In 2015 the Commission published a report based on consultations with lesbian, gay, bisexual, transgender and intersex (LGBTI) communities.⁷ Those surveyed raised concerns about the lack of participation of transgender and gender diverse people in sport.⁸

Sporting organisations have identified the need for national guidance on how they can be inclusive of transgender and gender diverse people, and the operation of relevant anti-discrimination laws, while also protecting the health and safety of all players.

In addressing any concerns about player health, safety and wellbeing, sporting organisations should have regard to the relevant laws, rules, regulations, policies and practices for their sport. It should
be noted however that these do not displace the obligations that sporting organisations have under the Act.

The Commission acknowledges that terminology can have an impact on a person’s identity, wellbeing and inherent dignity. Using appropriate terminology respects individuality and enhances the visibility
of transgender and gender diverse people in the community.

The Commission recognises that terminology in this area is evolving and contested. The following section provides general guidance on relevant terminology. An understanding of these terms can help prevent discrimination and create an inclusive environment.

Please note that when the terms ‘man’ and ‘woman’ or ‘trans man’ and ‘trans woman’ are used in these Guidelines, the discussion is also generally applicable to boys, girls and trans children respectively.

‘Gender identity’ is defined in the Act as ‘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’.¹¹

For example, a person’s birth certificate may include a marker which indicates that the person’s designated sex is female when that person identifies as a man (in other words, their gender identity is that of a man).

‘Gender diverse’ is an umbrella term that includes all the different ways gender can be experienced and perceived. It can include people questioning their gender, those who identify as trans/ transgender, genderqueer, non-binary, gender non- conforming and many more.¹²

‘Intersex status’ is a protected attribute under the Act. Under the Act ‘intersex status’ means the status of having physical, hormonal or genetic features that are:

• neither wholly female nor wholly male
• a combination of female and male, or
• neither female nor male.¹³

These Guidelines do not specifically address people born with variations in sex characteristics (intersex variations).

The term ‘intersex’ does not describe a person’s gender identity (man, woman, neither or both).
A person born with a variation in sex characteristics may identify as a man, woman, neither or both.

‘LGBTQI’ (or variations of it) is an acronym for lesbian, gay, bisexual, transgender, queer/ questioning and intersex. It is used to refer collectively to these communities. The ‘LGB’ refers to sexuality/sexual identity; the ‘T’ refers to gender identity; and the ‘I’ refers to people who have an intersex variation. ‘Q’ can refer to either gender identity or sexuality.

‘Non-binary’ is a term used to describe a person who does not identify exclusively as either a man or a woman.

‘Pronouns’ are a grammatical means of referring to a person or persons. Conventional pronouns are ‘she/her/hers’ and ‘he/him/his’. Some people prefer to use gender neutral pronouns, such as ‘they/ them/their’. The pronoun a person uses to describe themselves generally reflects their gender identity.

‘Sex’ refers to a person’s biological sex or sex characteristics. These may be genetic, hormonal, or anatomical.¹⁴

Unlike ‘gender identity’, ‘sex’ is not defined in the Act.

‘Sporting organisations’ include, but are not limited to, clubs, associations, national sporting organisations, state sporting organisations, and any organisation that is involved in the management or operation of sport.

‘Transgender’ (commonly abbreviated to ‘trans’) is a general term used to describe a person whose gender identity is different from the sex they were assigned at birth. Being transgender is about how an individual describes their own gender. It is not necessarily about their biological characteristics.

A person whose birth certificate originally described them as female, who now identifies as a man, may use the labels ‘trans’, ‘trans man’ or ‘man’. Similarly, a person originally described on their birth certificate as male, who now identifies as a woman, may use the label ‘trans’, ‘trans woman’ or ‘woman’.¹⁵

‘Transition’ or affirmation refers to the social, medical or legal steps that a transgender person takes to affirm their gender identity.

A transition or affirmation may or may not involve medical treatment, including surgeries or hormone therapy. People can transition as children or as adults. Each transition is different.

Under the Act, discrimination on the basis of sex or gender identity can include both direct and indirect discrimination.

‘Direct discrimination’ occurs when a person is treated less favourably than another person on the ground of:

• sex or gender identity, or a characteristic generally associated with a person of that sex or gender identity in circumstances that are the same or not materially different.¹⁶

An example of direct discrimination would be a sporting organisation refusing a trans woman’s application for membership because she is transgender.

‘Indirect discrimination’ can be less obvious. Indirect discrimination occurs when a condition, requirement or practice that applies to everyone, disadvantages persons of a particular sex or gender identity, and the condition, requirement or practice is not reasonable in the circumstances.¹⁷

An example of indirect discrimination might be a sporting organisation requiring a birth certificate upon registration, and not accepting any alternative form of documentation to verify a person’s gender. This may disadvantage transgender and non-binary players if their birth certificate does not align with their gender identity. If reasonableness could not be established, the sporting organisation might be at risk of a successful discrimination claim.

(a) Overview

The Act makes discrimination unlawful in particular areas of public life.

Unless an exemption applies or the different treatment amounts to a special measure, it is unlawful to discriminate on the basis of sex or gender identity, including in relation to:

• the provision of goods, services and facilities¹⁹
• club membership and benefits, for members and applicants for membership.²⁰

It is also unlawful to request information from a person for the purpose of discriminating against them.²¹

Sport usually involves the provision of ‘goods, services and facilities’ and—where the definition of ‘club’ is met—the provision of club membership and benefits. Participation in sport may also involve requests for information.

Discrimination in the context of sport may arise if a sporting organisation refuses to allow a transgender or gender diverse person:

• to participate in the competitions it runs, or
• to join the club it operates.

Further details on these provisions are outlined in sections 4.2(b) to (d).

Discrimination on the basis of sex or gender identity in sport will be permitted under the Act if:

• the different treatment amounts to a ‘special measure’, or
• an exemption applies.

(a) Special measures

Special measures are positive actions used to promote equality for disadvantaged groups. They are often referred to as ‘positive discrimination’ or ‘affirmative action’, and address the unequal position of two groups of people (for example, women and men) by implementing a practice which favours the disadvantaged group.

The Act allows for a special measure to be taken for the purpose of achieving substantive equality between women and men, and people of different gender identities.³²

While the Act does not define ‘substantive equality’, the Federal Court has held that ‘substantive equality’ means equality in substance, rather than ‘formal’ equality.³³ Equality in substance recognises that, for disadvantaged groups, formal equality before the law—or treating everyone the same—is not always sufficient to eliminate the effects of historical discrimination, and may actually entrench existing discrimination. Positive actions that confer an extra benefit on members of a disadvantaged group may be required to attain ‘real’ or substantive equality.

Depending on the circumstances, taking steps to encourage the participation of transgender and gender diverse people in sport may constitute a special measure under the Act. If a sporting organisation wants to adopt a ‘special measure’, it will need to determine that the action it is taking is for the purpose of achieving substantive equality between women and men, or people of different gender identities. Examples of potential special measures are set out below.

The Commission does not have the power to certify special measures under the Act, nor does any
other body. Instead, a sporting organisation should satisfy itself that a proposed measure constitutes a special measure. Even if a sporting organisation has determined that an action it has taken is a ‘special measure,’ this action could still be the subject of

a complaint to the Commission by someone who disagrees with the organisation’s characterisation of its actions as a special measure. Section 7 includes further information about the Commission’s complaints process.

The Commission has published guidelines on special measures under the Act, which provide detailed guidance to assist individuals and organisations to assess their own equity initiatives for consistency with the Act.34

(b) Exemptions

The Act provides for both temporary and permanent exemptions from the operation of the anti-discrimination provisions of the Act.35 An exemption makes certain conduct lawful under the Act and prevents a person from successfully claiming that an action is unlawful discrimination.

A sporting organisation must apply to the Commission to obtain a temporary exemption.
A sporting organisation does not need to apply to the Commission to rely on a permanent exemption.

If a sporting organisation wishes to rely on a permanent exemption it will need to make its own assessment that the exemption applies.

Relying on an exemption is not mandatory. Sporting organisations may choose to comply with the core anti-discrimination provisions of the Act even when it is possible to rely on an exemption.

(i) Permanent exemption—voluntary body

Under the Act it is permissible for a ‘voluntary body’ to discriminate against a member or a person seeking to become a member on the basis of the person’s sex or gender identity, as well as in the provision of benefits, facilities or services to members.³⁶

Some sporting organisations will be ‘voluntary bodies’ under the Act. For example, a small local soccer association that operates on a not-for-profit basis may be a ‘voluntary body’. If a sporting organisation meets the definition of a ‘club’, it cannot be a ‘voluntary body’.

(ii) Permanent exemption—club

Under the Act there are particular circumstances where it is permissible for a club to discriminate on the basis of sex (although not on the basis of gender identity) in relation to club membership and benefits:

• if the membership of the club is only available to persons of a different sex,⁴⁰ or
• if it is not practicable for both men and women⁴¹ to use or enjoy the benefit at the same time or to the same extent and either:
  • men and women are provided with the same benefit (or an equivalent benefit) separately, or
  • they are entitled to a ‘fair and reasonable’ proportion of the use and enjoyment of the benefit.⁴²

The use and enjoyment of a benefit for both women and men at the same time, or to the same extent, will likely only be treated as ‘not practicable’ if it creates a situation of practical difficulty. A mere social preference (in other words, men not wanting to play a sport with women or vice versa) is unlikely to meet the criteria.

When deciding whether it is ‘practicable’ for men and women to use or enjoy the benefit at the same time or to the same extent, the following factors will be considered:

• the purpose for which the club is established
• the membership of the club, including any class or type of membership
• the nature of the benefits provided by the club
• the opportunities for the use and enjoyment of those benefits by men and women, and
• any other relevant circumstances.⁴³

(iii) Permanent exemption—competitive sporting activity

The Act contains a permanent exemption in relation to ‘competitive sporting activity’.⁴⁴ 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’.⁴⁵

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.⁴⁶ This interpretation was approved by the Federal Court of Australia⁴⁷ 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’⁴⁸ 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’⁵⁰
• sporting activities by children who are younger than 12 years of age.⁵¹

(iv) Temporary exemption

A sporting organisation may apply to the Commission for a temporary exemption. Given the permanent exemptions that already exist in the Act, the Commission grants temporary exemptions sparingly. The Commission has published guidelines about how it assesses applications for temporary exemptions under the Act.⁵²

Temporary exemptions can be granted:

• subject to certain terms and conditions, and
• for a period of up to five years.⁵³

If a temporary exemption is granted, it will not be possible for a successful complaint to be brought in relation to the circumstances covered by the exemption.

Sexual harassment is unlawful under the Act in certain areas of public life, including in the provision or receipt of goods, services and facilities.⁵⁴ It is also unlawful for a member of the management committee of a club to sexually harass a member, or applicant for membership, of the club.⁵⁵

‘Sexual harassment’ is defined in the Act as an unwelcome:

• sexual advance
• request for sexual favours, or
• conduct of a sexual nature,

in circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.⁵⁶

The sex and gender identity of the person who is harassed are relevant circumstances to be taken into account in determining if a person has been sexually harassed.⁵⁷

Sexual harassment can be physical, spoken or written, and may include comments online or in social media. It may include a range of unwelcome behaviours including:

• requests for sex
• intrusive comments about someone’s private life
• sexually suggestive behaviour, such as leering or staring
• sexually suggestive comments or jokes
• repeated requests to go out
• sexually explicit messages.⁵⁸

Sexual harassment can also include sexually suggestive or invasive questions, such as asking a transgender or gender diverse person about their sex life, or asking them about their physical characteristics.

Victimisation is an offence under the Act⁵⁹ and the Commission can also inquire into complaints of victimisation. A person will be taken to have victimised another person if they threaten to, or do, subject that person to a detriment because they have either made a complaint under the Act, or have engaged with the Commission’s complaints process in some other way (for example, as a witness in proceedings).⁶⁰

This applies to complaints of discrimination and sexual harassment.⁶¹

Legal responsibility—often described as liability— determines who has to pay compensation or take other actions because of a finding of unlawful discrimination or sexual harassment.

Discrimination

Both an individual or an organisation who discriminates against an individual, and a person who aids or permits the unlawful discrimination, can be held liable under the Act.⁶²

It is also important to note that a sporting organisation can be vicariously liable for the actions of their employees or agents where these amount to unlawful discrimination, or an unlawful request for information.⁶³

Sexual harassment and victimisation

The person who sexually harasses or victimises another person is liable for their own actions.

An employer may also be liable where an employee, acting in connection with their employment, sexually harasses another person. An employer will not be liable if it is established that the employer took all reasonable steps to prevent the sexual harassment.⁶⁴

In addition to the provisions of the Act, as the federal anti-discrimination law, sporting organisations also have legal obligations under state and territory anti-discrimination legislation. These Guidelines do not cover the obligations that sporting organisations have under state and territory legislation.

The Act does not exclude the operation of state and territory anti-discrimination legislation that is capable of operating alongside the Act.⁶⁵ This means that state and territory anti-discrimination legislation might impose different, or stricter, obligations.

A person is not entitled to make a complaint to the Commission in relation to unlawful discrimination if they have already:

• made a complaint
• instituted a proceeding, or
• taken any other action,

in relation to the same act or omission under the law of a state or territory which deals with the same matter.⁶⁶

Both the Victorian Equal Opportunity and Human Rights Commission and the Australian Capital Territory Human Rights Commission have also produced guidelines on the inclusion of transgender and gender diverse people in sport.⁶⁷

See section 7 for the contact details of the state and territory human rights commissions.

In addition to the federal Act, and state and territory anti-discrimination legislation, other areas of law are also relevant to the inclusion of transgender and gender diverse people in sport.

(a) International sporting regulations

International federations and other international sporting bodies, such as the International Olympic Committee, have their own regulations that govern gender-based eligibility.

Some international regulations require athletes who wish to compete in the female category of a sport to have testosterone levels below a certain measurement. For example, the International Olympic Committee’s statement from its 2015 Consensus Meeting on Sex Reassignment and Hyperandrogenism, requires an individual who wishes to compete in the female category to have a total serum testosterone level below 10 nanomoles/L for at least 12 months prior to their first competition in that category.⁶⁸ This level must be maintained for the duration of the competition period.

When Australian-based sporting organisations develop their own policies, they will likely consider the regulations that are in place for international competitions. Any eligibility policy that is developed will need to comply with the Act.

(b) Privacy law

Sporting organisations should protect the privacy of players. This is particularly important when dealing with any personal or sensitive information that the organisation may hold regarding a person’s gender identity, or transition or affirmation process.

When developing information and record- keeping systems, and considering the use and any disclosure of the personal information held by the organisation, the sporting organisation should consider the provisions of the Privacy Act 1988 (Cth), the 13 Australian Privacy Principles (APPs), and the relevant legislation and regulations of the states and territories.

Further information is available from the Office of the Australian Information Commissioner at www.oaic.gov.au/privacy-law.

(c) Anti-doping laws

Anti-doping laws may be relevant to transgender and gender diverse people who are accessing hormone therapy as part of their transition or affirmation. Usually this will only be relevant in elite-level competitions and even then only in very limited circumstances.

When developing policies and procedures in relation to drug testing and anti-doping laws, organisations will need to consider the Australian Sports Anti-Doping Authority Act 2006 (Cth), the Australian Sports Anti-Doping Regulations 2006 (Cth), and the associated National Anti-Doping Scheme.⁶⁹

These anti-doping laws allow athletes to obtain permission to use prescribed substances for therapeutic purposes. This publication does not consider these laws and processes.

Further information is available from the Australian Sports Anti-Doping Authority at www.asada.gov. au.

Transgender and gender diverse individuals are often excluded from participating in sport because their affirmed gender—which may be different from their legally assigned sex—is not recognised within the policies, structures and organisation of sport.

To ensure that sports are inclusive of transgender and gender diverse people, it is essential that those who lead sporting organisations (the Board, Management Committee, and executive):

• are committed to the inclusion of transgender and gender diverse people (for example, have made a written commitment through their governance processes)
• take active steps to educate players, coaches, staff, volunteers and members about this commitment (for example, by providing training, and including this information in induction packs). Sporting organisations should also consider enlisting support from prominent players, parents and coaches in the form of ‘champions’. A champion for transgender and gender diverse inclusion could be a strong ally or someone with lived experience.

To maximise inclusion, sporting organisations should have a policy that specifically promotes the inclusion of transgender and gender diverse people. This could be a stand-alone policy or included within an existing policy.

Inclusion policies, particularly when publicly available, can:

• help a transgender or gender diverse person identify a sporting organisation that will welcome them
• encourage a transgender or gender diverse player to remain engaged in sport throughout their transition or affirmation
• provide guidance to staff and volunteers at a sporting organisation on how to include transgender and gender diverse participants and respond appropriately to any issues that may arise.

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’.⁷⁹ In these circumstances a sporting organisation may seek to rely on the ‘competitive sporting activity’ exemption in the Act.⁸⁰

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.

Everyone has the right to live free from violence and harassment.85 This includes the right to enjoy sport in a harassment-free environment.

Some transgender and gender diverse individuals experience harassment when they participate in sport.⁸⁶

Sporting organisations need to pay close attention to the needs of transgender and gender diverse children in order to ensure that they are not subjected to violence and harassment.⁸⁷

Sporting organisations can address this by:

• implementing codes of conduct which stipulate a zero-tolerance policy for harassment and the consequences of any breach
• raising awareness through education and training programs for their staff, players, officials, volunteers and spectators
• reviewing existing codes of conduct to ensure that the harassment of transgender and gender diverse individuals is specifically addressed.

Codes of conduct should apply to:

• coaches
• umpires and other officials
• staff and administrators
• spectators
• players
• volunteers.

A code of conduct should include a commitment to creating a harassment-free environment and an inclusive culture within the sport. It should also outline how the organisation will allocate roles and responsibilities to support this.

A spectator code of conduct should be developed and displayed at venues where training and competition take place. It should clearly communicate to spectators that the sport has a zero-tolerance policy for harassment and outline how harassment by spectators will be dealt with.

Education and training programs should support organisations to:

• raise awareness about harassment
• provide tools to recognise harassment
• develop skills to address harassment.

All players should be able to play in a uniform in which they feel comfortable.

While a uniform is an important part of sport, particularly team sports, players should be provided with an appropriate range of uniform styles and sizes. Schools are beginning to take this approach in relation to school uniforms.⁸⁸

Transgender and gender diverse people may face additional difficulty participating in sport if there are no appropriate facilities.

While many transgender and gender diverse people prefer to use bathrooms, showers and changerooms that align with their affirmed gender, there is also a strong preference for privacy. This is the case for many people, regardless of their sex or gender identity. People who identify as non- binary may prefer to use unisex or gender-neutral facilities.

Transgender and gender diverse people have also reported experiencing harassment or violence while accessing bathrooms.⁸⁹ Such experiences emphasise the need to provide inclusive facilities.

Sporting organisations can make their existing facilities more inclusive by utilising the principles of universal design such as:

• changing the signage on some of the facilities to unisex/gender neutral to provide an option for non-binary people
• modifying changerooms and bathrooms to create private spaces (for example, taller doors, room dividers, shower curtains)
• ensuring that all changerooms have sanitary bins.

These universal design suggestions can make facilities welcoming and inclusive of everyone.

When new facilities are built, or existing facilities are being upgraded, there is an opportunity to make these inclusive by:

• creating private spaces so that people can change, shower and use the toilet safely and comfortably
• providing a gender-neutral space where possible, without co-opting accessible toilets or family rooms.

Sporting organisations that are in the process of, or considering, changing facilities also have an opportunity to seek out facilities that are inclusively designed.

Sporting organisations could also consider working with local schools, local governments and other community-sport infrastructure providers to access facilities which have been designed to be inclusive.⁹⁰

Concerns about providing personal information can prevent transgender and gender diverse people from engaging in sport. Personal information should only be collected with a player’s consent, and in the case of children, with parental consent.

Sporting organisations can address this by implementing structures and safeguards regarding the collection and use of personal information, particularly where it relates to name and gender (for example, password-protected databases).

See section 4.9(b) for an overview of privacy law.

Registering to participate in a sport generally requires an individual to provide personal information. This information might include a birth certificate or driver’s licence to verify age, name, or gender.

The collection of personal information by sporting organisations can create additional difficulties for transgender and gender diverse people because of:

• differences between a person’s affirmed gender and the sex or gender recorded on their identity documents⁹¹
• differences between a person’s preferred name and their name as it appears on their identity documents
• the structure of registration forms in relation to gender categories and titles (for example, Miss/Ms/Mrs/Mr and M/F).

Sporting organisations can ensure that their processes are inclusive, minimise potential discrimination and protect the privacy of transgender and gender diverse people by:

• only requesting personal information and legal documents when necessary for a legitimate aim of the organisation
• accepting legal declarations to verify name, age and gender (for example, a statutory declaration) in place of identity documents such as a passport or birth certificate that have a sex/gender marker that is inconsistent with a player’s gender identity
• providing the option of selecting a non- binary gender identity and a gender non- specific title on registration forms⁹²
• providing ‘preferred name’ and ‘pronoun’ options on registration forms
• securely storing personal information, in line with standards prescribed by privacy legislation
• not disclosing the transgender or gender diverse status of a player without their express permission
• ensuring that correct names and pronouns are used in conversations, databases, documents and correspondence.⁹³

As outlined in section 4.2(d), sporting organisations should also be aware that, depending on the circumstances, requesting additional information from transgender and gender diverse people may be unlawful.

The checklist below is designed to help sporting organisations, their staff and volunteers, to identify practical steps that they can take to promote the inclusion of transgender and gender diverse people in sport. The steps can be considered by sporting organisations in the order which best fits their needs.

Australian Human Rights Commission

National Information Service
The Commission’s National Information Service provides information and referrals
for individuals, organisations and employers about a range of human rights and
discrimination issues.

Phone 1300 656 419 or (02) 9284 9888 to access this service.

Complaints process
The Commission can also investigate complaints about discrimination and other
human rights breaches. The complaints process is simple, free and flexible. For
further information on the complaints process please visit the Commission’s
website.

Sport Australia

Sport Australia promotes and supports the development of a cohesive national
sport sector that creates opportunities for all Australians to participate and excel in
sport and physical activity.

National sporting organisations (NSO) recognised by Sport Australia are required to
have a Member Protection Policy or equivalent.

The Sport Australia Member Protection Policy template was developed to assist
NSOs to write their own sport-specific member protection policy. It is one of several
steps to address issues of harassment, discrimination and child protection within an
organisation.

Play by the Rules

Play by the Rules is a website that contains information, resources, tools and free
online training for sports clubs and participants about discrimination, harassment,
child safety, inclusion and integrity issues in sport.

Templates for Member Protection Policies and Codes of Conduct are available on the
Play by the Rules website.

Pride in Sport

Pride in Sport is Australia’s first and only sporting inclusion program specifically
designed to assist national and state sporting organisations and clubs with the
inclusion of Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) employees,
players, volunteers and spectators through education, training, governance
development, resources and membership opportunities.

Proud2Play

Proud2Play is a registered charity which promotes the participation and inclusion
of LGBTI+ people in all levels of sport, and provides support to sports organisations
with the creation of policies and education programs.

Minus18

Minus18 is Australia’s organisation for lesbian, gay, bisexual, transgender, intersex
and queer (LGBTIQ) youth. Minus18 creates safe events, resources, workshops and
volunteer opportunities for LGBTIQ youth.

State and territory human rights commissions

Links to the websites of each of the state and territory human rights commissions or
agencies can be found on the Commission’s website.

In addition to these Guidelines, the Commission can provide assistance in the form
of diversity and inclusion training, workshops and educational resources. For more
information please contact us by sending an email to training@humanrights.gov.au.

1. United Nations Educational, Scientific and Cultural Organization, International Charter of Physical Education, Physical Activity and Sport (21 November 1978) art 1; Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948) art 24; International Olympic Committee, Olympic Charter (entered into force 9 October 2018) 11.
2. Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948) art 1.
3. The members of the Coalition of Major Professional and Participation Sports (COMPPS) are the Australian Football League, Rugby Australia, Cricket Australia, Football Federation Australia, the National Rugby League, Netball Australia, and Tennis Australia.
4. Department of Health, ‘Sport 2030: Participation, Performance, Integrity, Industry’ (2018) 21 <https://www.ausport.gov.au/nationalsportplan/home/second_row_content/have_a_say2/Sport_2030_-_National_Sport_Plan_-_2018.pdf>.
5. All of the quotes included in the Guidelines are from consultation participants.
6. Caroline Symons et al, 'The Impact of Homophobic Bullying during Sport and Physical Education Participation on Same-Sex-Attracted and Gender-Diverse You Australians' Depression and Anxiety Levels ("The Equal Play Study")' (March 2014) <https://www.beyondblue.org.au/docs/default-source/research-project-files/bw0236.pdf?sfvrsn=2>.
7. Australian Human Rights Commission, ‘Resilient individuals: Sexual Orientation, Gender Identity & Intersex Rights’ (National Consultation Report, 2015) <https://www.humanrights.gov.au/our-work/sexual-orientation-gender-identity-intersex-status/publications/resilient-individuals>.
8. Australian Human Rights Commission, ‘Resilient individuals: Sexual Orientation, Gender Identity & Intersex Rights’ (National Consultation Report, 2015) 21 <https://www.humanrights.gov.au/our-work/sexual-orientation-gender-identity-intersex-status/publications/resilient-individuals>.
9. Sex Discrimination Act 1984 (Cth) s 48(ga).
10. See section 4.8 for further information about state and territory anti-discrimination legislation.
11. Sex Discrimination Act 1984 (Cth) s 4(1) (definition of ‘gender identity’).
12. The definition used is based on the definition in Queerspace (Drummond Street Services), Working with Gender Diverse Young People and their Families (26 April 2017) 5 <https://aifs.gov.au/cfca/2017/04/26/join-conversation-working-gender-diverse-young-people-and-their-families>.
13. Sex Discrimination Act 1984 (Cth) s 4(1) (definition of ‘intersex status’).
14. Chris Sidoti and Jack Byrne, ‘Promoting and Protecting Human Rights in relation to Sexual Orientation. Gender Identity and Sex Characteristics: A Manual for National Human Rights Institutions’ (Report, Asia Pacific Forum, June 2016) 13 <http://www.asiapacificforum.net/resources/manual-sogi-and-sex-charactersitics/>.
15. For further guidance see Victorian Government, Inclusive Language Guide (11 August 2016) <https://www.vic.gov.au/equality/inclusive-language-guide.html>.
16. Sex Discrimination Act 1984 (Cth) ss 5(1), 5B(1).
17. Sex Discrimination Act 1984 (Cth) ss 5(2), 5B(2), 7B.
18. Sex Discrimination Act 1984 (Cth) s 7B(2).
19. Sex Discrimination Act 1984 (Cth) s 22(1).
20. Sex Discrimination Act 1984 (Cth) s 25.
21. Sex Discrimination Act 1984 (Cth) s 27.
22. Sex Discrimination Act 1984 (Cth) s 4(1) (definition of ‘club’).
23. Sex Discrimination Act 1984 (Cth) s 22(1)(a).
24. Sex Discrimination Act 1984 (Cth) s 22(1)(b).
25. Sex Discrimination Act 1984 (Cth) s 22(1)(c).
26. Sex Discrimination Act 1984 (Cth) ss 25(1), 25(2).
27. Sex Discrimination Act 1984 (Cth) s 22.
28. Sex Discrimination Act 1984 (Cth) s 25(1).
29. Sex Discrimination Act 1984 (Cth) s 25(2).
30. Sex Discrimination Act 1984 (Cth) s 27(1).
31. Sex Discrimination Act 1984 (Cth) s 27(2).
32. Sex Discrimination Act 1984 (Cth) s 7D(1).
33. Jacomb v Australian Municipal Clerical and Services Union (2004) FCR 149, 168.
34. Australian Human Rights Commission, Guidelines: Special measures under the Sex Discrimination Act 1984 (Cth) (Guidelines, November 2018) <https://www.humanrights.gov.au/our-work/sex-discrimination/publications/guidelines-special-measures-under-sex-discrimination-act >.
35. Sex Discrimination Act 1984 (Cth) s 44. A temporary exemption is not available in relation to the Act’s sexual harassment or victimisation provisions.
36. Sex Discrimination Act 1984 (Cth) s 39.
37. Sex Discrimination Act 1984 (Cth) s 4(1) (definition of ‘voluntary body’).
38. Sex Discrimination Act 1984 (Cth) s 4(1) (definition of ‘voluntary body’).
39. Sex Discrimination Act 1984 (Cth) s 4(1) (definition of ‘registered organisation’).
40. Sex Discrimination Act 1984 (Cth) s 25(3).
41. The words ’women’ and ‘men’ are used in the Act. However, in the context of this provision they should be understood in terms of sex.
42. Sex Discrimination Act 1984 (Cth) s 25(4).
43. Sex Discrimination Act 1984 (Cth) s 25(5).
44. Sex Discrimination Act 1984 (Cth) s 42.
45. Sex Discrimination Act 1984 (Cth) s 42(1).
46. Taylor and others v Moorabbin Saints Junior Football League and another [2004] VCAT 158 (17 February 2004) [19]–[20].
47. Ferneley v Boxing Authority of New South Wales (2001) 115 FCR 306, 323–324.
48. Explanatory Memorandum, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 (Cth) 6.
49. Explanatory Memorandum, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 (Cth) 6.
50. The Act allows for sporting activities to be prescribed by Parliament as exempt. There are currently no prescribed activities.
51. Sex Discrimination Act 1984 (Cth) s 42(2).
52. Australian Human Rights Commission, Temporary exemptions under the Sex Discrimination Act 1984 (Cth): Commission Guidelines (2009) <https://www.humanrights.gov.au/temporary-exemptions-under-sex-discrimination-act-1984-cth>.
53. Sex Discrimination Act 1984 (Cth) s 44(3).
54. Sex Discrimination Act 1984 (Cth) ss 28G, 28K.
55. Sex Discrimination Act 1984 (Cth) s 28K.
56. Sex Discrimination Act 1984 (Cth) s 28A.
57. Sex Discrimination Act 1984 (Cth) s 28A(1A).
58. Victorian Equal Opportunity and Human Rights Commission, Guideline: Trans and gender diverse inclusion in sport—complying with the Equal Opportunity Act 2010 (May 2017) 14–15 <https://www.humanrightscommission.vic.gov.au/home/our-resources-and-publications/eoa-practice-guidelines/item/1560-guideline-trans-and-gender-diverse-inclusion-in-sport-complying-with-the-equal-opportunity-act-2010>.
59. Sex Discrimination Act 1984 (Cth) s 94.
60. Sex Discrimination Act 1984 (Cth) s 94(2).
61. Sex Discrimination Act 1984 (Cth) s 94(2)(g).
62. Sex Discrimination Act 1984 (Cth) s 105.
63. Sex Discrimination Act 1984 (Cth) s 106.
64. Sex Discrimination Act 1984 (Cth) s 106.
65. Sex Discrimination Act 1984 (Cth) s 10(3).
66. Sex Discrimination Act 1984 (Cth) s 10(4).
67. Victorian Equal Opportunity and Human Rights Commission, Guideline: Trans and gender diverse inclusion in sport—complying with the Equal Opportunity Act 2010 (May 2017) <https://www.humanrightscommission.vic.gov.au/home/our-resources-and-publications/eoa-practice-guidelines/item/1560-guideline-trans-and-gender-diverse-inclusion-in-sport-complying-with-the-equal-opportunity-act-2010>; and Australian Capital Territory Human Rights Commission, Everyone Can Play: Guidelines for Local Clubs on Best Practice Inclusion of Transgender and Intersex Participants (April 2017) <http://hrc.act.gov.au/everyone-can-play-guidelines-local-clubs-best-practice-inclusion-transgender-intersex-participants/>.
68. International Olympic Committee, ‘IOC Consensus Meeting on Sex Reassignment and Hyperandrogenism’ (Meeting Summary, November 2015) 2.
69. Australian Sports Anti-Doping Authority Regulations 2006 (Cth) sch 1.
70. Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948) art 1.
71. United Nations Educational, Scientific and Cultural Organization, International Charter of Physical Education, Physical Activity and Sport (21 November 1978) art 1; Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948) art 24; International Olympic Committee, International Olympic Committee, Olympic Charter (entered into force 9 October 2018) 11.
72. Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948) arts 2 and 3. In a recent resolution the Human Rights Council (UN Doc A/HRC/40/L.10/Rev.1) specifically called for the elimination of discrimination against women and girls in sports. The resolution references rules and practices in place regarding differences of sex development, androgen sensitivity and testosterone levels. As part of the resolution the Council has requested that the United Nations High Commissioner for Human Rights prepare a report on the intersection of race and gender discrimination in sport to be delivered during the Council's 44th session, due to be held in June 2020.
73. Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948) art 12.
74. This is the starting point for inclusion, supported by the Sex Discrimination Act 1984 (Cth) prohibitions on discrimination against people on the basis of sex and gender identity.
75. Particular care should be taken when collecting personal information from children. Parental consent should be obtained for any personal information relating to children.
76. These responsibilities could be added to an already established role, such as the Member Protection Information Officer.
77. The template Member Protection Policy incorporates a complaints process.
78. Further details about how organisations can develop child-focused complaints policies are provided in the National Principles for Child Safe Organisations (Principle 6) <https://www.humanrights.gov.au/national-principles-child-safe-organisations>.
79. Explanatory Memorandum, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 (Cth) 6.
80. Sex Discrimination Act 1984 (Cth) s 42.
81. Bethany Alice Jones et al, ‘Sport and Transgender People: A Systematic Review of the Literature Relating to Sport Participation and Competitive Sport Policies’ (2017) 47 Sports Medicine 701, 713–714; Joanna Harper, ‘Race Times for Transgender Athletes’ (2015) 6(1) Journal of Sporting Cultures and Identities 1, 2.
82. David J Handelsman et al, ‘Circulating Testosterone as the Hormonal Basis of Sex Differences in Athletic Performance’ (2018) 39(5) Endocrine Reviews 803, 806.
83. David J Handelsman et al, ‘Circulating Testosterone as the Hormonal Basis of Sex Differences in Athletic Performance’ (2018) 39(5) Endocrine Reviews 803, 811–819; Joanna Harper, ‘Race Times for Transgender Athletes’ (2015) 6(1) Journal of Sporting Cultures and Identities 1, 6; Dutee Chand v Athletics Federation of India (AFI) & The International Association of Athletics Federations (IAAF) (Interim Arbitral Award) (Court of Arbitration for Sport, Case No 2014/A/3759, 24 July 2015) 53–54 [186], 59 [205].
84. These may include factors such as training, genetics, nutrition, ‘hardiness’, and access to resources. Dutee Chand v Athletics Federation of India (AFI) & The International Association of Athletics Federations (IAAF) (Interim Arbitral Award) (Court of Arbitration for Sport, Case No 2014/A/3759, 24 July 2015) 154 [532]; Ross Tucker and Malcolm Collins, ‘What makes champions? A review of the relative contribution of genes and training to sporting success’ (2012) 46 British Journal of Sports Medicine 555, 560; Michael Sheard and Jim Goldby, ‘Personality hardiness differentiates elite-level sport performers’ (2010) 8(2) International Journal of Sport and Exercise Psychology 160,166.
85. Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948) art 3.
86. Australian Human Rights Commission, ‘Resilient individuals: Sexual Orientation, Gender Identity & Intersex Rights’ (National Consultation Report, 2015) 21 <https://www.humanrights.gov.au/our-work/sexual-orientation-gender-identity-intersex-status/publications/resilient-individuals>.
87. The Royal Commission into Institutional Responses to Child Sexual Abuse found that transgender and gender diverse children can experience heightened vulnerability in an organisational context. Commonwealth, ‘Royal Commission into Institutional Responses to Child Sexual Abuse’ (Final Report–Vol 6, 2017) 170 <https://www.childabuseroyalcommission.gov.au/making-institutions-child-safe>.
88. NSW Department of Education, School Uniform Policy, PD/2004/0025/V02 (23 July 2018) <https://education.nsw.gov.au/policy-library/policies/school-uniform-policy>.
89. Jody L Herman, ‘Gendered Restrooms and Minority Stress: The Public Regulation of Gender and its Impact on Transgender People’s Lives’ (2013) 19(1) Journal of Public Management & Social Policy 65.
90. Department of Health, ‘Sport 2030: Participation, Performance, Integrity, Industry’ (2018) 26 <https://www.sportaus.gov.au/nationalsportplan/home/featured/download/Sport_2030_-_National_Sport_Plan_-_2018.pdf>.
91. Changing identification documents can be costly, confusing and time-consuming.
92. Section 43A(1) of the Sex Discrimination Act 1984 (Cth) provides that it is not unlawful to request information in a way that does not allow for a person to identify as being neither male nor female. Section 43A(2) of the Act provides that it is not unlawful to make or keep records in a way that does not provide for a person to be identified as being neither male nor female.
93. Victorian Equal Opportunity and Human Rights Commission, Guideline: Trans and gender diverse inclusion in sport—complying with the Equal Opportunity Act 2010 (May 2017) 18 <https://www.humanrightscommission.vic.gov.au/home/our-resources-and-publications/eoa-practice-guidelines/item/1560-guideline-trans-and-gender-diverse-inclusion-in-sport-complying-with-the-equal-opportunity-act-2010>.
94. Births, Deaths and Marriages Registration Act 1995 (NSW) s 32B.