Relying on the ‘competitive sporting activity’ exemption There may be times when a sporting organisation considers that participation on the basis of affirmed gender identity alone is not possible. For example, this may occur in a sport where an individual’s strength directly affects their ability, and the ability of others, to ‘effectively compete’.79 In these circumstances a sporting organisation may seek to rely on the ‘competitive sporting activity’ exemption in the Act.80 When seeking to rely on the ‘competitive sporting activity’ exemption, the following factors should be considered: • Importance of inclusion to your sport Sports are often structured around particular core values and beliefs. These include respect, fairness, community, integrity, professionalism, and inclusion. • Limits of ‘competitive sporting activity’ The exemption only applies to competitive sporting activity in which the competitors are aged 12 years and over. The exemption only applies to competitors. It does not apply to coaches, umpires or referees, or administrators. Not all sports or physical activities will constitute a ‘competitive sporting activity’ for the purpose of the exemption. For example, as the term is not defined in the Act, it is uncertain whether an activity, where the sole purpose is social participation, would constitute a ‘competitive sporting activity’. • Relevance of strength, stamina and physique Sports are diverse. Different sports require different skills and physical input from participants. If strength, stamina and physique are relevant, the assessment should be based on these factors and not on gender identity. The exemption only applies to sports where the strength, stamina or physique of a competitor is relevant. These characteristics might not be relevant if your sport is skill rather than strength-based. If these characteristics are not relevant to ‘effective competition’ within your sport, then the exemption may not apply. • A fair and robust decision-making process If a sporting organisation seeks to specifically exclude an individual from a ‘competitive sporting activity’ by relying on the exemption, then it is advisable for it to consider: • consulting with the relevant national or state sporting organisation • consulting with the relevant player association • ensuring that it has an established, clear, written and publicly available policy (prior to seeking to rely on the exemption) which states: »» how it will assess the application of the exemption »» who will make the assessment »» what evidence will be used for this assessment, as well as the other factors on which the assessment will be based • ensuring that any assessment is undertaken in a timely manner so that the individual is not unnecessarily disadvantaged • providing the individual with an opportunity to respond to any proposal to exclude them based on the exemption • providing the individual with written reasons for any decision to exclude them • providing the individual with an opportunity to seek a review of a decision to exclude them. 36