Should women compete against men in sports? For sporting clubs, organisations and associations, the answer to this question is not as simple as one may think. The issue of discrimination against women in sport is not always apparent, though it is unlawful. The question of whether females should be able to compete against men or boys has repeatedly come up in the context of sport, although it is just one of many issues that women may face in the context of sport, and it’s not an issue that is likely to go away anytime soon.
The argument for not allowing women to compete alongside or against males, in Australian law, frequently comes down to the concept of taking into account strength, stamina and physique. It takes into account whether the disparity would be enough that it would have a significant effect on the ability of one sex to compete with the other, making the competition uneven. This is the same concept (applied differently) that comes into play in the context of transgender women wanting to compete against cisgender women, an issue that I have previously covered in my earlier insights article: Gender Diversity & Transgender Inclusion In Sports: An Overdue Conversation.
The Strength, Stamina & Physique Argument
While different in each state, the Equal Opportunity Act in Victoria, in relation to sporting competition, says:
“It is unlawful to discriminate on the ground of sex, gender identity or intersex status by excluding persons from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is not relevant.”
It is not always clear whether strength, stamina and/or physique is relevant in a particular sports competition. Take, for example, a sport such as bowling or chess, where the argument of strength, stamina and physique may not be relevant. However, in sports such as AFL it may be relevant. In a sport like powerlifting, strength, stamina and physique would be considered relevant.
So, if a woman was excluded from a chess competition on the basis of her sex, this would be unlawful, however, in the case of a powerlifting competition, this would more than likely be lawful, as strength, stamina and physique are relevant.
But not all sports are so easily categorised.
Discrimination Considerations for Sporting Clubs, Organisations & Associations
Sex discrimination in sport is not always an indication of ignorance or negligence of sporting organisations, and for many decades, it has been widely accepted and normal for females and males to compete separately. In some cases, this is actually important for promoting gender inclusion. For example, the availability of women only competitions may be important to promoting the equality of women. However, organisations, clubs and associations need to look closely at how sex discrimination may inadvertently be present. Below are some instances that highlight just how layered this issue can be in sports.
In 2000, 17-year-old Emily South, from St Kilda Bowling Club, wanted to play bowls at the highest level of competition. This was a Saturday men’s competition, and the Bowls Club agreed that she was sufficiently skilled to play. The overruling organisation, however, refused to register her. Emily took her case further, and won. This is because it was decided that within the context of her sport (bowling), the level of her strength, stamina and physique was not relevant when competing against men. The organisation was then ordered to amend its rules so as not to prohibit women. It was found that she was discriminated against for her sex, because strength, stamina and physique were not “relevant” to the sport of bowling.
While in some sporting competitions like triathlons and powerlifting for example, the argument that there are relevant differences in strength, stamina and physique is undoubtedly true, not all sports can be so easily classified.
Where the Strength, Stamina & Physique Argument may be Ambiguous
In sports like shooting, archery or ten pin bowling, for example, the distinction may not be obvious. Even in golf, it may be hard to determine whether all three elements of strength, stamina and physique should be considered relevant in competition.
In Victoria, and specific to golf, there are guidelines that take into account the specifics of the sport. For example, their stance is that golf has the handicap system, which is designed to balance the disparity in strength, stamina and physique, so they allow women to compete against men.
This is just one example of how each sport has its own unique rules which makes the argument of strength, stamina and physique more complex.
Competition Offerings & Limitations
In a 2004 Ice Hockey case in Victoria, Brook Robertson was excluded from playing ice hockey in the boy’s competition. Importantly, there was no competitive ice hockey competition for girls, with contact, at that time. Had there been an opportunity for Brook to play competitively against other females, this legal case could have been avoided.
A tribunal found that it was discriminatory to exclude Brook from this competition playing in the position of goal keeper, as there was no contact allowed under the rules with the goal keeper. Therefore strength, stamina and physique were not relevant. The tribunal stated that the strength, stamina and physique exception was directed towards:
competitive sporting activities where, if both sexes competed against each other, the competition would be uneven because of the disparity between the strength, stamina or physique of men and women competitors…
While strength, stamina and physique were found to be relevant in contact hockey, the tribunal found that it was not relevant where there was no contact between competitors. As the position of goalkeeper (which was the position that Brook was seeking to play) did not involve contact, the exception was not relevant and it was unlawful to exclude her from the competition as a goalkeeper.
The organisation had to wear the costs of its own legal fees, and a damaged reputation.
Not having a competitive ice hockey competition for females, or opening it up to a mixed competition, was the catalyst for this legal nightmare for the competition organisers. Had they sought legal advice to review their policies, they would have never had to face the volume of issues they ultimately needed to manage.
Also in Victoria, a football competition was found to have discriminated against young female footballers by excluding them from playing at certain levels of junior competition. The tribunal in that case clarified that there are three matters that must be considered when determining whether strength, stamina and physique are relevant:
- the relative differences between the sexes in strength, stamina and physique;
- the nature of the competitive sporting activity; and
- whether the differences between the sexes are significant (in the sense that they matter) in participating in the competitive sporting activity.
The VCAT member had regard to the relative differences between the sexes, and found that for the relative differences between the sexes to be relevant they must have “an appreciable effect on the ability to compete”. In the context of Australian Rules Football, the VCAT member determined that a one standard deviation difference in strength, stamina and physique was acceptable. This led to a finding that up until the age of fourteen, it was unlawful to exclude girls from playing football with boys. After that point, the differences in strength, stamina and physique were sufficiently significant for it to be lawful to discriminate by excluding girls from playing against boys.
In a different sport, the different nature of the competition, might lead to a different answer as to whether or not strength, stamina and physique will have an appreciable effect on the ability to compete. These cases highlight the importance of considering each sport, and each competition (with its specific rules) in its context and in relation to the case law.
Cultural Factors & Implications for Organisations, Clubs & Associations
Some sporting communities are underpinned by a culture that has historically required women and men to compete separately. And, within every sporting environment, there may be subcultures or segments of the community that hold strong views or beliefs about women’s participation in competition.
While it may be hard to challenge the strong views or beliefs within your sporting community, ultimately as decision-makers, your organisation needs to ensure it is complying with the law, or risk facing a raft of legal and financial consequences.
It is imperative for sporting organisations to be offering equal opportunities to both males and females, and where this is not possible or safe, having a lawyer verify this for you in conjunction with a policy that minimises your organisational risk.
The First Steps Towards Minimising Risk
You will already have a number of policies in place. Whether they are sufficient to truly protect your organisation is what must be determined.
Strict and easy to interpret policies are essential. These should detail the structure of any competition, and what men and women’s participation and competition will look like. If there is a difference between what is offered to men and what is offered to women then this may be a cause of concern as there is also an exemption under anti-discrimination law where women and men have the same opportunities to compete.
Genuine inclusivity in sport requires a full buy-in from all stakeholders. This means that policies should be routinely reviewed. However, it is important to note that having a comprehensive and up-to-date policy is not all that is required. If an organisation is found to have insufficiently educated all relevant parties about the details of the policy and what is expected, and discrimination occurs, they remain open to considerable risk.
In the event of a complaint, seeking early legal advice is key. The financial impact of having to deal with the issue of a discrimination matter like this proceeding to court or a tribunal, potentially resulting in having to wear the costs of legal fees, and deal with a damaged reputation, is something that can be avoided.
In terms of your sporting organisation’s position on allowing women to compete against men, it is not always clear whether strength, stamina and physique will be seen as relevant in your sport, in a court or tribunal. This is why it is crucial for sporting organisations to seek advice to ensure that your position is a legally sound decision.
Article by Alexandria Anthony
Related Articles: Gender Diversity & Transgender Inclusion In Sports: An Overdue Conversation
Team Culture In Sports: Creating A Thriving Club Culture
Sporting Organisations: Selection Dispute Risk Management
How Is It Possible That Bullying & Harassment In Sport Persists Today?
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Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought. Please contact Paul Horvath on info@sportslawyer.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.
