Transgender Rights in Sport: Redrafting Section 49 of the Human Rights Act

Abstract

This paper addresses the Human Rights Act and the sports exception contained in s 49. After a discussion of the current judicial and legislative climate surrounding the definition of sex, this paper concludes that it is unclear whether sex includes gender for the purposes of the Human Rights Act. This creates the potential for transgender and transsexual individuals to face legal discrimination when attempting to compete in sport. Thus, this paper addresses some of the current issues in sport (namely, safety and fair competition) to determine the scope of the proposed provision. Models from foreign jurisdictions and sporting bodies are discussed and discarded due to a lack of scientific evidence and high levels of subjectivity. This paper concludes that the optimal solution when redrafting s 49 is to focus on a combined objective and subjective model. A provision, loosely based on multiple of the previously discarded models, is drafted, which attempts to limit subjectivity through the creation of an objective baseline. To ensure inclusivity, this paper proposes that gender identity be added as a prohibited ground of discrimination in the Human Rights Act. In doing so, a provision which focuses on safety, fair competition and inclusivity is drafted.