Do laws need to be changed to give women and girls the opportunity to play what proponents call “single-sex sport”? Where would that leave those who identify as transgender? The issue has emerged with legislation proposed by Tasmanian Liberal Senator Claire Chandler, and has prompted strong reactions for and against the proposal.
ACT Chief Minister Andrew Barr and the ACT Greens are among those who have condemned the “Save Women’s Sport” bill that Senator Chandler tabled in the Senate last month. Its intention is to confirm that Australian sports clubs and associations can offer single-sex sport for women without risking being in breach of the Sex Discrimination Act 1984.
Transgender women (born biologically male) would not, however, be able to compete in women’s sports.
Both Prime Minister Scott Morrison and feminists have welcomed the bill, and Senator Chandler claims she has received support from thousands of Australians involved in sport, as well as coaches, administrators, and parents.
But transgender advocates and politicians across the spectrum have opposed it.
“This is a bill that is seeking to solve a problem that doesn’t exist,” said Jenni Shoring, CEO of A Gender Agenda, the ACT’s intersex, trans and gender diverse advocacy organisation. She was “incredibly disappointed” the bill sought “to prohibit trans girls and trans women from playing sport in the gender that they identify with”.
“It is in our view that Australia, as a sporting nation, should be inclusive of all those who wish to play sport, in the gender they identify with,” she said.
Echoing comments made by the LGBTIQ+ advocacy group Equality Australia, Johnathan Davis MLA, the Greens spokesperson for LGBTIQA+ affairs, posted on Facebook last week that the “divisive and hateful Bill … would exclude trans and gender-diverse kids and adults from sports”.
Senator Chandler told Canberra Daily that was not her intention. “My Save Women’s Sport Bill simply ensures Australian women and girls have the right to play single-sex sport. Despite the claims made by opponents, my Bill does not exclude or ban anyone from sport.
“It ensures sports and associations can offer a single-sex competition for women and girls, in addition to as many other categories and competitions as they would wish.” That might include ‘Open’ divisions available to everyone regardless of sex or gender identity, and mixed-sex social sport, she said.
What is in the Bill?
Senator Chandler believes the Sex Discrimination Act (SDA) 1984 limits the circumstances in which single-sex sport can be offered, and that (under the 2019 Guidelines for the inclusion of transgender and gender diverse people in sport) sports clubs, associations, and volunteers can face legal action if they exclude transgender people from women’s sport.
“This interpretation has been used as a weapon to pressure sporting organisations to allow males to play women’s sport,” she said at the bill’s second reading.
Her Sex Discrimination and Other Legislation Amendment (Save Women’s Sport) Bill would amend the Australian Sports Commission Act 1989 to require the ASC to promote women’s participation in sport, including by supporting the provision of single-sex sport for women and girls.
It would also amend the SDA to ensure that the provision of single-sex sports, services, and facilities for women and girls was consistent with the objects of the Act; to insert definitions of ‘man’ and ‘woman’ (in 2013, Senator Chandler noted, the former Labor Government’s Sex Discrimination Act amendment repealed the definitions of ‘man’ and ‘woman’ from the legislation); and to provide that it was not unlawful to exclude people of one sex from taking part in any sporting activity intended for persons of a different sex.
Senator Chandler argued that her amendments would give sporting administrators confidence to offer single-sex sport for women, and female athletes certainty they would not be forced to compete against ‘males’. Currently, she believes, Commonwealth law prevents codes from ruling that women’s competitions were single sex; the onus is on administrators to prove that an exemption applied – a ‘case-by-case’ assessment model.
The bill follows the senator’s successful motion in the Liberal Party federal council last year that differences between men and women were a legitimate reason for the existence of female-specific sports, health services, domestic violence services, refuges, shelters, change rooms, and prisons, and that the Federal Government should affirm its support for the provision of single-sex sports facilities and services.
The LGBTI newspaper Star Observer called that motion “a measure against trans inclusion”.
“As this bill does not attempt to define ‘biological sex’ or ‘sex’,” said A Gender Agenda’s Ms Shoring, “this has the potential to completely erase intersex people altogether, and poses inherent issues with how women and men with variations in sex characteristics would be recognised and/or classified under this scheme. This is also against all current science that is clear and conclusive that sex is not binary and transgender people are real.”
What is transgender? Gender versus sex
Transgender advocates maintain that gender – the personal sense of one’s own gender, which may differ from ‘birth-assigned’ sex – rather than biological sex (physical characteristics), define identity.
In the words of Dr Milton Diamond, Professor Emeritus of anatomy and reproductive biology at the University of Hawaii: “Transsexuals are intersexed in their brains as others are or might be more obviously so in their gonads, genitals, hormonal character, receptors, enzymatic or chromosomal constitution. And it is this brain intersexuality that biases the person to assert his or her gender identity.” Or, more simply: “The most important sex organ is between the ears rather than between legs.”
Brain studies show transgender people’s brain structure, connectivity, and function do not match their birth-assigned sex, according to Dr Deanna Adkins, an American paediatric endocrinologist and director of a gender care clinic. (The University of São Paulo, Brazil, has made similar findings.) Gender identity is fixed, cannot be changed by others, and is not undermined or altered by the existence of other sex-related characteristics, Dr Adkins argues.
“The cost of not assigning sex based on gender identity is dire,” Dr Adkins testified in a US court. “It is counter to medical science to use chromosomes, hormones, internal reproductive organs, external genitalia, or secondary sex characteristics to override gender identity for purposes of classifying someone as male or female. Gender identity does and should control when there is a need to classify an individual as a particular sex.”
Transgender people’s rights and existence are recognised under Australian law, and psychological associations worldwide, including the Australian Psychological Society, oppose any form of mental health practice that does not affirm transgender people. The APS argues that “no robust empirical findings demonstrat[e] therapeutic success in directing transgender people to live as the gender normatively expected of the sex they were assigned at birth”, while “a growing body of empirical research has demonstrated that affirming clinical responses can make a significant positive contribution to the mental health of transgender people”). Scientific journals such as Scientific American, Science Daily, and Nature also argue that gender identity is a biological fact.
However, other authorities are sceptical, including psychologist, neuroscientist, and sexologist Dr Debra W. Soh; biologists Dr Colin Wright and Dr Emma Hilton; neurologist Dr Stephen Gliske; psychologist and gender dysphoria authority Dr Kenneth Zucker; and clinical social worker and Jungian analyst Lisa Marchiano.
Guidelines on transgender inclusion
The 2013 SDA amendments were introduced to stop discrimination on the basis of sexual orientation, gender identity, and intersex status. Gender identity, the SDA states, “means the gender‑related identity, appearance or mannerisms or other gender‑related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth”.
As a result, the Guidelines state it is unlawful to discriminate on the basis of sex or gender identity in sport, unless the different treatment amounts to a ‘special measure’ (‘positive discrimination’ or affirmative action), or an exemption applies (for biological differences in sporting competitions).
The Guidelines recommend that “sport should be based on a person’s affirmed gender identity and not the sex they were assigned at birth, to the fullest extent possible”.
Senator Chandler considers that ruling at odds with the function of women’s sport and the intention of the sporting exemption.
A sporting organisation refusing to allow a transgender or gender-diverse person to participate in the competitions it runs, or to join the club it operates, is discrimination and unlawful, the Guidelines state. (When the Guidelines were published, the Australian Human Rights Commission noted that transgender and diverse people were “sometimes excluded from the sports they loved because of their sex or gender identity”, or experienced discrimination and sexual harassment.)
Clubs can discriminate on the grounds of sex – but not gender identity; for instance, if club membership is only available to women.
However, the SDA contains a permanent exemption in relation to “competitive sporting activity” (the “single-sex competition” exemption): it is not discrimination to exclude someone from participation in any competitive sporting activity in which strength, stamina, or physique is relevant. The exemption recognises that “biological differences between men and women are relevant to competitive sporting activities,” the Guidelines state.
But Senator Chandler believes the application of the exemption is uncertain, unwieldy, and unworkable. The Guidelines, she said, suggest seven steps organisations should take before seeking to exclude males from women’s sporting events, including consulting the national sporting organisation and player association, and allowing the individual to seek a review of a decision to exclude them.
“The process outlined by the AHRC and Sport Australia to utilise the current single-sex sporting exemption is incredibly onerous, expensive, and impractical for sports, local clubs, and associations to follow,” Senator Chandler told Canberra Daily.
“With thousands of community sports clubs around Australia struggling for funding, equipment, and resources, it is ludicrous for sports to have to spend scarce funds on lawyers and doctors in order to ask a male not to play in a female competition.”
