Election issue

I am so tired of all this

By Danielle Navarro

April 13, 2022

It is April 13. Day three of the Australian election campaign. Thankfully Australian elections are brief, so this will all be over by May 21 but already I feel burned to a crisp. On the very first day of the campaign, Prime Minister Scott Morrison decided – entirely unprompted – to publicly support legislation to ban transgender women from participating in women’s sports.

This was a choice. Trans rights didn’t need to be an election issue. They should not be an election issue. No transgender person wants this. The Prime Minister of Australia chose to target us. Why?

There are, after all, many bigger issues facing the nation right now. We are in the middle of a pandemic that is still not over. We are at the pointy end of a climate emergency. Wages are stagnant, and are falling in real terms. Housing affordability is a nightmare. Our foreign policy stance with our Asia Pacific neighbours, large and small, is complicated. As a nation, we have still done precious little to respond to the invitation offered by the Uluru statement from the heart.

So why in the everliving fuck is trans women’s participation in sports an election issue, pray tell?

The answer, gentle reader, is bigotry. Plain and simple. This may seem surprising to some, because you might be tempted to wonder if some folks simply have genuine worries about fairness in sport. I can understand why you might think this way, because if you don’t know anything about the current state of Australian law and all you know about this issue is what you’re reading in the media, you could be forgiven for thinking there’s actually a need for legislation.

There isn’t.

In the rest of this post I’ll try to explain why there isn’t, but before I do I want to stress how deeply I don’t want to be writing this fucking thing. I don’t. I’m not an activist. I’m not an advocate. This is not my job. I’m writing this for no reason other than sheer, overwhelming frustration and despair that journalists are not doing their jobs properly. I’m writing it because I have spent the last three days paralysed – metaphorically speaking – unable to work effectively on my own job because I have this bullshit to contend with. I’m writing it so that I can get this out of my head, and get back to writing about things I actually care about like tabular data structures in Apache Arrow and why they’re really cool. I cannot be effective at doing my day job at the moment and I need do to my job. So I am writing this to clear my head.

Okay. Deep breath.

Let’s start where everyone should have started: with the current law. Anti-discrimination protections for transgender people in Australia are covered by the Sex Discrimination Act 1984, or the SDA for short. The SDA contains wide ranging protections. It’s an Act that partly exists to protect women from discrimination, but the scope is broader. This is the described purpose of the legislation:

An Act relating to discrimination on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, potential pregnancy, breastfeeding or family responsibilities, and relating to discrimination involving sexual harassment and discrimination involving harassment on the ground of sex

As you can see, the act is intended to be LGBTIQ friendly. It refers explicitly to sexual orientation (the LGB part of the acronym), gender identity (the T), and intersex status (the I) from the very beginning.

The SDA is carved up into five “Divisions”. Division 1 contains provisions relating to discrimination at work, Division 2 contains provisions relating to discrimination in other areas, Division 3 relates to harassment, Division 4 lists exemptions to the rules, and Division 5 talks about victimisation.

With that as preliminary, let’s think about a simple example.

I’m a trans woman, and I like to run. In real life I prefer to run alone. For me, running is a solo activity, and I don’t want to join clubs or compete against anyone, male or female. To me, competition is not the purpose of running. But suppose I felt differently. Let’s say I wanted to join a women’s running club. I find one in my area that looks great, and I attempt to sign up, and then they tell me that I’m not permitted to join because they don’t allow trans women: it’s a club for cis women only. Superficially, this would appear to be a violation of the SDA, because – as part of Division 2 – Section 25(1) states the following:

25 Clubs

(1) It is unlawful for a club, the committee of management of a club or a member of the committee of management of a club to discriminate against a person who is not a member of the club on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:

(a) by refusing or failing to accept the person’s application for membership; or

(b) in the terms or conditions on which the club is prepared to admit the person to membership.

Aha! Obvious discrimination! Well, maybe not? You see, it’s actually a little tricky. For me to prove discrimination, I’d first need to state something about the grounds on which I’m being discriminated. Is it my gender identity (as a trans woman), my sex (as a male-assigned person), or something else? Lawyers tend to like clarity about such things. It’s especially important in this case because subsection 3 goes on to make clear that same-sex clubs are not outlawed under this section:

(3) Nothing in subsection (1) or (2) renders it unlawful to discriminate against a person on the ground of the person’s sex if membership of the club is available to persons of a different sex only.

In other words, if my biological sex is deemed to be legally male for the purposes of the act, then it is permitted by law for a women’s club to exclude me on the basis of my sex, regardless of what my gender identity is. In the sporting context this will turn out not to be relevant, gentle reader, but I want you to remember this because it will turn out to be very important later. It’s the whole basis for the sleight of hand trickery by which the newly-proposed “sporting” legislation can be used to undermine transgender protections everywhere. But, I digress. Let’s get back to the sporting example…

Angry and hurt at being rejected, I go to a lawyer and ask if I have any recourse against the women’s running club. Very gently they point me to Division 4 of the act, and to section 42, subsection 1 in particular. Here’s what it says:

42 Sport

(1) Nothing in Division 1 or 2 renders it 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 relevant.

This provision exists to enforce precisely the “fairness” concern that people intuitively worry about. Maybe trans women have an unfair advantage? Maybe it’s not okay to let us compete against cis women? Well, if that’s your worry I have good news for you: the law already allows you to exclude us from women’s competitions on exactly this basis. In my example, running is a competitive sporting activity in which the strength, stamina or physique of competitors is relevant, so I have absolutely no legal recourse against the women’s running club that doesn’t want to admit me. Whether they’ve made the right or wrong decision, a kind or a cruel one, is entirely beside the point: the law is unambiguously on their side, not mine.

In other words, if fairness in women’s sport is your concern, there is no need for new legislation because the law already contains exactly the protection you’re asking for. So again we return to the question… if the law already protects women’s sports on fairness grounds what in the everliving fuck is the point of all this?

To answer that question, it helps to look at what the proposed legislation that Mr Morrison supports actually asserts. Because it does a lot more than it says it does, and as far as I can tell journalists have been very lazy and have not pointed this out when they should have. It’s not that no-one has noticed: lawyers have noticed for example. But this hasn’t propagated to the broader public discussion. The proposed legislation is quite short, and the changes it proposes are mostly in relation to Section 42. It would delete the existing Section 42 entirely, and replace it with the following:

(1) Nothing in Division 1 or 2 renders it unlawful to exclude persons of one sex from participation in any sporting activity intended for persons of a different sex.

Note: For the avoidance of doubt, in this Act sex has its ordinary meaning and, without limiting the ordinary meaning, means the chromosomal, gonadal and anatomical characteristics associated with biological sex.

(1A) A person who engages in conduct that is not unlawful because of subsection (1) is acting in accordance with the objects of this Act.

There is a lot packed in to this change.

  • Firstly, it removes all reference to the “strength, stamina or physique of competitors”. The new version of Section 42 has nothing to do with fairness at all. It’s entirely about excluding people on the basis of biological sex and nothing else.

  • Secondly, it removes all references to any possible grounds for discrimination other than biological sex. As regards anything other than sex, it actually weakens the protections for sporting clubs, because it removes the Division 4 exemption with respect to other characteristics.

  • Thirdly, it gives an explicit definition of sex that is scoped to the entire Act. In other words, this one little “Note” purports to govern the meaning of the term “sex” for the entire SDA. It won’t matter what it says on a trans woman’s birth certificate any more: this one little “note” states that for the purposes of the SDA, she is male even if it says female on her birth certificate.

I’m not entirely sure that this last point would hold up in the face of legal challenge, but it’s certainly the stated intent and scope of the note. In fact, that intent is mirrored elsewhere in the proposed legislation, which would also required that the following be included as Subsection 4(1):

man means a member of the male sex irrespective of age.
woman means a member of the female sex irrespective of age.

Noting that the new Section 42 is very clear that male sex has nothing to do with my legal sex (per my birth certificate, which reads female) and everything to do with my XY chromosomes, the combined effect of these provisions is to define me as a man under Australian anti-discrimination law.

Any women’s organisation, whether it be a sporting organisation or otherwise, would be allowed to exclude me because I am, for the purposes of the Sex Discrimination Act, a man. That’s what the Act is attempting to do. It’s doing it by stealth, because most Australians don’t actually want this kind of culture war bullshit in our politics and would prefer it if politicians would fuck off and let trans people live our lives in peace.

I also like to think that even if the legislation passed it would not be as effective as its proponents hope because the rest of the SDA quite consistently asserts that it is not acceptable to discriminate on the basis of gender identity. It’s badly written law as far as I can tell because it creates a tension between the definition of “sex”, “man”, and “woman” and the prohibition of discrimination on the basis of gender identity. The lawyers I’ve known tend to be smart and sensible people, and so I imagine that if it ended up in the courts some attempt would be made to resolve the tension in a sensible way. I don’t think any of this represents a “sky is falling” kind of thing for trans folks even if the proposed law passes.

But nevertheless, it is a bad law. It is a bad law that has very little to do with women’s sports, and a lot to do with bigotry against transgender people.

Posted on:
April 13, 2022
10 minute read, 2085 words
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