Claire Chandler (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Last year at Senate estimates I asked Sport Australia, the nation's peak sporting body, if strength, stamina and physique are relevant attributes in rugby union, Australian Rules football, cricket, hockey, tennis, athletics, golf, swimming, basketball and so on. It's not a difficult question. An average year 6 student could tell us that strength, stamina and physique play a role in all of these sports. But our peak sporting body couldn't, or wouldn't, answer that question. After three months, they wrote back and said, 'The nature of individual competitions and teams is a matter for the relevant sporting organisation to determine.' Aside from the fact that it's embarrassing for a sports-mad nation's peak sporting body to apparently not know that strength and stamina are relevant in most sports, why does this matter? It's because of section 42 of the Sex Discrimination Act. Section 42 is sometimes referred to as the 'competitive sports exemption'. In a country which, quite rightly, doesn't permit discrimination on the basis of sex in many aspects of life, this is the provision which makes women's sport legal. Section 42 says, very plainly, that it is not:

… unlawful to discriminate on the ground of sex … by excluding persons from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.

As drafted and as intended, it's a very simple provision. If strength, stamina or physique are relevant to the competitive sporting activity in question, it's perfectly legal to operate a women's sporting competition on the basis of sex. That's something that most major sports had been doing for decades, without ever being told by a court that it's illegal to do so.

Until recently, nobody ever questioned that it's perfectly lawful, not to mention eminently sensible, for sports like rugby, Australian Rules, tennis, athletics and swimming to be able to offer women's sport and to discriminate on the basis of sex when doing so. If the law doesn't allow them to do this, then there would be nothing to stop any male from turning up and competing in women's sport. But suddenly, in 2019, Sport Australia and the Human Rights Commission produced a guideline that told sports and sporting clubs around Australia that they may be in breach of the law if they exclude male people from female sport and should instead operate sport on the basis of gender identity. Sport Australia say that this guideline was requested by the Coalition of Major Professional and Participation Sports, and its purpose was to provide sports with clear guidance about complying with the Sex Discrimination Act.

It does seem more than a little odd that Australia's largest and most wealthy sports, each of which no doubt have access to their own expert legal advisers, suddenly, in 2019, decided that they didn't know if their women's competitions were allowed to operate on the basis of sex. Presumably, there are people within each of these peak sporting bodies who understand that the purpose of women's sport is to provide sporting competition for women, acknowledging that males and females have different physiologies, which lead to different capabilities on the sporting field. It is bizarre that the people who run the AFL and Rugby Australia wouldn't be confident that strength, stamina and physique are relevant to playing their ultraphysical contact sports and therefore could operate on the basis of sex. Frankly, it defies belief that, having been asked to provide clear guidance on this, the best Sport Australia can offer is to say, as they did at the most recent set of Senate estimates, that they have no idea and it's up to the sports to figure that out. The result of this piece of professional ignorance is that, if Sport Australia or Rugby Australia or the AFL admit that strength, stamina and physique are relevant in those sports, they would have to stop telling sporting clubs that they'll get sued if they exclude biological men from women's sport. But they don't want to do that. They've already decided that they'd prefer to receive plaudits from activists for being inclusive than uphold the purpose and integrity of women's sport—to let females play with and against other females. So we're treated to the unedifying spectacle of our peak sporting bodies pretending they don't know if it's helpful to be strong or powerful or tall in their sports. If these sports don't want to let females have their own competitions, then they should have the courage to say so. Don't hide behind a convoluted legal argument to pretend you have no choice. People around Australia see what you're doing, and we won't stand for it.