If a sporting organisation decides to rely on the ‘competitive sporting activity’ exemption to exclude a person from a particular competition, it will need to satisfy itself that ‘strength’, ‘stamina’ or ‘physique’ are relevant and how the organisation assesses this. See page 36 for guidance on factors to consider when seeking to rely on the ‘competitive sporting activity’ exemption. Given the diversity of sports and the role of different skills and physical characteristics (strength, stamina, physique) in each sport, the assessment should be specific to the sport in question. Additionally, the exemption is limited to competitive sporting activities and does not apply to: • • • • • coaching umpiring or refereeing administration ‘prescribed sporting activities’50 sporting activities by children who are younger than 12 years of age.51 Case study Competitive sporting activity and children who are younger than 12 years of age Xanthe is ten years old, and was assigned as male at birth but identifies as a girl. Xanthe plays water polo. Xanthe’s team is playing in the local girls tournament next weekend. The tournament organisers have contacted Xanthe’s club to explain that because her birth certificate indicates her gender as ‘male,’ she won’t be able to participate. When Xanthe’s club asks for an explanation the organisers explain that there is a concern that the competition won’t be ‘fair’ because Xanthe is ‘too strong’ and that ‘the competitive sporting activity exemption allows for her exclusion on this basis’. Xanthe’s club writes to the tournament organisers indicating that the Act specifically provides that the competitive sporting activity exemption does not apply to ‘sporting activities by children who are younger than 12 years of age’. Xanthe is able to participate in the tournament. (iv) Temporary exemption A sporting organisation may apply to the Commission for a temporary exemption. Given the permanent exemptions that already exist in the Act, the Commission grants temporary exemptions sparingly. The Commission has published guidelines about how it assesses applications for temporary exemptions under the Act.52 Temporary exemptions can be granted: • subject to certain terms and conditions, and • for a period of up to five years.53 If a temporary exemption is granted, it will not be possible for a successful complaint to be brought in relation to the circumstances covered by the exemption. Guidelines for the inclusion of transgender and gender diverse people in sport • 2019 • 25