4 What does the law say? While the Act does not define ‘substantive equality’, the Federal Court has held that ‘substantive equality’ means equality in substance, rather than ‘formal’ equality.33 Equality in substance recognises that, for disadvantaged groups, formal equality before the law—or treating everyone the same—is not always sufficient to eliminate the effects of historical discrimination, and may actually entrench existing discrimination. Positive actions that confer an extra benefit on members of a disadvantaged group may be required to attain ‘real’ or substantive equality. The Commission does not have the power to certify special measures under the Act, nor does any other body. Instead, a sporting organisation should satisfy itself that a proposed measure constitutes a special measure. Even if a sporting organisation has determined that an action it has taken is a ‘special measure,’ this action could still be the subject of a complaint to the Commission by someone who disagrees with the organisation’s characterisation of its actions as a special measure. Section 7 includes further information about the Commission’s complaints process. Depending on the circumstances, taking steps to encourage the participation of transgender and gender diverse people in sport may constitute a special measure under the Act. If a sporting organisation wants to adopt a ‘special measure’, it will need to determine that the action it is taking is for the purpose of achieving substantive equality between women and men, or people of different gender identities. Examples of potential special measures are set out below. The Commission has published guidelines on special measures under the Act, which provide detailed guidance to assist individuals and organisations to assess their own equity initiatives for consistency with the Act.34 Special measures The following are examples of actions which may, depending on the circumstances, be regarded as a special measure: • setting targets for the minimum number of transgender and gender diverse players a sporting organisation seeks to sign up to its membership list • offering allocated training sessions for transgender and gender diverse players, with a view to encouraging participation • offering a pre-season trial program for prospective players who are transgender or gender diverse, with the aim of showing that there are no barriers to their participation. 22 (b) Exemptions The Act provides for both temporary and permanent exemptions from the operation of the anti-discrimination provisions of the Act.35 An exemption makes certain conduct lawful under the Act and prevents a person from successfully claiming that an action is unlawful discrimination. A sporting organisation must apply to the Commission to obtain a temporary exemption. A sporting organisation does not need to apply to the Commission to rely on a permanent exemption. If a sporting organisation wishes to rely on a permanent exemption it will need to make its own assessment that the exemption applies. Relying on an exemption is not mandatory. Sporting organisations may choose to comply with the core anti-discrimination provisions of the Act even when it is possible to rely on an exemption.