Working towards equality and eliminating discrimination in sport

At a recent briefing for major sporting organisations hosted by Lander & Rogers, Kate Jenkins, Victoria's Equal Opportunity & Human Rights Commissioner, stated "treating everyone in the same way doesn’t help you achieve equality."

Jenkins shared her insights on the practical and legal considerations for sporting organisations in Victoria, in meeting their obligations under the Equal Opportunity Act (EOA) and moving towards a more inclusive sporting community.

Jenkins emphasised that it is against the law to treat someone unfavourably because of a characteristic protected by law in sport. However, Jenkins added "sometimes you need to treat people differently to achieve equality."

The EOA includes three exceptions which allow sporting organisations to run single-sex competitions in particular circumstances:

1. Where the strength, stamina or physique of the competitors is relevant to the outcome;
2. If participating in a single-sex competition is necessary to progress to a national or international elite level competition; or
3. If running a single-sex competition will facilitate the participation of people of a particular sex in the sport, and this is a reasonable approach. 

Commenting on the exemptions, Amelia Lynch from Lander & Rogers' Sports Business Group stated "it is important that sporting organisations wishing to rely on an exemption under the EOA, have evidence to show that the discrimination will facilitate participation and is reasonable."

Patrizia Mercuri from Lander & Rogers' Workplace Relations & Safety team agreed, noting that organisations need to be mindful of their obligations under Federal anti-discrimination law as well.

Mercuri added "although there is significant overlap between state and federal anti-discrimination laws in so far as they apply to sport, it is important to make sure that organisations comply with both."

According to Jenkins, one area of complexity occurs in the context of how the law applies to transgender people.

Here Victoria's Equal Opportunity & Human Rights Commissioner explained "there is a myth that transgender people will gain a competitive advantage by participating as their affirmed gender. These false assumptions can lead to discrimination, bullying and exclusion."

To help sporting organisations understand this particular area of the law, the Victorian Equal Opportunity and Human Rights Commission, created the Transgender in Sport Guidelines. The Guidelines are designed for use as a guide for sporting organisations that are unsure about their obligations regarding discrimination against transgender people and how to better comply with their legal obligations.

Mercuri concludes "as lawyers, we often deal with complaints once made.

"Whilst a complaint driven system can achieve results for individuals, it is good to see the work of the Commission in this space, which is aimed at education and facilitating cultural change and which, ultimately, will lead to greater inclusion in sport."

Kate Jenkins was appointed to her role as head of the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) in 2013. Under her leadership, VEORHC has continued to work closely with the sporting community on discrimination and equality issues.

Lander & Rogers 
Lander & Rogers is a leading independent Australian law firm that acts as a principal advisor to many publicly listed and private Australian companies, Australian subsidiaries of global companies, as well as all levels of government.

Lander & Rogers' market-leading Sports Business Group comprises a team of lawyers who are widely recognised as experts in this field. Our clients include international, national and state sporting organisations, professional sporting clubs, government sport and recreation departments and agencies, sport and recreation facility managers and event managers.

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Image courtesy of Sports Without Borders.

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