No published assessment, questions over who was consulted, and female-only categories as the exception: the 2019 sports inclusion guidelines, seven years on. These are the guidelines behind the questions we put to the Minister for Sport at the National Press Club on 15 October.
Clubs that run female-only competition look to the Australian Sports Commission (ASC) for guidance. The guidance they use dates from June 2019, when the Australian Human Rights Commission published its Guidelines for the inclusion of transgender and gender diverse people in sport, developed with Sport Australia and the Coalition of Major Professional and Participation Sports. The ASC still publishes them. Seven years on, it is reasonable to ask what they say, how they were developed, and whether anyone has assessed how they work in practice.
The weight clubs give the guidelines
The Commission publishes the guidelines alongside a Reflective Practice Framework, which was developed to help Sport Australia and the major sports coalition monitor the guidelines’ implementation and effect. Sporting organisations are directed to both as the reference point for their own policies. Guidance from a Commonwealth authority carries weight, and clubs take it seriously. The guidelines state that the Australian Human Rights Commission considers that implementing them will minimise the likelihood of a successful discrimination claim being made, although relying on them does not protect an organisation from a finding of unlawful discrimination.
Affirmed gender identity first, female-only categories second
Page 35 of the guidelines says an inclusion policy should provide that participation is based on a person’s affirmed gender identity, not their sex recorded at birth, “to the fullest extent possible”. Page 36 then introduces the exemption in section 42 of the Sex Discrimination Act, which applies to competitive sporting activity where strength, stamina or physique is relevant. We describe this sequence as a practical default: participation on the basis of gender identity is the starting point, and female-only categories are the exception a club must reach.
The guidelines do explain the exemption. But the advice that follows is framed around a decision to exclude an individual. A club is told to consult its national or state body and the player association, adopt a written and public policy, specify the decision-makers and the evidence, give the person a chance to respond, provide written reasons, and offer a review. For a volunteer-run club, that is a burdensome process. The guidelines do not clearly show a club how to establish and keep a female-only category in advance (where the statutory criteria are met) so that it does not need to defend each exclusion one person at a time.
Reports that clubs fear discrimination claims
We are hearing that some clubs, including paddle-sports clubs, running clubs and clubs in the AFL, are afraid to exclude males from female categories because they fear a discrimination claim. We are also hearing from Save Women’s Sport Australasia on the same concern. These are reports of fear. They do not show that clubs have admitted males into female-only competition, and we do not claim how common they are. A club that is afraid to exclude may never generate a complaint, which is one reason complaint numbers alone cannot settle the matter.
No published assessment after seven years
Reports from clubs are only a starting point; the Reflective Practice Framework published with the guidelines was meant to supply the systematic evidence. That framework provides for three stages: an initial assessment three to six months after launch, an implementation assessment at six to twelve months, and a longer-term assessment “approximately three to five years after the launch of the Guidelines”, or at another natural review point. For guidelines launched in June 2019, that window ran from about 2022 to 2024.
We can find no published assessment. We do not say none took place; one may have been done internally. And the framework does not require an independent or public assessment. Instead, its stated long-term objective is the inclusion of transgender and gender diverse people, and it lists no measure of fairness, safety or participation in female competition.
No women’s group identified in the published consultation record
The framework assesses the guidelines against the aim they set for themselves. How that aim was set depends on who was consulted when the guidelines were developed. The guidelines themselves say the Australian Human Rights Commission consulted a broad range of stakeholders and they list them by category: national and state sporting organisations, government sport and recreation departments, player associations, non-government organisations, other human rights agencies, academics, legal and medical experts, and athletes, including transgender and gender diverse athletes.
We can find no women’s group advocating sex-based protections and rights for female-only categories in the published record. We do not say none was consulted — the published record is the only evidence available to us.
Questions a review would answer
A review of guidance that clubs rely on would establish several things. It would say whether the longer-term assessment took place, and if so who carried it out and what it examined. It would list the organisations consulted in 2019 and since, and how their views were recorded, and it would hear directly from women’s groups that want female-only categories kept on the basis of sex. It would test the guidance against its effect on fairness, safety and participation in female competition, and examine whether the recommended process is workable for volunteer-run clubs. It would also consider whether the guidance can show a club how to establish and keep a female-only category in advance, where the statutory criteria are met. It would gather what clubs are experiencing, including the reports described above and any data on complaints, and it would publish its terms of reference and findings.
An independent, published review that consults women’s groups would do this in a form that clubs, players and the public can read. Guidance this widely used has a case for that kind of scrutiny, and the Australian Sports Commission is the body that can say what has already been done.