(i) Permanent exemption—voluntary body (ii) Permanent exemption—club Under the Act it is permissible for a ‘voluntary body’ to discriminate against a member or a person seeking to become a member on the basis of the person’s sex or gender identity, as well as in the provision of benefits, facilities or services to members.36 Under the Act there are particular circumstances where it is permissible for a club to discriminate on the basis of sex (although not on the basis of gender identity) in relation to club membership and benefits: What is a ‘voluntary body’? A ‘voluntary body’ is an association or other body (incorporated or unincorporated) ‘the activities of which are not engaged in for the purpose of making profit’.37 A voluntary body does not include: • a ‘club’ (see definition in section 4.2(a)) • a ‘registered organisation’ • a body established by a law of the Commonwealth, of a State or a Territory • an association that provides grants, loans, credit or finance to its members.38 A ‘registered organisation’ means ‘an organisation registered, or an association recognised under the Fair Work (Registered Organisations) Act 2009 (Cth)’.39 Some sporting organisations will be ‘voluntary bodies’ under the Act. For example, a small local soccer association that operates on a not-for-profit basis may be a ‘voluntary body’. If a sporting organisation meets the definition of a ‘club’, it cannot be a ‘voluntary body’. • if the membership of the club is only available to persons of a different sex,40 or • if it is not practicable for both men and women41 to use or enjoy the benefit at the same time or to the same extent and either: »» men and women are provided with the same benefit (or an equivalent benefit) separately, or »» they are entitled to a ‘fair and reasonable’ proportion of the use and enjoyment of the benefit.42 The use and enjoyment of a benefit for both women and men at the same time, or to the same extent, will likely only be treated as ‘not practicable’ if it creates a situation of practical difficulty. A mere social preference (in other words, men not wanting to play a sport with women or vice versa) is unlikely to meet the criteria. When deciding whether it is ‘practicable’ for men and women to use or enjoy the benefit at the same time or to the same extent, the following factors will be considered: • the purpose for which the club is established • the membership of the club, including any class or type of membership • the nature of the benefits provided by the club • the opportunities for the use and enjoyment of those benefits by men and women, and • any other relevant circumstances.43 Guidelines for the inclusion of transgender and gender diverse people in sport • 2019 • 23