Sports Discrimination Case Upheld

On the 17th February 2004 Justice Stuart Morris of the Victorian Civil and Administration Tribunal upheld a complaint made by Helen Taylor against the Moorabbin Saints Junior Football League and Football Victoria Ltd.  Ms Taylor, a female Australian Rules footballer registered as a player in the under 14 competition, alleged that a rule preventing females over 12 years of age from playing in a mixed football competition was discriminatory.  

Two other discrimination complaints by females registered as players in the under 15 competition were found not proved and dismissed. 

The relevant law involved in this matter is the Victorian Equal Opportunity Act 1995 (the Act).  One objective of the Act is to promote recognition and acceptance of everyone’s rights to equality of opportunity.  Another objective is to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes, including a person’s sex. 

Part 3 of the Act sets out the various circumstances in which discrimination is prohibited.  One such circumstance relates to discrimination in sport.  Section 65 is a key provision.  It provides: 

65.   Discrimination in sport

     A person must not discriminate against another person –

(a)    by refusing or failing to select the other person in a sporting team;

(b)    by excluding the other person from participating in a sporting activity. 

But this section is qualified.  Section 66 sets out exceptions which apply in relation to competitive sporting activity.  Section 66 (1) is the key provision, but it is desirable to set out the whole section:

 
Edition 02/2004                                                    Page   1

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66.   Exception – competitive sporting activities

 1)       A person may exclude people of one sex or with a gender identity from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant

2)       A person may restrict participation in a competitive sporting activity –

(a)  to people who can effectively compete;

(b)  to people of a specified age or age group;

(c)  to people with a general or particular impairment

3)      Sub-section (1) does not apply to a sporting activity for children under the age of 12 years.

One of the regulations developed by Football Victoria is called the Female Participation Regulation.  The regulation provides:

In accordance with the Equal Opportunity Act 1995 (Vic) (“the Act”), females aged under 12 years of age cannot be excluded from participating in Australian Football competition conducted by FV Member bodies.

Pursuant to section 66(1) of the Act, females aged 12 and over can be excluded from participating in competitive sporting activities in which the participants’ strength, stamina and physique are relevant.

FV Affiliated Bodies will exclude females who reach 12 years of age.

FV Member Bodies may seek FV Board approval to allow females who reach 12 years of age during a playing season, to compete for the remainder of that season only.

        Continued ....