UNPACKING GUIDING DOCUMENTS IN TRANSGENDER & GENDER DIVERSE STUDENT INCLUSION IN PATHWAY SPORTS PROGRAM

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DOCUMENT #1  Guidelines for the inclusion of transgender and gender diverse people in sport – Australian Human Rights Commission   June 2019 – Unpacked

What Does The Law Say?

Summary of the federal Sex Discrimination Act 1984 (Cth) 1. Discrimination It is unlawful to discriminate on the basis of sex or gender identity in sport unless:

• the different treatment amounts to a ‘special measure’, or

• an exemption applies.

A special measure can be understood as ‘positive discrimination’ or affirmative action. Special measures are positive actions used to promote equity for disadvantaged groups.

An exemption ‘exempts’ a person or organisation from the operation of the Act, and means that a successful claim of unlawful discrimination cannot be brought.

There are four exemptions that are particularly relevant to sport:

1. voluntary body exemption

2. club exemption

3. competitive sporting activity exemption

4. temporary exemption.

When is Discrimination Allowed?

Permanent exemption—competitive sporting activity

The Act contains a permanent exemption in relation to ‘competitive sporting activity’. This is commonly, referred to as the ‘single-sex competition’ exemption, although it does not operate to make all single-sex or single-gender sporting competitions lawful.

The exemption allows for discrimination on the grounds of sex or gender identity only in ‘any competitive sporting activity in which the strength, stamina or physique of competitors is relevant’.

The words ‘strength’, ‘stamina’ and ‘physique’, and the term ‘competitive sporting activity’, are not defined in the Act. Their meanings have not been conclusively settled by the Federal Court of Australia.

However, in considering an equivalent exemption in the Victorian legislation, the Victorian Civil and Administrative Tribunal has stated that the exemption will operate if, when both sexes competed against each other, the competition would be uneven because of the disparity between the relative strength, stamina and physique of male and female competitors. This interpretation was approved by the Federal Court of Australia and the reasoning is likely to extend to people of different gender identities.

The objective of the exemption is to restrict competitive sporting activity to people who can ‘effectively compete’ with each other. This is intended to recognise that ‘biological differences between men and women are relevant to competitive sporting activities’.49 It can be understood as ensuring a ‘level playing field’.

If a sporting organisation decides to rely on the ‘competitive sporting activity’ exemption to exclude a person from a particular competition, it will need to satisfy itself that ‘strength’, ‘stamina’ or ‘physique’ are relevant and how the organisation assesses this. Given the diversity of sports and the role of different skills and physical characteristics (strength, stamina, physique) in each sport, the assessment should be specific to the sport in question.

Additionally, the exemption is limited to competitive sporting activities and does not apply to:

  • coaching
  • umpiring or refereeing
  • administration
  • ‘prescribed sporting activities’
  • sporting activities by children who are younger than 12 years of age

Relying on the ‘competitive sporting activity’ exemption

There may be times when a sporting organisation considers that participation on the basis of affirmed gender identity alone is not possible. For example, this may occur in a sport where an individual’s strength directly affects their ability, and the ability of others, to ‘effectively compete’. In these circumstances a sporting organisation may seek to rely on the ‘competitive sporting activity’ exemption in the Act.

When seeking to rely on the ‘competitive sporting activity’ exemption, the following factors should be considered:

• Importance of inclusion to your sport

Sports are often structured around particular core values and beliefs. These include respect, fairness, community, integrity, professionalism, and inclusion.

• Limits of ‘competitive sporting activity’

The exemption only applies to competitive sporting activity in which the competitors are aged 12 years and over.

The exemption only applies to competitors. It does not apply to coaches, umpires or referees, or administrators.

Not all sports or physical activities will constitute a ‘competitive sporting activity’ for the purpose of the exemption. For example, as the term is not defined in the Act, it is uncertain whether an activity, where the sole purpose is social participation, would constitute a ‘competitive sporting activity’.

• Relevance of strength, stamina and physique

Sports are diverse. Different sports require different skills and physical input from participants. If strength, stamina and physique are relevant, the assessment should be based on these factors and not on gender identity.

The exemption only applies to sports where the strength, stamina or physique of a competitor is relevant. These characteristics might not be relevant if your sport is skill rather than strength-based. If these characteristics are not relevant to ‘effective competition’ within your sport, then the exemption may not apply.

• A fair and robust decision-making process

If a sporting organisation seeks to specifically exclude an individual from a ‘competitive sporting activity’ by relying on the exemption, then it is advisable for it to consider:

  • consulting with the relevant national or state sporting organisation
  • consulting with the relevant player association
  • ensuring that it has an established, clear, written and publicly available policy (prior to seeking to rely on the exemption) which states:
    • » how it will assess the application of the exemption
    • » who will make the assessment
    • » what evidence will be used for this assessment, as well as the other factors on which the assessment will be based
  • ensuring that any assessment is undertaken in a timely manner so that the individual is not unnecessarily disadvantaged
  • providing the individual with an opportunity to respond to any proposal to exclude them based on the exemption
  • providing the individual with written reasons for any decision to exclude them
  • providing the individual with an opportunity to seek a review of a decision to exclude them

DOCUMENT #2 Created and Loved – Australian Catholic Bishops Conference Sept 2022

The ‘Created and loved’ guide outlines a pastoral approach shaped by the theological, medical and legislative context in which Catholic schools operate.

Key take out notes

P.2 Catholic school leaders are responsible for guiding students through the opportunities and challenges of contemporary culture with a spirit of discernment, engagement and care. In Australia over the last decade, the number of children and young people presenting to gender clinics has steadily risen.2 There has been a dramatic rise in the number of children and young people either experiencing, or experimenting with, a gender different from their biological sex. Gender variance is the umbrella term used to describe gender identity, expression or any non-conforming gender behaviour, including a non-binary expression of gender.3 The child’s or young person’s desire to be of the opposite sex is often an indicator of gender variance.

P.2 …..situations, however school leaders are encouraged to contact the appropriate Catholic education office for advice and support should these needs arise. The relevant Catholic Education authority should develop policies and protocols in consultation with the relevant governance authorities and principals of schools in their diocese. Principals and teachers should always feel supported and accompanied when facing these circumstances.

P.6 Legislation

• Catholic schools must respect, protect and promote authentic human rights.

• It is unlawful to discriminate against a person on the grounds of their sexual orientation, gender identity or intersex.

• Catholic school leaders and staff are to:

  • Be informed about and observe relevant Commonwealth and State (or Territory) legislation;
  • Stay updated about changes in legislation and education regulations/policies pertaining to sexual discrimination, orientation, gender identity and intersex issues;
  • Be aware of the differences between, and convergences in, government and diocesan policies.

P.7 School Programming and Provision

School sports and physical education

  • It is paramount that close attention is paid to providing access and participation for all students and ensuring environments are inclusive, safe, fair and free from discrimination.
  • In single-sex competitive competition where students are over the age of 12 years, it may be lawful to exclude a student from a team where the strength, stamina or physique of competitors is relevant

CSNSW Sport Next Steps Forward?

 To be discussed - Each situation to be dealt with individually.

  1. Contact leadership team – work through with team aligning with Diocesan guidelines
  2. Ensure student has been identified in the school community as being gender diverse
  3. Contact CSNSW Sport office to identify situation.
  4. CSNSW Sport will review student eligibility in consultation with Diocesan Rep, Convenor and leadership team.