PROPOSED AMENDMENTS TO THE NSW ANTI-DISCRIMINATION ACT

OVERVIEW OF IMPACTS

OVERVIEW OF PROPOSED AMENDMENT TO SPORT

WHAT IS THE CURRENT LAW IN NSW?

EVIDENCE

RECOMMENDATIONS

QUESTIONS 

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PROPOSED AMENDMENTS TO THE NSW ANTI-DISCRIMINATION ACT

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Sport: Section 38P

Narrows the current sex-based protections in sport, allowing males to self-identify into female sports, compromising fairness and safety to females.

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Educational Institutions: Sections 38K and 46A

Forces private educational institutions to admit transgender individuals, eliminating the ability for all-girls' schools to refuse enrolment of boys identifying as girls, thus compromising the privacy, dignity and safety of female students in bathrooms, dormitories, and changing rooms.

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Variation of Sex Characteristics: Part 3B (Sections 38T to 38ZF)

Introduces protections that prevent discrimination against individuals with variations of sex characteristics, such as people who self-identify as female but are actually male and still retain their male genitalia. Such characteristics have no relevance to the job or service, complicating employment and service provision.

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Sexuality: Section 49ZF

Broadens the definition of "sexuality" to include asexuality, even though this category is unlikely to be grounds for discrimination, since it is defined as a lack of sexual attraction to others, making its inclusion in anti-discrimination legislation absurd and unnecessary.

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Sex Work: Part 4H (Sections 50AA to 50AO)

Prohibits any form of discrimination against sex workers, forcing employers and service providers to accommodate sex workers without considering the potential risks or concerns.

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Forms and Records: Part 9C (Section 122Y)

Mandates that government forms and records include gender identity options, effectively erasing biological sex and complicating the accurate description of individuals.

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OVERVIEW OF IMPACTS

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Women and Girls: Section 38A

Allowing men who identify as women to access women’s shelters, spaces, and services undermines the safety, privacy and dignity of women and girls and removes their right to consent/deny consent to men.

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Woman and Girls in Sport: Section 38P

• Increase in Physical Harm to Females

• Unfair Competition for Females

• Impact on Mental Health and Humiliation

• Females Self-Excluding from Sports

• NSW Failing in its Obligations to Protect Females from Sex Discrimination

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LGB People: Sections 38T to 38ZF

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The focus on broad transgender and sex characteristic rights dilutes the specific sex-based needs and protections of LGB individuals

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Society: Sections 38A, 38B, 38P

Promoting the idea that individuals can change sex based on identity leads to legal confusion and conflict, undermining the consistency of legal and medical records.

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Employers and Government: Sections 38V to 38ZF, 50AC to 50AN, 122Y

Increases litigation risks and administrative burdens due to broad and ambiguous definitions of discrimination and the requirement to redesign forms for unverifiable gender identities.

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Children and Parental Rights: Sections 38K, 49ZO, 50AK

Exposes children to complex and potentially confusing gender issues at a young age, undermining parental rights to guide their children’s understanding of biology and anatomy

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Freedom of Speech: Sections 38ZI, 49ZT, 50AO

Vilification provisions could be used to silence legitimate debate and criticism regarding gender identity and sex work, infringing on free speech.

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Superannuation and Insurance: Sections 49ZF, 49ZG to 49ZT

Including males who identify as females in risk pools designed for biological females drives up the price of insurance premiums, undermining actuarial fairness and long-term financial stability.

 

OVERVIEW OF PROPOSED AMENDMENT TO SPORT: 
Alex Greenwich proposes to narrow the current sex-based protections in sport, allowing males who self-identify as female to participate in the female sporting category.

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IMPACT OVERVIEW

• Increase in Physical Harm to Females: Female athletes face greater risk of injury when competing against males.

• Unfair Competition for Females: Due to the inherent physical advantages of males, females will be forced to participate in an unfair competition.

• Impact on Mental Health and Humiliation: Girls will face substantial distress and a decline in mental health due to the humiliation of being forced to compete against males. This not only forces them into unfair competition but also results in their displacement from their own sport, as males secure victories and positions in teams, thereby hindering female athletes' opportunities for advancement.

• Females Self-Excluding from Sports: Women and girls will opt out of sports to avoid competing against males

• NSW Failing in its Obligations to Protect Females from Sex Discrimination: These changes effectively result in NSW failing to protect women and girls from sex discrimination, protections that are guaranteed under both the Anti-Discrimination Act (NSW) and the Sex Discrimination Act (Cth).

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WHAT IS THE CURRENT LAW IN NSW?
 

Currently, under the NSW Anti-Discrimination Act 1977 (Section 38P):

• A person identifying as transgender may participate in any sporting activity in the category of their natal sex.

• A person identifying as transgender may also participate in mixed-sex teams.

• A person identifying as transgender is never excluded from participating in sport.

 

HOW WILL THE EQUALITY BILL AMENDMENTS CHANGE THE CURRENT POSITION IN NSW?

Under 12 years of age: The Equality Bill proposes that any child from 0-12 years old must be allowed to participate in the sports category with which they self-identify.

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Example: Lachlan, a 10-year-old boy, decides that he now identifies as a girl. Despite being eligible to participate in the boys' category, Lachlan chooses to participate in the girls' category at the school carnival. It will be unlawful for the school to preclude Lachlan from participating in the girls' category at the carnival. Lachlan also signs up for his local soccer and basketball clubs. Despite the leagues having mixed teams and boys' teams, Lachlan decides to join the girls' team. It will be unlawful for the club associations to preclude Lachlan from playing in the girls' team.

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Example 1: Rugby John, a 6’5”, 100kg, 22-year-old male, has recently started self-identifying as a female. John decides to join the local women’s rugby team. If the rugby club excludes John from participating in the women’s team, John may lodge a complaint with the Anti-Discrimination Board (ADB). The onus will be on the club to provide evidence that strength, stamina, or physique are relevant, and that excluding John is reasonable and proportionate under the circumstances. The rugby club might find the financial burden and potential negative publicity too onerous, deciding it is easier and less costly to allow John to play in the women’s team.

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Example 2: Athletics James, a 16-year-old 5’11” male who started running five months ago, decides to compete in the female category of the 100m sprint, despite being eligible for the boys’ competition. James first competes in his school carnival, then at the inter-school competition, knocking out female competitors from progressing. James advances to the state championship of the Under 17’s female 100-metre sprint, places second, and proceeds to nationals to compete in the female category. The athletics organisation would need to prove that strength, stamina, or physique are relevant in the 100-metre sprint to exclude James, if they wish to avoid a complaint being lodged, an investigation by the ADB, and potential litigation in federal court.

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Over 12 years of age: A person over 12 years old must be permitted to participate in competitive sports in the category with which they self-identify. They may only be excluded from their chosen category if:

• The strength, stamina, or physique of a person competing in the competition is relevant.

• The exclusion is reasonable and proportionate in all the circumstances.

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Undue Burden on Sporting Organisations, Clubs and Schools

It will be extremely difficult and costly for sporting organisations to exclude men and boys from the female category. They will need to provide sufficient evidence to prove that strength, stamina, physique, and the principles of reasonableness and proportionality create a disadvantage to females in specific sports and events. Consequently, as is happening already occurring in other jurisdictions, and in NSW where sporting bodies have already changed their policies to the detriment of females, organisations, clubs, and schools are likely to default to allowing men and boys to compete in the female category to avoid legal battles and the financial burden of defending female sports and protecting women and girls.

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Important Considerations

• Men and boys over 12 are already allowed to compete in mixed competitions in addition to the men’s category. The proposed amendments will effectively give them a third category to self-identify into.

• Women and girls are not permitted to "choose" which category they wish to compete in, hence the establishment of the female category.

• The proposed changes disproportionately affect females, as only men and boys seeking to identify into the female category benefit from competing in the female category. This undermines fairness and safety for female athletes and entrenches discrimination against females into law.

• Women and girls deserve fairness at all levels of sport.

• The mental health of women and girls should not be considered secondary to the mental health of males who wish to identify as females.

• For every male identifying as female competing in the female category, a female loses her right and opportunity to compete and to achieve success, and is invariably told to remain silent about the disadvantage suffered.

• The proposed Schedule 1 and Schedule 2 amendments in the Equality Bill also allow males unfettered access to the female changing rooms, bathrooms and showers, pre and post-match. Females will have no recourse to object, effectively forcing them to change and shower in front of males.

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EVIDENCE
 

•  Lostwomensrights.com Self-identification undermines fairness, safety, and privacy in Australian women's sports and single-sex spaces.

• Women's Forum 'A Fair Playing Field' Report Highlights the impact of self-identification on sports and women's rights.

• He Cheated Injury Report: Documents injuries caused by males competing in women's sports. Many injuries by these males go unreported. Some male athletes conceal their sex, leaving female athletes and teams unaware of the elevated risks they are facing. Despite the elevated risk to their personal safety, female athletes face sanctions and expulsion from teams if they boycott, forfeit, or fail to participate in matches which include males in the female category. NSW women and girls report feeling dejected, unsupported, threatened, and intimidated by leagues, associations, and officials for merely seeking to protect their own safety and the integrity of their sporting category.

• Football NSW Complaints: In 2022/2023, approximately 4,000 complaints were reportedly sent to Football NSW regarding safety and fairness concerns for women playing in the NSW league who had been injured by men claiming to be women in the women’s league. Football NSW responded by directing its members, players, and concerned family and friends to visit its policy on inclusion and to participate in further training on diversity and inclusion.

• The Sydney Based Flying Bats football team has permitted five males who identify as females to join the female team, resulting in increased injuries to female players and domination of the competition. This situation has led to serious injuries, unfair advantages, and mental health issues for female players, who are increasingly distressed and demoralised by their circumstances. Female players are being forced into silence and face threats from officials if they raise concerns or choose to forfeit, highlighting the entrenched discrimination such policies impose against women.
   

(Some) Sports in Which Females Are Forced to Accept Males Who Identify as Females Into the Female Category:

• Basketball

• AFL

• Boxing

• Swimming

• Weightlifting

• Tennis

• Volleyball

• Cycling

• Martial Arts

• Rugby

• Soccer

• Athletics

• Hockey

• Cricket

• Netball

• Golf

• Surfing

• Gymnastics

• Handball
   

RECOMMENDATIONS

1. Reinstatement of Sex-Based Definitions and Protections in Sports: Ensure fairness and safety.

2. Clarification of Legal Definitions Related to Sex and Gender Identity: Use consistent, objective, and sex-based criteria.

3. Withdrawal of the Proposed Amendments: Prevent these detrimental changes.

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QUESTIONS

1. Why is Alex Greenwich proposing to make it easier for boys and men who identify as women to compete in the female category, thereby excluding females from their own sports and fair competition?

2. Why is Alex Greenwich advocating for a sporting provision that increases the risk of serious injury or death for women and girls?

3. Why is Alex Greenwich promoting policies that undermine the safety and privacy of women in shelters and other protected spaces?

4. Why is Alex Greenwich promoting amendments that increase insurance premiums for females?

 

 

A RECAP ON WHY THIS MATTERS:

1. Sport is inherently exclusionary:
   Schedule 1 suggests that it is discriminatory for transgender people not to just choose what they want. Sport, by its nature, requires individuals to meet certain standards of skill or ability to participate competitively. Sports is not about personal choice but rather compliance with established rules and standards.
    

2. Transgender exclusion is not discrimination: Not allowing transgender individuals to compete according to their gender identity isn't discrimination because it doesn't deny them access to sport. However, as with the example of the Flying bats with 5 male players, more female teams will simply forfeit. Women’s sports could be irretrievably damaged making female sport non-commercially viable. More girls will self-exclude rather than face the inevitability that they will not win against male bodies. Transgender inclusion equals female exclusion from their own sport. Male exclusion therefore is about maintaining fairness and competitiveness within female sport.
    

3. Safeguarding risks to women's sports: The Flying Bats are a clear case in NSW of the increasing domination of male people in female sport.  The negative impacts of allowing men who identify as women to compete in women's sports, is a physical danger to women. See below for Australian examples where the presence of men identifying as women has led to women self-excluding from competition due to risk of harm and impossibility of winning against male bodies: https://www.lostwomensrights.com/s-s-s
    

4. Scientific evidence and consultation: There has been a lack of consultation and the exclusion of scientific evidence regarding males identifying as women participating in female sports. Policymakers are ignoring the existing evidence, leading essentially to an "evidence-free policy." The science is there, why is the committee ignoring the evidence?
    

5. Global standards and legal implications: Every International sports body is going through the evidence in order to avoid being sued, i.e. Swimming Ruby etc. They are putting in strict guidelines and removing men who identify as women. If we apply completely different inclusion standards, diverging from standards applicable to world games, that can harm Australian sports competitiveness. So why is Australia the exception to the rule?

Overall:
These changes could set a troubling standard where discrimination against women and girls becomes more common, particularly in sports. Women and girls might find themselves less willing to participate in competitive sports, knowing the field isn’t level. This goes against long-standing efforts to ensure equality in sports, potentially erasing progress made toward fairness and equal opportunity.
 

Conclusion:
The proposed changes to the Anti-Discrimination Act could significantly undermine the law's original purpose of preventing discrimination based on unchangeable traits and could harm the rights and safety of women and girls. It's important that any amendments are carefully considered to protect everyone's rights without undermining the protections for women and girls. We strongly urge those reviewing these changes to consider their widespread impact and to ensure they protect the rights of all citizens fairly.

Take Action Now

Write to:
NSW Minister of Sport: Stephen Kamper rockdale@parliament.nsw.gov.au

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NSW Shadow Minister of Sport: Eleni Petinos miranda@parliament.nsw.gov.au

See template letter - CUSTOMISE or tell your personal reasons. Do not just copy and paste, it will be ignored.