against females
True inclusion requires more than treating everyone the same; it demands an equity-based approach that recognises the needs and experiences of all participants.[7][8] For women and girls, this means ensuring that protections for safety, privacy, dignity, and fair competition are not overlooked. Yet, clubs are frequently left without clear information about a permanent exemption that exists in the Sex Discrimination Act 1984 (Cth), or how it applies to their circumstances. At the heart of this issue lies Section 42, which clearly states:
Nothing in Division 1 or 2 renders it unlawful to discriminate on the ground of sex, gender identity or intersex status by excluding persons from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.[1]
This provision — often referred to as the “permanent exemption” — explicitly recognises that there are circumstances where excluding individuals based on biological sex is lawful and necessary to maintain fair competition. Yet remarkably, many sporting clubs remain seemingly unaware of this crucial legal protection.
Inclusion in sport does not mean everyone can compete in every category
Australia’s Sex Discrimination Act and the UK’s recent Supreme Court ruling on the Equality Act 2010 confirm what commonsense dictates: fair competition requires sex-based categories where physical differences impact performance.[1][9] These laws protect against discrimination by ensuring all people can participate in sport — but not at the expense of safety, fairness, or women’s right to privacy (when we think about access to female-only toilets and changerooms). The SDA’s permanent exemption, like the UK’s Section 195, allows lawful exclusion from female categories without banning anyone from playing sport.
Misleading guidance from major organisations
The reality in Australia, though, is one where major sporting and human rights organisations, and government agencies routinely give little emphasis to the permanent exemption designed to safeguard women’s sport.
The Australian Sports Commission (ASC), the Australian Human Rights Commission (AHRC), and the Coalition of Major Professional and Participation Sports (COMPPS) have jointly produced guidelines on inclusion in sport that state that “The opportunity to participate in sport should be available to everyone in the community, regardless of their sex or gender identity”[2]; however, they fail to prominently highlight the legal provisions that allow for female-only competition when strength, stamina, or physique are relevant factors and where competing against male-bodied competitors compromises females’ participation in fair and safe competition.
In fact, the ASC’s transgender and gender diverse inclusion webpage focuses heavily on inclusion while placing minimal emphasis on how sporting organisations can legitimately invoke the permanent exemption to maintain fair competition.[3] This creates a dangerously incomplete picture for sporting clubs trying to navigate these complex issues.
While the ASC mentions the permanent exemption and its legal basis for ensuring fairness, it avoids explicitly endorsing its use to protect women’s sport. Moreover, the exemption is framed narrowly as applying only to “competitive” (not recreational) activities where physical attributes are relevant, and the advice is that it cannot be used to exclude children under 12, or those in non-competitive/recreational settings (see pages 18–19 of the guidelines).[2]
When the exemption is noted, the guidelines:
- Downplay protections: Emphasis remains on inclusion, with no examples of how clubs might lawfully exclude male-bodied competitors to protect female competitors in female-only categories.
- Provide no clear safeguards: No guidance is provided on implementing the exemption to preserve women’s categories, despite acknowledging that “biological differences are relevant to competitive sporting activities”.
- Focus on process over rights: Clubs are advised to use “fair and robust decision-making processes” when excluding individuals but are not explicitly empowered with the knowledge of how to prioritise female athletes’ safety or fairness when they are called upon to compete against males in female-only categories.
See our submission to the UN Special Rapporteur on Violence Against Women and Girls for further details.
The plight of local sporting clubs
This creates ambiguity for clubs seeking to balance inclusion with female athletes’ rights to compete in female-only categories without the presence of males, aligning with concerns that major organisations and government agencies are providing incomplete advice.[3][6] The guidelines’ emphasis on case-by-case assessments and procedural fairness risks leaving volunteers uncertain about how they can act under Section 42, exacerbating the confusion.
For local sporting clubs, typically run by volunteers with limited legal expertise, this omission creates significant challenges:
- Fear of discrimination claims: Without clear understanding of the permanent exemption, club administrators worry they may face complaints if they maintain female-only spaces or competitions.
- Confusion about legal obligations: Volunteers receive conflicting information, with the emphasis skewed toward inclusion rather than a balanced approach that also considers fairness and safety for women and girls.
- Limited resources: Unlike professional bodies, community clubs often lack the resources to seek independent legal advice.
The case study provided in the ASC’s materials about “Greenhill” using a ground owned by “Westacre” illustrates the problem. It frames Westacre’s refusal to unlock women’s changerooms for a men’s team with transgender and non-binary players as discriminatory.[3][4] This simplistic framing fails to consider the legitimate privacy concerns of female users of those facilities and creates the impression that clubs have no legal basis to maintain female-only spaces.
The legal reality vs presented guidance
It’s important to note that court decisions have upheld the relevance of strength, stamina, and physique in many sports. In McQueen v Callisthenics Victoria Inc [2010], VCAT determined that excluding a man from women’s callisthenics competitions was lawful, stating:
I am satisfied the respondent has proved to the appropriate standard there are differences between the sexes in strength, stamina and physique which can affect participation of females in the sport of callisthenics.[5]
VCAT has established that the question of relevance should be determined by considering whether “if both sexes were to compete against each other, the competition would be uneven because of the disparity between the strength, stamina or physique of men and women competitors”[5]. This important legal precedent is rarely mentioned in the guidance provided to sporting clubs.
The impact on women’s sport
Local-level clubs are therefore left to navigate a maze of competing expectations, legal uncertainties, and community pressures. The consequences of this misleading guidance extend beyond legal confusion. When sporting clubs feel pressured to ignore biological realities in favour of gender-identity-based, male inclusion in female categories, the following issues arise:
- Compromised safety: In contact and collision sports especially, biological differences can create significant safety concerns for women and girls that are minimised in current guidance.
- Reduced participation: Women and girls may withdraw from sports if they feel their right to fair competition and privacy is not protected.
- Loss of opportunity: The hard-won gains in women’s sporting opportunities risk being undermined when the permanent exemption is not properly explained and utilised.
For a first-hand account of how this feels for women, read our blog post on Hockey ACT’s policy of allowing male-born players to compete in the female hockey competition-without consulting women.
The broader crisis of public trust
This situation reflects a broader pattern of public institutions failing to uphold their duty to provide balanced, evidence-based information. Rather than equipping sporting organisations with comprehensive guidance that acknowledges both inclusion and the legal protections for female-only categories, these institutions appear to be prioritising ideological compliance over clarity.
This approach undermines public trust in our institutions. As noted in our submission to a 2023 parliamentary inquiry on probity and ethics in the Australian Public Sector, government departments are increasingly disregarding evidence-based policy in favour of ideological compliance, compromising their duty to provide impartial advice. This institutional capture has real consequences, particularly for women and girls whose rights to privacy, safety, and fair competition are being compromised by the inclusion of males in female-only sports.
Growing public distrust is highlighted by calls for the NSW Minister for Women to restore and protect female-only spaces and sport categories, reflecting widespread concern that government ministers are failing to uphold clear, evidence-based protections for women’s safety, privacy, and fairness.
A call for balanced guidance
Local sporting clubs work hard for the benefit of Australians. They deserve comprehensive guidance that:
- Clearly explains the permanent exemption in Section 42 of the SDA and how it applies to their circumstances in relation to the provision of female-only categories for women and girls.
- Provides balanced information about both inclusion and the legitimate reasons for maintaining female-only categories in certain contexts.
- Respects the autonomy of sporting organisations to make informed decisions based on the specific characteristics of their sport and the physical attributes engaged in that sport.
- Acknowledges the importance of protecting women’s and girls’ rights to privacy, dignity, and fair competition.
Conclusion
The current approach by major sporting bodies, government agencies, and human rights organisations fails to serve the needs of local sporting clubs and the women and girls who take part in them. By omitting or downplaying information relating to the permanent exemption in the Sex Discrimination Act, these bodies are effectively misleading clubs about their legal rights and obligations in relation to female participation.
If we truly value both inclusion and women’s sport, we must demand more transparent and balanced guidance from our public institutions. Local sporting clubs should not have to choose between inclusion and fairness for women and girls when the law already provides a framework for balancing these considerations. The permanent exemption exists for a reason: it’s time our government sporting agencies and human rights bodies acknowledged it and helped clubs understand how to apply it appropriately.
- Sex Discrimination Act, section 42
- Guidelines for the inclusion of transgender and gender diverse people in sport
- Trans and Gender Diverse Inclusion, Australian Sports Commission
- Transgender & gender diverse inclusion in sport: case studies
- McQueen v Callisthenics Victoria Inc (Anti-Discrimination) [2010] VCAT 1736 (26 October 2010)
- Discrimination against women in sport? The participation of women in sports competition, SportsLawyer.com.au
- Safe and inclusive sport: Preventing gender-based violence, Sport and Recreation Victoria
- Equality, equity and the role of fairness in inclusive sport, Inclusive Sport Design
- What does Supreme Court ruling on trans women mean for UK sport? Independent
