April 9, 2018

Sports Law | QLD

In October 2017, the Australian Football League (AFL) ruled that Hannah Mouncey, a transgender female, was ineligible to be selected for the 2018 AFL Women’s (AFLW) draft.

The decision gained significant national attention and reignited discussion on diversity and inclusion in Australian sport, particularly for women.

The public and media heavily criticised the AFL for its decision, leading to greater calls for transparency in AFL decision-making processes and, for some, called into question the AFL’s position on diversity and inclusion. The decision also sparked discussion in the legal community, highlighting two critical issues sporting organisations need to consider:

  1. The impact of national anti-discrimination laws on decision-making processes; and
  2. The necessity of internal policies, strategies and guidelines to help sporting organisations with the control of discrimination issues.

Anti-Discrimination Law

In Australia, it is unlawful to discriminate against someone with a “protected attribute”, including a person’s sexuality, gender identity and intersex status. Sporting clubs are not excused from this rule.

Under the Sex Discrimination Act 1984 (Cth), licensed sporting clubs cannot discriminate in deciding who is allowed to be a member, membership terms and conditions and an individual’s access to club facilities on the basis of an individual’s gender identity or intersex status.

There is, however, an exception to anti-discrimination legislation that applies exclusively to sports.

Specifically, people 12 years of age or older can be excluded from a competitive sporting activity if the restriction is considered reasonable, having regard to the strength, stamina or physique requirements of the activity.

The AFL appears to have relied on this exemption in ruling Hannah Mouncey ineligible for the 2018 AFLW draft. In a statement, the AFL stated that it made its decision after “carefully consider[ing] all of the information provided by Hannah, as well as the available data on transgender strength, stamina, physique along with the specific nature of the AFLW competition”.

The AFL also noted that it was “guided by the Victorian Equal Opportunity and Human Rights Commission’s guidelines 'Trans and gender diverse inclusion in sport – complying with the Equal Opportunity Act 2010’. The policy states that the skill and competition level of the relevant sport should be carefully considered when deciding whether it is appropriate to use the exemption. To this point, the AFL stated that it “took into account the stage of maturity of the AFLW competition, its current player cohort and Ms Mouncey's circumstances".

The legislation regarding anti-discrimination in Australia varies slightly from state to state. Sporting clubs should understand the application of the anti-discrimination law in their state or territory to safeguard against unlawful discrimination.

The AFL sought legal advice in the process of determining the exclusion of Hannah Mouncey from the draft and other sporting organisations should follow its lead in similar situations.

Internal Policies

It is critical for sporting organisations to develop and implement internal policies and regulations that comply with anti-discrimination legislation at both a state and federal level.

Getting ahead of the game and implementing effective policies now will ensure that there are transparent internal processes for the organisation to follow should an issue of discrimination, including participation of transgender athletes, arise. This will ensure that clubs can clearly and transparently explain how they reached certain decisions and safeguard themselves against potential damage to their reputation.

The AFL has a National Vilification and Discrimination Policy. The Policy does not, however, explicitly address the participation of transgender persons in the AFLW. Following the AFL’s decision regarding Hannah Mouncey, the AFL Players Association called for greater clarity and transparency about the participation of transgender players in the AFLW. "While Hannah was provided with the opportunity to discuss her application with the AFL, the AFLPA believes there should have been clear guidelines available for transgender players wishing to enter the AFLW draft this year”. 

What’s next for Hannah Mouncey?

While Hannah Mouncey was not allowed to participate in the 2018 National League, on 13 February 2018 the AFL ruled that Hannah would be allowed to play in the state and territory women’s leagues in 2018. In a statement, the AFL said it was developing a more comprehensive policy on the participation of Trans and gender diverse athletes in its games. The AFL hasn’t ruled out the possibility that Hannah may be eligible to play in the 2019 AFLW draft. 

How can we help?

Regardless of the size of the club, it is crucial that sporting organisations are proactive in developing internal policies, regulations and guidelines to help with the governance of discrimination issues. We can provide advice to sporting organisations on their obligations under the relevant anti-discrimination law and assist in developing internal policies which comply with these requirements.