Discrimination

Sport

Under the Equal Opportunity Act 2010 it is against the law to treat, or propose to treat, someone unfavourably because of a personal characteristic protected by law in sport. It is also against the law to sexually harass someone.

What does sport cover?

Under the Equal Opportunity Act 2010 sport covers playing, coaching, umpiring, refereeing and administering sporting activities.

‘Sporting activities’ under the Act includes a wide range of activities and is not limited to competitive field sports. It also includes activities that may be thought of as recreational rather than purely sporting, and can include games where physical athleticism is not a factor. For example, a sporting activity can include things like chess and debating.

How can discrimination in sport happen?

If behaviour is based on a personal characteristic protected by law, treating you unfavourably might include:

  • refusing to allow you to play sport. For example, because you are HIV positive 
  • refusing to select you in a sporting team. For example, because of your race or religion
  • excluding you from a sporting activity. For example, because you are gay.

Examples of discrimination in sport

Maxine contacts her local sports club to join the weekly basketball tournament and is put in touch with a team needing players. At her second game with the team, Maxine’s girlfriend comes along to cheer her on. Afterwards, the team captain tells Maxine that she doesn’t want a lesbian on the team as it might upset some of the other team members. Maxine may have been discriminated against on the basis of her sexual orientation.

Ashley volunteers as a coach for a junior girls soccer team. When the parents find out that Ashley is male they contact the club and insist he no longer coach the team, as they believe a male should not be coaching an all-girls junior team. The club president tells Ashley that while the club was sorry to lose him, it has no choice but to dismiss him as the coach. Ashley may have been discriminated against on the basis of his sex.

Sexual harassment in sport

Sexual harassment in sport is against the law when it occurs in relation to employment, the provision of goods and services and in clubs. It is important to note that clubs has a special definition under equal opportunity law, so it won’t apply to all sporting clubs.

Sexual harassment is also against the law under the federal Sex Discrimination Act 1984. For more information about the operation of the Sex Discrimination Act and how it might apply to a club or sporting organisation that provides goods and services, you should contact the Australian Human Rights Commission.

Are there any exceptions to the law?

The Equal Opportunity Act 2010 includes some exceptions, which mean that discrimination will not be against the law in particular circumstances.

Positive steps can also be taken to help disadvantaged groups using special measures, which is not discrimination under the law.

If an exception or special measure does not apply, in some circumstances an exemption from the Act may be sought from the Victorian Civil and Administrative Tribunal (VCAT).

The Act also includes specific exceptions in relation to competitive sporting activities.

Under the Act, a ‘competitive sporting activity’ includes any exhibition or demonstration of a sport. This means that exceptions are not just limited to recognised sporting competitions. However, the definition of ‘competitive sporting activities’ under the exception provisions of the Act does not include administrative or supporting aspects of a sporting activity such as coaching, refereeing, umpiring or administration, or non-competitive sporting activities.

Under the Act, you can restrict participation of people with a particular personal characteristic in the following situations. This information is a guide only and is not a full list of exceptions. To avoid doubt about whether an exception might apply, please check the Act or seek further advice.

Activities for people who can effectively compete

Under the Act, participation in a competitive sporting activity can be restricted to those who can effectively compete. This exception allows a person to refuse or fail to select a person in a sporting team, or to exclude a person from participating in a sporting activity based on their merit.

For example, Sally has played with her local club team for three years. Each year, she has been selected to represent the club in the annual club championship competition. In her fourth year, the coach does not select Sally to play in the championship competition because she has a knee injury. While the coach's refusal to let Sally play is because of her disability, this refusal is not against the law because the coach can establish that Sally will not be able to effectively compete.

Activities for people of a specific age or age group

Under the Act, participation in a competitive sporting activity can be restricted to those of a specified age or age group.

For example, Sergio’s son plays in the local under 15’s football team. Sergio, a keen footballer himself, wants to play with his son so he can teach him some new skills, but the coach won’t allow him to. The coach's refusal is not against the law because Sergio is not under 15.  

Activities for people with disability

Under the Act, participation in a competitive sporting activity can be restricted to those with a general or particular disability.

For example, a sporting organisation for people with disability runs a basketball team for people with paraplegia. Tai, who does not have paraplegia, wants to join the team but the organisation refuses. The refusal is not against the law because the sport is being run for the benefit and participation of people with a particular disability.

Activities for people of one sex or gender identity (to allow for strength, stamina or physique)

This exception does not apply to children under the age of 12. Any under 12’s competition must be open to children of any sex or gender identity.

Under the Act, people of one sex or gender identity may be excluded from participating in a competitive sporting activity where the strength, stamina or physique of competitors is relevant to the specific activity.

To determine whether strength, stamina or physique is relevant, and therefore whether the exception applies, a number of factors need to be considered. These might include, to name a few:

  • the relative differences between the sexes in strength, stamina and physique
  • the nature of the sport
  • the nature of the competitive sporting activity (not just the sport, but also the age group of the competitors)
  • the standard of the competition.

For example, an organisation that conducts running competitions organises a 54-kilometre open age marathon state championship. There is one event for women and one event for men. When a man enters the women-only competition, the organisation excludes him. This is not against the law because the organisation is able to establish that the strength, stamina and physique of the competitors in the women’s only event is relevant to the particular competition. 

Activities for people of one sex (to progress to an elite level competition)

This exception does not apply to children under the age of 12. Any under 12s competition must be open to children of any sex.

Under the Act, people of one sex may be excluded from participating in a competitive sporting activity if:

  • participating in the activity is necessary and the only way for a competitor to progress to an elite level competition, and
  • the exclusion will allow participants to progress to national or international elite level competition.

For example, a swimmer must participate in a specific tournament to be selected for the national competition. The ‘necessity’ requirement sets a high threshold. If the threshold is not met, then the exception does not apply.

The exception only applies when it can be shown that excluding a particular sex is necessary to enable participants to progress to the national or international elite level competition. This condition will be met in cases where allowing the excluded sex to participate in the activity would deny the other sex from progressing to that level. Again, the necessity threshold must be met. The exception will not apply if failure to exclude a particular sex only reduces the chance of progression: it must actually deny competitors of the other sex the ability to progress.

For example, a selector for a national men's team selects athletes based on their performance in the state men's team. If the state does not have a men's team, because it does not exclude women, then men would not be able to progress.

Or, for example, the International Olympic Committee rules may require a single-sex competition to be run to enable progression to the international level. 

According to national competition rules, the male and female winners of separate annual club championship competitions each earn the right to represent the state in the national championship competitions. The male and female winners of these competitions then earn the right to represent the nation in international competitions. This is the only way in which a person can be selected to represent the state and the nation. Conducting single-sex club championship competitions is not against the law because participation in that competition and exclusion of the other sex is necessary to enable its participants to progress to the elite level. 

For example, an organisation that conducts archery tournaments has organised an annual club championship competition with one event for women and one event for men.

Activities for people of one sex (to facilitate participation)

This exception does not apply to children under the age of 12. Any under 12s competition must be open to children of any sex.

This is a new exception where, under the Act, people of one sex may be excluded from participating in a competitive sporting activity if:

  • the exclusion or restriction aims to facilitate people of a particular sex to participate in the activity, and
  • the exclusion or restriction is reasonable.

To ensure that the restriction or exclusion is reasonable you must consider:

  • the nature and purpose of the activity. For example, it would be unreasonable for a mixed doubles tennis tournament to exclude men
  • the consequences of the exclusion or restriction for people of the excluded or restricted sex. For example, it would be unreasonable to exclude men if it has the effect of decreasing their participation in the sport
  • whether there are other opportunities for people of the excluded or restricted sex to participate in the activity. For example, if there a number of other mixed competitions available for the excluded sex to participate.

Restriction versus exclusion

This exception distinguishes between people of a particular sex being excluded from participation and being restricted from participation.

For example, lawful restriction of a particular sex from participation might be where priority in team selection is given to women, and where men are only selected where there are not enough women to make up the team.

Lawful exclusion of a particular sex from participation might be where a small sporting club has advertised for a mixed competitive soccer team, but only men have joined up. To attract more female members and to branch out into other soccer tournaments, the club decides to create a women-only team in addition to its mixed team (which has all men). The club’s action aims to encourage women to participate in the soccer competition.

When does restriction or exclusion facilitate participation?

Restriction or exclusion may aim to facilitate participation in a competitive sporting activity by people of a particular sex where, for example:

  • one sex is under-represented in the sport and is more likely to participate if there is a single-sex team, or a restricted team where people of one sex are given priority
  • one sex is not under-represented but people of that sex are more likely to participate if there is a single or restricted gender team (for example, people may feel uncomfortable or intimidated playing in mixed competitions)
  • the participation of one sex would be improved if people could join a single-sex or restricted team because, for example, the manner in which the sport is played changes when a certain proportion of any sex is on the team.

Just because a women-only event is found to be lawful under the exception to facilitate participation, the running of a men-only event does not automatically become lawful. An organisation would need to establish that the exception applies for the men-only competition in its own right, by considering each of the relevant criteria.

For example, a swimming club decides to enter teams in a social water polo competition for teenagers aged 15 to 18 years and wants to encourage girls to get involved. Until this year, the club has had a mixed team but only boys signed up to play. The club decides to start a girls-only team, as there is evidence that more girls will then participate. The club's actions are not against the law because excluding boys from the girls-only water polo team is genuinely intended to facilitate girls’ participation in water polo and is reasonable because of:

  • the nature of the sport – it can be played by boys and girls together or separately
  • the purpose of the activity – in this case, it was a social competition
  • the consequences for the boys of being excluded –  while the boys may lose the social aspect of playing with girls, fewer girls may play in the mixed competition in the short term
  • other opportunities for boys to participate – boys can continue to play in the mixed competition.

For this club, there is no evidence to support the need for a boys-only competition to facilitate their participation in the sport, so the organisation runs a mixed competition and a girls-only competition.

Activities for children under the age of 12 years

Only some of the sporting exceptions apply to children under the age of 12 years.

Under the Act, participation of children under 12 years may be restricted in competitive sporting activities for:

  • people who can effectively compete
  • people of a specified age or age group
  • people with a general or particular disability.

However, participation cannot be restricted to people of one sex in a competitive sporting activity for children under the age of 12 years even if:

  • the strength, stamina or physique of competitors  is relevant to the competitive sporting activity
  • participation in the activity and the exclusion of a sex is necessary for progression to an elite level competition
  • it is intended to facilitate participation in the activity by people of a particular sex and the exclusion is reasonable. 

For example, Eyal is 10 years old and wants to play in his local under 11s club hockey team. He attends trials, but is not selected because he has a disability that affects his ability to play a backhand shot. A complaint was made that the club discriminated against Eyal. The claim was not successful because:

  • the exception that allows restricting participation to people who can effectively compete applies even to sporting activities for children under 12
  • the club is able to establish that it refused to select Eyal to play on the team because he was unable to effectively compete due to his disability.

Or, for example, a local tennis club has an under 9’s girls-only tennis tournament. Flynn, an 8-year-old boy, wants to play in the girls-only tournament but his application is refused because he was not a girl.

A discrimination claim is brought against the tennis club for refusing to let Flynn play in the competition because of his sex. Even though the club is able to establish that having a girls-only competition facilitates the participation of girls of that age in the sport, the claim of discrimination was successful because that exception does not apply to sporting activities for children under 12 years.


 

Make a complaint to the Commission

If you think you have been discriminated againstsexually harassedvictimised or vilified, contact us and talk about your concerns. Our dispute resolution service is free and confidential. We can send you information about the complaint process and if we can’t help you we will try to refer you to someone who can.

To make a complaint:

Find out more about making a complaint.