Discrimination and Inclusion in Sport

One of the enduring legacies of Australian sport is the perception that every person is entitled to a ‘fair go’. However, sports are not immune to the challenges of discrimination. It is against the law in Australia for someone to be treated unfairly when participating in sport, either as a player or a spectator, because of their race, sex, disability, religion, or sexual orientation. There are exemptions under the law that allow for discriminatory policies, but these are limited. This article looks at discrimination and inclusion in Australian sports, the legal and policy frameworks that are intended to address these issues, and notable case studies.

Federal anti-discrimination laws play a key role in promoting inclusivity in sports. For instance, the Racial Discrimination Act 1975 prohibits racial discrimination in public life, including sporting activities, and the Disability Discrimination Act 1992 promotes equal opportunities for people with disabilities, including access to sporting events and facilities.

Gender inequality

Historically, sport in Australia was a male-dominated pastime. Women faced systemic inequalities and discrimination when they have tried to access sports, especially when they attempted to engage in sports that were seen as “unsuitable” for women. Even today, after more than a century of evidence that Australian women can play competitive sport at an elite level, they still receive unequal pay, lack of media coverage and limited leadership opportunities in sporting organisations. While women’s leagues (such as the AFLW) have grown, there are still clear disparities. For instance, male athletes in comparable leagues consistently receive higher salaries and sponsorship deals, perpetuating financial inequalities. While many claim this is the result of market forces (where less public interest translates to lower financial incentives) this disparity could be addressed through public interest initiatives and even statutory regulation.

In Queensland, the Anti-Discrimination Act 1991 mandates that participation in over 12 competitive sporting activity cannot be restricted to either male or female unless there is a sporting exemption (because the restriction is reasonable given the stamina, strength or physical requirements of the activity). The legislation does allow a general exemption for discrimination on the grounds of “gender identity”, which essentially allows a sport to exclude a transgender player who identifies as a gender other than the gender they were assigned at birth.

However, recent legislative changes in Queensland have significant consequences for intersex athletes in that jurisdiction. The term “intersex” describes a biological variation in sexual characteristics that is different from common binary notions of male and female. In Queensland, the Births, Deaths and Marriages Registration Act 2023 changed the definition of “gender identity” and added a new definition of “sex characteristics”. The flow on effect from this change is that the Anti-Discrimination Act no longer allow organisations in Queensland to restrict intersex athletes from playing competitive sporting activity because of their gender, even if the restriction is reasonable given the stamina, strength or physical requirements of the activity. While discrimination is still legal in relation to transgender athletes, it is now unlawful if extended to athletes who are intersex.  

Perhaps not surprisingly, women have also faced barriers to participation in sports during pregnancy. In 2001, Netball Australia controversially banned pregnant athletes from playing because of the potential legal liability if the player or foetus were injured. Preventing a person from participating in an activity because of their pregnancy is against the provisions of the Sex Discrimination Act 1984. Netball Australia had not applied for an exemption or shown exceptional circumstances to excuse this discriminatory behaviour. An Adelaide Ravens player, Ms Gardner, won a court injunction against Netball Australia allowing her to play for her national netball league while pregnant. She told the Federal Magistrates Court that she had lost payments and sponsorship after being banned from three games. Federal Magistrate Raphael found Netball Australia had unlawfully discriminated against her and ordered the organisation to pay $6,750 in damages. This discrimination case led to federal government guidelines that make it clear that pregnant women must be permitted to play sport if they wish, as banning them would contravene anti-discrimination laws. Today, Netball Australia and other sporting organisations have policies to ensure the safe participation of pregnant women, such as encouraging pregnant women to seek medical advice and advising about risk, but not asking women to take a pregnancy test before participation and not requiring pregnant women to sign a disclaimer unless the requirement applies to all participants.

Racial and ethnic discrimination

Australia has a diverse population, with people from many different cultures, including First Nations people. Athletes from all backgrounds encounter exclusion and racism, which is unlawful in all circumstances. Unlike with gender discrimination, where there is some legal acknowledgement of the inherent biological differences in strength and stamina between men and women, there is no scientific basis by which participation in sport should be based on racial or ethnic identity. Sporting organisations at all levels of competition should take active steps to prevent conscious or unconscious discrimination on this basis.

Disability discrimination

Athletes with disabilities face bias as well as logistical barriers to participation in sport, including inadequate facilities and a society that underestimates their capabilities. Despite Australia’s history of success in events such as the Paralympic Games, community support for athletes with disabilities is still inconsistent, limiting opportunities for participation and development.

Discrimination cases involving athletes with disabilities often revolve around the athlete seeking a reasonable adjustment to enable them to participate. Often such cases are resolved by the discriminatory party making accommodations to provide the disabled athlete with the same access to facilities as able-bodied athletes. For instance, the Australian Human Rights Commission resolved a complaint from a competitive sports shooter with arthritis who complained that he was prevented from using a head rest to enable him to shoot from a prone position. The sporting body had previously not been willing to recognise his shooting in this manner as equivalent to other participants, but ultimately agreed to permit participation and record the results.

Please contact Go To Court Lawyers on 1300 636 846 for advice about discrimination and inclusion in sport.