Aussie Rules? It's a Girls' Game

By Herbert Smith Freehills

In May 2003, a junior Australian Rules football league in the Melbourne suburbs banned a 13-year-old footballer from playing in its competition. Not for punching an opponent, or match-fixing, or testing positive for Nandrolone. But simply because the player, Helen Taylor, is a girl. In February 2004, Miss Taylor challenged that ban in the Victorian Civil and Administrative Tribunal (VCAT). She won, and the tribunal's decision may have implications for sport across Australia.[1]

Miss Taylor played in the Moorabbin Saints Junior Football League, which was a member of the State governing body, Football Victoria Ltd. Football Victoria had what it called a Female Participation Regulation, which was something of a misnomer because it effectively excluded all girls aged 12 or over from competing alongside boys in Football Victoria's sanctioned competitions. The League, applying the Female Participation Regulation, ordered that Miss Taylor and two other girls (aged 14 and 15, respectively) could no longer play in the boys competitions. The three girls challenged this decision, first before Victoria's Equal Opportunity Commission and then before VCAT, claiming it constituted unlawful discrimination.

Under Victorian State law, it is unlawful to exclude someone from playing a sport on the basis of his or her sex.[2] But there is an exception: if participants are aged 12 or over, they can be excluded from sports where the strength, stamina or physique of competitors is relevant.[3] Justice Stuart Morris, hearing the case in VCAT, had to determine, among others, the following issues:
  • what is meant by strength, stamina or physique being relevant in a competitive sporting activity;

  • whether strength, stamina or physique is relevant in Australian Rules football, and if so, at what age it becomes relevant.[4]
Relevance
The applicable provision in section 66 of the Equal Opportunity Act 1995 (Vic) reads as follows:
    'A person may exclude people of one sex [aged 12 or over] … from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant.'
The language is clearly ambiguous, and the parties disagreed about how it should be construed. The League and Football Victoria argued that the mere use of strength, stamina or physique when participating in a given sport would make such an attribute relevant in that sport, and therefore allow the exclusion of girls aged 12 and over from that sport. Of course, this would catch all sports—you need to use some element of strength, stamina and physique to throw a dart at a board, roll a marble or lift a chess piece. The legislators could not have intended this to apply to all sports, and Justice Morris found that, in this context, mere use of strength, stamina or physique when participating in a sport does not make that attribute relevant in that sport.

The League and Football Victoria argued in the alternative that strength, stamina or physique would be relevant in a given sporting event when one or more of such attributes would have a bearing on the outcome of that event. But, again, the outcome of contests in most if not all sports is determined at least in part by the respective strength, stamina and physique of the competitors, and so the judge also rejected this proposition.

Justice Morris considered an argument made by the three girls that the Victorian legislation only allowed the exclusion of one sex from a sport where the other sex would otherwise be disadvantaged. This so-called 'one way' interpretation would allow boys to be excluded from, say, girls' netball competitions, but not girls to be excluded from boys' football or rugby competitions. But, after an analysis of the legislative history, and despite seeing that such an interpretation would encourage female participation in competitive sport and promote equal opportunity in accordance with the purposes of the legislation, the judge concluded that it was not possible to interpret the words of the statute in this way.

Rather, the judge decided that either sex might be excluded, and that to allow exclusion from a given sport, what has to be relevant is the relative strength, stamina and physique of participants from each sex when competing. More particularly, the judge ruled that exclusion of one sex will be permitted in sports where, if the two sexes were to compete against one another, there would be a disparity between the males' strength, stamina or physique and the females' strength, stamina or physique, and that disparity would be of such a magnitude that it would have an appreciable effect on the ability of one sex to compete with the other, making the competition uneven.[5]

Australian Rules football

Having identified the appropriate test, the judge then had to consider whether in certain age groups, there was a disparity between the strength, stamina and physique of males as against females, and if so whether such disparity had an appreciable effect on the ability of the participants to compete in the sport of Australian Rules football. Evidence was heard from experts in human movement, safety science and exercise sciences.

The judge considered survey data collected from over 70,000 Australian children, in particular the figures showing, at certain ages, the average weight of boys as against the average weight of girls.[6] As one might expect, the figures for average weight revealed a disparity between girls and boys from a certain age. The judge accepted evidence that lean body mass is a better indicator of strength, stamina and physique than merely weight,[7] and adjusted the data before him to determine at what age the average lean body mass of girls departed from that of boys. He found that before the age of 13 the average lean body mass of girls is similar to (in fact slightly higher than) that of boys; that at the age of 13 the boys' average becomes greater than the girls'; and that the disparity between the boys' average and the girls' average grows from the age of 13 onwards throughout the remaining childhood years.

So far so good. The judge had taken an indicator of strength, stamina and physique (lean body mass) and identified a growing disparity between the girls' and boys' average figures. He then had to decide at what age the disparity becomes of such a magnitude that it has an appreciable effect on the ability of the girls to compete with the boys at Australian Rules football. Of course, it is difficult to determine objectively the impact of strength, stamina and physique in a given sport, and as a result, the analysis in the case became less scientific at this point. The judge found that strength, stamina and physique were all attributes that are important in determining the success of a player and a team in Australian Rules football. He also noted that success in that sport is also influenced by other attributes, such as skill, courage and dedication (and he might have added others like speed, vision, selflessness, injury-resistance and even luck).

The judge determined that the disparity between boys' and girls' average lean body masses becomes of such a magnitude that it has an appreciable effect on the ability of girls to compete with boys at Australian Rules football at the age of around 14-and-a-half (because at that age the difference between the average male figure and the average female figure becomes greater than one standard deviation of the male figure). But it is not easy to see why that should be so. While it is clear that one standard deviation is a good indicator of there being a disparity between the sexes (it effectively means that at the age of 14-and-a-half, over 80 per cent of boys have a lean body mass that is greater than the 'average' girl), what is not clear is why that particular degree of disparity was regarded as having an appreciable effect on the ability of girls to compete with boys in this particular sport.

In any event, the judge concluded that the disparity between the strength, stamina and physique of males as against females in Australian Rules football is not sufficiently significant (in that it does not have an appreciable effect on the ability of the participants to compete) in the under-14 age group,[8] but that the disparity is sufficiently significant in the under-15 age group. So, it had been unlawful for the League to exclude Miss Taylor from playing in the under-14 competition. However, it had been lawful for the League to exclude the other two girls from the under-15 competition (but even so, the judge urged Football Victoria not to exclude girls from the under-15 competition but, rather, to give girls the choice of whether or not to participate).

Well-meaning discrimination is still discrimination

One interesting side-issue in the case concerned the rationale for the Female Participation Regulation. Evidence was heard that the motives for formulating and applying the regulation were first to protect the safety of the players (presumably the girls), and second to avoid the boys from modifying their playing behaviour when playing alongside or against the girls. Justice Morris was quite scathing about this approach. He considered that there was no evidence that the regulation protected player safety, and that in any event, a female player ought to be allowed to choose to take the risks of playing football with boys who might be bigger, stronger and fitter. He described the approach of Football Victoria and the League in this respect as misguided, misplaced, sexist and belonging in another age. He was equally dismissive of the idea that boys should be discouraged from modifying their behaviour when playing with girls. However, ultimately, this was something of a red-herring since the motive behind a discriminatory practice is irrelevant under Victorian legislation, and so even if Football Victoria had had 'good' intentions the finding would have been the same.[9]

What now for other Australian sports?

The decision is certainly a reminder that all sports governing bodies need to assess whether their respective regulations comply with the applicable equal opportunities legislation. And, as is seen in the table below, the legislation on this issue differs throughout Australia. So the first thing to do is understand which statutory provisions apply.

But then what? If it is the Victorian legislation that applies (or if the applicable statute is materially the same as the Victorian legislation), does this mean a governing body in another sport can simply apply the analysis and statistics from this case? In other words, can a governing body take the average lean body mass figures from this case and exclude girls at the under-15 level in that sport because that is where the disparity between the sexes amounts to one standard deviation? Alas, the answer is probably not.

There is precious little in the judgment to explain why a difference of one standard deviation in the average figures was sufficient to conclude that competition between sexes would be uneven in the sport of Australian Rules football. And this will make it difficult to apply the decision to sports in which strength, stamina and physique influence the ability to compete to a greater or lesser extent than they do in Australian Rules football. One imagines that, while strength, stamina and physique still influence the success of, say, a golfer, tennis player or cricketer, those attributes are less important in those sports than they are in Australian Rules football. And so lean body mass averages should be less relevant in those sports than they are in Australian Rules football. This ought to mean that, in order for the disparities in the boys' and girls' averages to be significant in such sports, those disparities have to be greater than they were in this case. But if that is so, there is no telling how greater. None of which is of much help to a sports governing body trying to do the right thing.



1 Taylor and Others v Moorabbin Saints Junior Football League and Football Victoria Ltd [2004] VCAT 158.
2 Section 65 Equal Opportunity Act 1995 (Vic). The position in the other States and Territories of Australia is set out in the table at the end of the article.
3 Section 66(1) Equal Opportunity Act 1995 (Vic).
4 One additional issue for the judge to decide was whether the League and Football Victoria had to prove that strength, stamina or physique is relevant in Australian Rules football, or whether they merely had to introduce evidence of its relevance, which would have the effect of shifting the burden, forcing the three girls then to prove that strength, stamina and physique were not relevant. The judge determined that the League and Football Victoria had the burden of proving relevance, not merely introducing evidence thereof.
5 In coming to this conclusion, Justice Morris took a purposive approach to the interpretation of section 66 and relied on previous authority on the same issue, in particular the decision of the Victorian Anti-Discrimination Tribunal in Robertson v Australian Ice Hockey Federation [1998] VADT 112.
6 Here the term 'average' is used to describe the mean.
7 Lean body mass is the total weight of the non-fat parts of the body (eg bones, blood, muscle, organs and water).
8 Because of the way age groups are organised (ie to play in the under-14 age group for the 2003 season, a child must not have turned 14 by 1 January 2003), as a season progresses the under-14 age group will include children who have turned 14 as well as those who are still 13.
9 Section 10 Equal Opportunity Act 1995 (Vic).


A note on other Australian jurisdictions

The case of Taylor v Moorabbin Saints is only directly applicable to the sport of Australian Rules football as played in Victoria. How relevant it will be to that sport and other sports in other parts of Australia will depend on the specific legislation applicable in each State or Territory. The starting point should always be whether the practice is a prohibited discrimination under the appropriate legislation. Then one must look to see if an exception applies.

Unlawful discrimination

As seen above, the Victorian statute clearly specifies the exclusion of one sex from a sport as unlawful discrimination. The position elsewhere in Australia is less clear: at federal (Commonwealth) level and in the other Australian States and Territories, there is no specific prohibition on exclusion from a sporting activity. Rather, the relevant legislation prohibits sex discrimination in more general circumstances, eg at work, when providing goods and services, in education and in clubs. However, this ought to be effective as a prima facie prohibition on the exclusion of one sex from sporting activity in some, perhaps even most, circumstances.

Exceptions

All of the Australian jurisdictions have adopted some form of exception, allowing the exclusion of one sex from sporting activity:
  • Western Australia, South Australia, Australian Capital Territory and the Commonwealth use the same formula as Victoria (ie allowing exclusion from a sporting activity in which 'strength, stamina or physique is relevant').
    Having said that, in South Australia and the Australian Capital Territory, the exception is not limited to participants aged 12 and over, and so under-12s could in theory be excluded where strength, stamina or physique of competitors is relevant (although the statistics referred to in Taylor suggest that this will rarely, if ever, be the case). This raises an interesting constitutional question: in certain circumstances, such an exclusion (ie of under-12s) under South Australian or ACT law would arguably be inconsistent with the federal statute (which, as in Victoria, allows such exclusions only for 12 and overs) and therefore may be invalid under the federal constitution.


  • In Queensland and the Northern Territory, a slightly different formula is adopted. It is not unlawful to exclude participants of one sex (aged 12 and over) from a sporting activity where that is 'reasonable having regard to the strength, stamina or physique requirements [sic] of the activity'. The element of reasonableness might more readily allow a 'one-way' interpretation (thus allowing, say, the exclusion of boys from netball but not girls from football).


  • In New South Wales and Tasmania the exception is extremely wide and allows participants of one sex to be excluded in any circumstances (ie whether or not strength, stamina or physique of competitors is relevant), although in Tasmania this is limited to those aged 12 and over. The constitutional issue arises again here. If one sex was excluded from a sport in New South Wales or Tasmania, where such exclusion was not based on the strength, stamina or physique of competitors, while this would be lawful under the local legislation, in certain circumstances, it may be unlawful under the federal statute, and therefore invalid under the constitution.
Legislation citations

Commonwealth: sections 5, 21, 22, 25 and 42(1) Sex Discrimination Act 1984 (Cth)
Western Australia: sections 8, 18, 20, 22 and 35 Equal Opportunity Act 1984 (WA)
South Australia: sections 29, 35, 37, 39 and 48 Equal Opportunity Act 1984 (SA)
New South Wales: sections 24, 31A, 33, 34A and 38 Anti-Discrimination Act 1977 (NSW)
Queensland: sections 7, 38, 39, 46, 94, 95 and 111 Anti-Discrimination Act 1991 (Qld)
Tasmania: sections 16, 22 and 29 Anti-Discrimination Act 1998 (Tas)
Australian Capital Territory: sections 7, 8, 18, 19, 20, 22 and 41(1) Discrimination Act 1991 (ACT)
Northern Territory: sections 19, 20, 29, 41, 46 and 56 Anti-Discrimination Act 1992 (NT).

To view the full text of the case, click here. *This article was first published in the World Law Sports Report


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