Key Points
- The Australian Institute of Sport (AIS) released guidelines on transgender and gender diverse inclusion in elite sports
- They suggest a more individualised approach than the broad bans restricting trans-women in some sports
- The AIS recommends sporting bodies use evidence and data to prove an athlete has a disproportionate advantage
Sport is often regarded as an integral part of the Australian way of life.
So when sporting bodies began placing blanket bans on trans women competing in their elite levels, it not only crushed the hopes of some aspiring athletes but made some trans and gender diverse people feel ostracised, according to trans woman and former national athlete, Kirsti Miller.
That’s why guidelines released by the Australian Institute of Sport (AIS) last week, which focus on inclusion as the starting point for high-performance sports in the country, have been welcomed by people like Ms Miller and those at Equality Australia.
International Rugby League cited "unnecessary welfare, legal and reputational risk" for its decision to ban transgender women from competing in international events last year preventing male-to-female athletes from competing in Rugby League Women's World Cup in England. Source: Getty / Alex Dodd - CameraSport
The Australian Sports Commission, which oversees the AIS, is communicating the guidelines to sporting organisations who may use it to inform their policies.
AIS guidelines focus on inclusion
Anna Brown, CEO of Equality Australia, said the guidelines encouraged sporting bodies to begin from a position of inclusion with restriction of players having to be justified on a case-by-case basis.
These guidelines follow the 2019 release of those covering community-level sport.
Ms Brown said the new guidelines made a clear case for trans inclusion in sports at all levels in the country.
The guidelines state, "Eligibility rules should be minimally restrictive," and outline that any policies must be "objective".
The AIS document gives an example in which if a sporting body was to create eligibility rules, the criteria must be objective "such as participant's height, weight, or age, such rules may sufficiently address all relevant considerations without discriminatory concerns arising at all".
Ryan Storr, a researcher at Swinburne University in the Sport Innovation Research Group and co-founded Proud to Play, an LGBTIQ+ sports charity which he remains a patron for, described the guidelines as a “step in the right direction".
He praised the focus on inclusion.
“I think Australia has an opportunity to be on the right side of history and to lead the globe in these conversations around very much evidence-driven conversations around the inclusion of trans athletes,” Mr Storr said.
The guidelines have been informed by the International Olympic Committee's position taken in 2021, which placed human rights at its centre.
Advocate for trans athletes welcomes guidelines
In the 1980s, Ms Miller, then known as Warren Miller, competed as a man in the modern pentathlon, consisting of swimming, running, horse riding, fencing and pistol shooting, and in the aquathlon, a combined running and swimming event.
Ms Miller, who transitioned in 2000, welcomed the guidelines and said while they were for elite athletes, having a precedent set at the highest level of sport in Australia would have a positive impact on the wider trans and gender diverse community.
Kirsti Miller, who was named Warren until she transitioned, was a competitive swimmer in her younger days and, after transitioning, enjoyed playing as part of community-level women's sporting teams. Source: Supplied
She said she has seen the recent conversations and blanket bans on trans athletes having a negative impact on trans people.
"So I know they are very happy to hear about the AIS guidelines," she said.
Blanket bans and exemptions
Several international sporting federations have banned trans women who were assigned male at birth, from playing their sports. Some of these bans have been implemented on a national level in Australia.
In March, on transgender women competing in female categories, a ban Athletics Australia said it would have to respect and abide by in its elite competitions.
It came after announcements of similar restrictions in other sports.
World Athletics announced a ban on transgender women competing in female categories, a ban Athletics Australia said it would have to respect. Source: Getty / SVEN NACKSTRAND/AFP
"If strength, stamina and physique make someone have a disproportionate advantage, then you can legally exclude people, so they use that clause to do it," he said.
But Mr Storr said these guidelines could potentially hold organisations who rely on this exemption to higher account.
"Now, if you do that, you need to have the evidence you can't just say X, Y and Z, you need to have a legal argument and evidence and data to show you can exclude someone for that reason," he said.
The guidelines state that when a sporting organisation seeks to introduce eligibility rules, "it should consider what objective measures of strength, stamina, and physique are relevant in its particular high-performance context" and use relevant data to illustrate any disparities that could constitute an advantage.
Mr Storr said precedents on eligibility may be set or tested if challenged in court.
Ms Miller said she understood why the exemption to the Discrimination Act existed.
"If you can prove that an individual athlete has got either a strength or speed endurance or physique unfair disparity, by all means, I support that,” she said.
The complexities of gender and sports
Mr Storr, who is currently working with Tennis Australia on its gender inclusion policy, said different sports could take different positions on eligibility to participate but may still comply with the AIS guidelines.
"When we get more evidence and when sports do a bit more of a deeper dive, we'll understand how each sport defines athletic performance and how they define advantages," he said.
"So then, when trans athletes do want to be included in the sense of maybe putting an application in to play in the women's category, that there's clear criteria that would identify if an athlete did have an unfair advantage."
Mr Storr added there was currently a lack of specific research that had been carried out to consider the real impact of gender diversity in sports.
"At times, unfortunately the science underpinning a ban, unfortunately, is completely flawed," he said.
"For example, in the World Rugby ban, they use evidence around and results to suggest banning transgender women because of safety fears, etc.
"But the sample they used, that didn't include any trans women, they just had men versus women, physiologically, that's not scientifically correct, because transgender women and especially those who've undergone certain affirmations are not cis-gender men their physiology is different."
Mr Storr said he imagined more specific detail would likely be included in future updates of the AIS guidelines as organisations and the general public began to have a better understanding of the complexities of the matter.
"It's a very, very complex topic, and I think, as we move on through the years to come, more research and evidence and things will come to life in terms of moving it forward," he said.
Mr Storr said policies around gender diversity often focused on trans women, and most required a person to have spent at least one or two years suppressing their testosterone levels.
He said by that point, a trans woman would usually have lost muscle and gained fat, and some evidence suggested they may have reduced strength, stamina and physique.
