By Nicholas Crouch
In recent years, transgender (‘trans’) and intersex athletes have faced both significant advancements and setbacks concerning equitable access to participation in elite sports.
Trans athletes have increasingly been involved in elite sports. In 2016, following the successful challenge of the International Olympic Committee’s (‘IOC’) policies and guidelines for the participation of transgender athletes, Chris Mosier became the first known transgender athlete to represent Team USA’s sprint duathlon men’s team at the World Championship level. [1] In 2021, Laurel Hubbard, a New Zealand weightlifter, and Quinn, a Canadian soccer player, became the first transgender athletes to compete in the Olympics, representing positive strides for transgender athletes in professional sport.
However, trans and gender diverse athletes’ participation in sports at the elite level has recently faced significant setbacks. The issue has been brought to the forefront of policy debates, following the International Swimming Federation (‘FINA’) introducing measures that require trans athletes to have medically completed transitioning by the age of 12. In Australia, medical practitioners are unable to initiate puberty blockers or gender-affirming hormonal treatment without receiving a child’s guardian’s consent. [2] Where consent is not provided, a medical practitioner cannot initiate treatment without court authorisation. [3] With almost unilateral global laws that ban the independent initiation of sex reassignment procedures until the age of 16–18, the effect of FINA’s policy functionally bans trans athletes from elite swimming competitions. FINA’s decision followed the success of American transgender swimmer Lia Thomas, who won the women’s National Collegiate Athletic Association’s swimming championship in March of 2022, and is predicated on ensuring competitive fairness and physical safety of competitors. [4] Following this decision, the International Rugby League (‘IRL’), citing safety concerns, has banned trans athletes from competing while it reviews its policies. [5] Contemporaneously, World Athletics stated it would introduce tougher policies on transgender athletes taking part in women’s track and field events. [6]
In Australia, the former Liberal federal government controversially tabled the Sex Discrimination and Other Legislation Amendment (Save Women’s Sport) Bill (‘the Bill’). The Bill sought to permit the exclusion of persons from participation in any sporting activity intended for a different sex, where the definition of ‘sex’ is confined to its ordinary biological meaning. [7] Another provision sought to frame the facilitation of single-sex sports, services and facilities for women and girls as consistent with the objects of the Sex Discrimination Act (‘the Act’). [8] The Bill, which lapsed when Parliament was prorogued ahead of the 2022 election, actively challenged the Australian Human Rights Commissions guidelines for the inclusion of transgender and gender diverse people, in accordance with sex discrimination legislation and human rights treaties. [9] Notwithstanding the Bill’s failure, Sport Australia, the AFL, and other Australian sports governing bodies have since come under scrutiny due to onerous and exclusionary policies that overburden prospective trans and gender diverse athletes from competition.
Per the AFL’s Gender Diversity Policy, trans athletes are required to maintain and produce medical documents that reflect regulated testosterone levels at or below five nanomoles per litre 24 months prior to applying to compete. [10] Athletes must also submit physiological data, including their height, weight, bench press, squat, vertical jump, 20-metre sprint and 2-kilometre running times. [11] In addition, applicants must make themselves available for further physiological testing as and when the AFL requests. [12] Satisfying these requirements, the AFL sub-committee is empowered to refuse approval where there is ‘relevant, and significant disparity in strength, stamina or physique…[that] may reasonably be regarded to give rise to an unreasonable competitive advantage’ or pose an unacceptable safety risk. [13]
Section 42 of the Sex Discrimination Act 1984 (Cth) (‘SD Act’) provides that it is against the law to discriminate on the grounds of sex or gender identity. [14] However, the SD Act permits the exclusion of athletes based on sex where competitors’ strength, stamina and physique are relevant. [15] Historically, there has been a dearth of case law informing the extent strength, stamina and physique must contribute to exclude trans and gender diverse athletes from competition legally. However, South v RVBA suggests that these factors must be relevant to ‘something more’ than the activity itself. [16]
In 2016, prospective AFLW athlete Hannah Mouncey’s application to partake in the first AFLW draft was blocked by the AFL sub-committee, who were guided by an identical provision in the Victorian Equal Opportunity Act (‘EO Act’) and Human Rights Commission’s Guidelines. [17] At the time, the AFL relied on s 72(1) of the EO Act, citing the competitive advantage Mouncey’s strength, stamina or physique gave her as the determining factor. Accordingly, Mouncey, who is 190 cm tall and weighed 100kg at the time, was prevented from entering the 2017 AFLW draft despite compliance with hormone regulation mandates. Subject to great criticism, the AFL’s announcement was not supported by academic or scientific evidence substantiating her competitive advantage. Rather Mouncey’s overall strength, stamina, and physique, comparative to the maturity of the AFLW competition, its current player cohort and Mouncey’s individual circumstances, was held to establish an unacceptable advantage and safety risk to other AFLW draftees. [18] Whilst the AFL’s threshold for strength, stamina and physique requirements were never clarified, the complexities of Mouncey’s case were particularly confounding given GWS ruck Erin McKinnon (drafted in 2016) is only a centimetre shorter than Mouncey, and 2019 draftee Erin Hoare is four centimetres taller. Furthermore, the AFLW’s concerns did not extend to Mouncey’s participation in the AFL Canberra women’s state competition; however, exceptions to the Discrimination Act 1991 (ACT) are not as expansive comparative to the EO Act. [19]
In 2018, Mouncey applied and subsequently withdrew from the AFLW draft citing psychological concerns arising from ‘the toll’ of rigorous testing requirements. [20] Despite the AFL’s publicly inclusive stance, Mouncey stated that the AFL made ‘every effort…to wear me down to a point where I couldn’t continue’, highlighting ongoing barriers and exclusionary practices that uniquely affect trans athletes. [21]
AFL inherently attracts persons of varying physiques, strengths, and capabilities, often requiring these differences to create a successful team. As Windholz observes, the rules of the game serve to mitigate and manage risks that arise from a clash of these differences. Given the rationale for Mouncey’s exclusion is supported by her relative strength, stamina, and physique rather than sex, the AFL’s decision induces a logical argument for the prevention of equally advantaged cisgender athletes from competing, given the disparity in size and strength is relevant, not the source of the disparity. [22] Accordingly, the AFL’s failure to provide support for the reasoning underpinning Mouncey’s exclusion represents a significant regression in equitable participation in Australian sport.
Conversely, World Rugby’s (‘WR’) position on banning all transgender athletes who have experienced male puberty from professional competition rests on the basis of safety concerns. Unlike the AFL, World Rugby conducted extensive scientific research, consulting with independent experts in the fields of physiology, medicine, risk, law, advocacy and socio-ethics before publicising their position. Given the currently available science, WR concluded that the effects of male puberty on trans women produced significant size, force-and-power-producing advantages that cannot be mitigated given rugby’s inherently high impact nature. [23] In relation to trans men, biological modelling indicated an increased injury risk factor due to mass and strength variables. [24] Notably, these findings were drawn from comparing biological men to biological women and did not conduct studies on trans men or women. [25] By contrast, Rugby Australia’s position stands at odds with WR. The national league confirmed that transgender athletes will continue to be welcomed in community rugby competitions on a case-by-case basis, provided athletes submit a gender identity dispensation form to Rugby Australia. [26]
Globally, as sports’ governing bodies attempt to balance inclusivity with ensuring a fair and safe competitive environment, trans and gender diverse athletes continue to face discrimination and adversity. The Australian Human Rights Commission posits that ‘participation in sport is a human right. [That] we are all born free and equal in dignity and rights’. [27] However, the case of Hannah Mouncey highlights Australian sports bodies’ ongoing failure to meet this ambition. Accordingly, as emerging social understandings develop concerning the non-binary nature of gender and sex, great strides are still required to produce a truly equitable environment for all sporting participants.
References
[1] George B Cunningham, Erin Buzuvis and Chris Mosier, ‘Inclusive Spaces and Locker Rooms for Transgender Athletes’ (2018) 7(4) Kinesiology Review 365, 366.
[2] Re Imogen [No 6] [2020] FamCA 761.
[3] Family Law Act 1975 (Cth) ss 34, 60CA, 60CB, 60CC, 61C, 64B, 65D, 67ZC, 91, 121.
[4] International Swimming Federation, Policy on Eligibility for the Men’s and Women’s Competition Categories (Report, 20 June 2022) 1.
[5] International Rugby League, Statement on Transgender Participation in Women’s International Rugby League (Report, 21 June 2022).
[6] Reuters, ‘World Athletics and FIFA Reviewing Transgender Policies after FINA Ruling’, ABC News (online, 21 June 2022) <https://www.abc.net.au/news/2022-06-21/athletics-sebastian-coe-fifa-watching-fina-transgender-rules/101169362>.
[7] Sex Discrimination and Other Legislation Amendment (Save Women’s Sport) Bill 2022 (Cth).
[8] Ibid.
[9] Australian Human Rights Commission, Guidelines for the Inclusion of Transgender and Gender Diverse People in Sport (Guidelines, June 2019).
[10] Australian Football League, Gender Diversity Policy (Report, 2020).
[11] Ibid.
[12] Ibid.
[13] Ibid 12.
[14] Sex Discrimination Act 1984 (Cth) s 42.
[15] Ibid.
[16] South v RVBA [2001] VCAT 207, [34].
[17] Victorian Equal Opportunity & Human Rights Commission, Trans and Gender Diverse Inclusion in Sport – Complying with the Equal Opportunity Act 2010 (Report, May 2017).
[18] Triple M Footy Newsroom, ‘AFL Releases Statement on Hannah Mouncey Decision', Triple M (Web Page, 17 October 2017) <https://www.triplem.com.au/story/afl-releases-statement-on-hannah-mouncey-decision-63469>.
[19] Brisbane Times, ‘Ainslie Coach Chris Rourke Surprised at AFL Barring Transgender Player Hannah Miuncey from AFLW Draft’ (Web Page, 18 October 2017) <https://www.brisbanetimes.com.au/sport/afl/ainslie-coach-chris-rourke-surprised-at-afl-barring-transgender-player-hannah-mouncey-from-aflw-draft-20171018-gz2zoa.html>.
[20] Eric L Windholz, ‘Transgender and Intersex Athletes, Professional Sport and the Duty to Ensure Worker Health and Safety: Challenges and Opportunities’ (2020) 41(2) Adelaide Law Review 597, 608.
[21] Ibid.
[22] Ibid 618.
[23] World Rugby, Transgender Guidelines (Guideline, May 2021).
[24] World Rugby, Transgender Men Guidelines (Guideline, May 2021).
[25] World Rugby, Summary of Transgender Biology and Performance Research (Guideline, May 2021).
[26] Rugby Australia, Community Guidelines: For the Inclusion of Transgender and Gender Diverse People in Rugby (Guideline, 2020).
[27] Australian Human Rights Commission, Guidelines for the Inclusion of Transgender and Gender Diverse People in Sport (Guidelines, June 2019).
Bibliography
A Articles/Books/Reports
Australian Football League, Gender Diversity Policy (Report, 2020)
Australian Human Rights Commission, Guidelines for the Inclusion of Transgender and Gender Diverse People in Sport (Guidelines, June 2019)
Brisbane Times, ‘Ainslie Coach Chris Rourke Surprised at AFL Barring Transgender Player Hannah Miuncey from AFLW Draft’ (Web Page,18 October 2017)
Eric L Windholz, ‘Transgender and Intersex Athletes, Professional Sport and the Duty to Ensure Worker Health and Safety: Challenges and Opportunities’ (2020) 41(2) Adelaide Law Review
George B Cunningham, Erin Buzuvis and Chris Mosier, ‘Inclusive Spaces and Locker Rooms for Transgender Athletes’ (2018) 7(4) Kinesiology Review
International Rugby League, Statement on Transgender Participation in Women’s International Rugby League (Report, 21 June 2022)
International Swimming Federation, Policy on Eligibility for the Men’s and Women’s Competition Categories (Report, 20 June 2022)
Reuters, ‘World Athletics and FIFA Reviewing Transgender Policies after FINA Ruling’, ABC News (Online, 21 June 2022)
Rugby Australia, Community Guidelines: For the Inclusion of Transgender and Gender Diverse People in Rugby (Guideline, 2020)
Triple M Footy Newsroom, ‘AFL Releases Statement on Hannah Mouncey Decision', Triple M (Web Page, 17 October 2017)
Victorian Equal Opportunity & Human Rights Commission, Trans and Gender Diverse Inclusion in Sport – Complying with the Equal Opportunity Act 2010 (Report, May 2017).
World Rugby, Summary of Transgender Biology and Performance Research (Guideline, May 2021)
World Rugby, Transgender Guidelines (Guideline, May 2021)
World Rugby, Transgender Men Guidelines (Guideline, May 2021)
B Cases
Re Imogen [No 6] [2020] FamCA 761
South v RVBA [2001] VCAT 207
C Legislation
Family Law Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)
Sex Discrimination and Other Legislation Amendment (Save Women’s Sport) Bill 2022 (Cth).
Nicholas Crouch is a fourth-year Laws (Honours) and Arts (Sociology and Anthropology) student who has a great interest in social justice and human rights advocacy. Nick is currently undertaking an internship with the Leprosy Mission Australia, seeking to support the resourcing of international programs that provide vital medicines and long-term support for rural and marginalised communities affected by Leprosy. In addition, Nick is an avid Geelong supporter who has a keen interest in the intersection of sports, law, and gender.