Discrimination
Law and the Sport...
The act does allow for some exemptions
however. It is not unlawful for a club to discriminate against a
person on the grounds of the person's sex if the discrimination
relates to enjoyment of any benefit provided by the club where it is
not practicable for the benefit to be enjoyed simultaneously or to the
same extent by both men and women and either the same or equivalent
benefit is provided for the use of men and women separately or men and
women are each entitled to a fair and reasonable proportion of the use
and enjoyment of the benefit.
Specific provisions relating to
sport in the act state that it is not unlawful to exclude persons of
one sex from participation in any competitive sporting activity in
which strength, stamina or physique of competitors are relevant.
Questions arise as to the perceived interpretation of some of these
phrases and as women begin to excel in more 'male oriented' sports the
agreed parameters for the exclusion may be doubtful.
The Sex Discrimination Act 1984
expressly prohibits discrimination on the basis of pregnancy, however
there is a number of key issues with regard to pregnancy which need to
be considered. These issues include that protection of the
pregnant athlete and unborn child from injury and the rights of the
coach or the organisation to make decisions which are in the best
interests of the club but opposed by the pregnant athlete.
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Legal
tension currently exists between the laws of negligence and
anti-discrimination laws. If an athlete is injured and her
unborn child is damaged, there is a possibility that the child will
sue it's mother for negligence and, if the coach was aware of the
pregnancy and encouraged the women to participate and gave advice
outside his/her area of expertise, he/she too could potentially be
sued by the child.
Sporting
organisations presently have to weigh up the greater financial risk of
one law against the other. The least hazardous approach may be to
disallow a known pregnant player from participating. This may
expose that club to litigation on the grounds of discrimination, but
will be a relatively more cost-effective avenue than the catastrophic
implications of negligence if something does unfortunately go wrong.
Discrimination
in regard to disability is another important issue for sporting
organisations. Section 27 of the Disability Discrimination Act 1992
refers specifically to clubs and associations. It provides that
it is unlawful for a club or association, it's committee of management
and the members of the committee to discriminate on the grounds of a
person's disability by refusing membership or imposing terms and
conditions of membership to the applicant or denying access to
facilities or benefits to the applicant.
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