Why back the Save Women’s Sport Bill?

The response from political leaders

Australia’s previous Prime Minister and the new Prime Minister have given their public endorsement for sex-differentiated sport, reflecting the strong undercurrent of public sport for Claire Chandler and Katherine Deves’ ‘Save Women’s Sport’ Bill.

Prior to winning the 2022 election, Prime Minister Anthony Albanese indicated that ‘girls should be able to play sport against girls and boys should be able to play sport against boys‘. 

The former Prime Minister Scott Morrison agreed, ‘my preference is for girls to play girls, for women to play women, boys to play boys, men to play men‘, going on to say that ‘I don’t think this is a terribly remarkable statement. I think it’s common sense‘.

Party leaders have been on the front foot on the issue, because the public is squarely in favour of fair competition for women.

Political journalist Chris Uhlmann wrote in the Sydney Morning Herald that “the media campaign against Deves is being received very badly” and a Labor strategist admitted to him that, in the suburbs and the regions, “its 90/10 in Deves’ favour”.

The Opposition Leader is also reported to have ‘argued the Sex Discrimination Act already “covered” the issue, with section 42 clarifying that it was not discriminatory to exclude people from competitive sport on the grounds of “sex, gender identity or intersex status” where the strength, stamina or physique of competitors was relevant‘, reflecting the claims of the LGBTQI activists and supporters.

The reality

However, the reality is very different to that suggested by the Opposition Leader, the Victorian Premier and MPs and Senators on both sides of politics.

The exemption in section 42 of the Sex Discrimination Act does not apply in relation to sport involving those under 12, and only applies for those 12 years and older in ‘competitive sporting activity in which the strength, stamina or physique of competitors is relevant‘. 

Whether an activity is a ‘competitive sporting activity in which the strength, stamina or physique of competitors is relevant’ of course being subject to resolution finally by Courts or Tribunals in the event of a complaint. 

In seeking to understand how this might be interpreted most people would turn to statutory bodies like the Queensland Human Rights Commission (QHRC). 

The QHRC guidance, while speaking directly in relation to the Queensland legislation, mirrors the Commonwealth law in the relevant aspects.

According to the QHRC, the situation is very clear.  They state in a very black and white manner that “children of any gender may participate in any sport they choose” in relation to children under 12 and “under Queensland laws [which mirror Commonwealth legislation] students cannot be excluded from school sport on the basis of their gender identity” for 12 years and older – the later being very conditionally qualified “For competitive sporting activities” where “the restriction is reasonable having regard to the strength, stamina or physique requirements of the activity“.

The blanket statement regarding under 12-year-olds is not strictly correct as any policy of offering sex-based sporting activities may still be considered reasonable, and thus not unlawful as indirect discrimination.  This applies to 12-year-olds and over as well, with what is reasonable being determined not merely ‘having regard to the strength, stamina or physique requirements of the activity’.

Even more problematic is the statement by the QHRC, said in a definitive manner, that “intra-school sport (i.e. sports played with other students of the school, such as PE lessons or athletics carnivals) would not be considered competitive” and thus outside the scope of any exemption for competitive sport.  This flies in the face of these activities often being the selection process for representative selection – and thus very much competitive!

In short – the QHRC’s simplistic approach hides the complexities that sports administrators have to deal with – and is the complete opposite view to that expressed by the Prime Minister and Opposition Leader.  

The need for a solution

In the face of such ‘authoritative’ advice from a government statutory agency:

  • How are PE teachers and sports administrators expected to read the minds of a future court or tribunal about what is ‘reasonable’ in the light of this confusion?
  • Which PE teacher or administrator will have the courage to back their professional judgement about reasonableness having seen the ferocious public attacks on politicians and women’s advocates suggesting the need for great clarity?

While the Sex Discrimination Act provisions may have been sufficient in 1984, in the face of the unrelenting activism seeking to bully and harass those seeking to protect women and girls, it seems clear that legislative clarity, such as provided in Senator Chandler’s bill are required.  This bill does not stop any sporting body from adopting ‘inclusive’ policies, it merely ensures that single sex sport can be provided by a school or sporting association without the threat of litigation.

MPs, on both sides, who indicate that the Sex Discrimination Act deals with this sufficiently, ensuring that ‘girls should be able to play sport against girls and boys should be able to play sport against boys’ are clearly poorly briefed and misinformed.

To be very clear, these concerns do not apply to the very small number of people with differences/disorder of sexual development, to use the medical terminology, or ‘intersex status’ to use the most common legal terminology. This is also not suggesting that all girls will necessarily be drawn to stereotypical ‘girls’ sports’ (or other activities) or vice versa for boys.

Decisions on specific care for young people is best done by their parents and those present with them every day, such at teachers in a school.

The ValuEd Voices team supports Senator Chandler’s bill because it provides clarity and support for women and girls, and we think mums and dads across Australia can see that and will ignore the shrill claims of a small number of activists.

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