Recent changes affecting participation of intersex athletes
The Births, Deaths and Marriages Registration Act 2023 (Qld) (BDMRA) has been recently amended with the intention of modernising the Australian anti-discrimination laws. Amendments include¹:
- the definition of gender identity has been changed; and
- a new definition of sex characteristics has been added.
These amendments have the flow on effect that the Anti-Discrimination Act 1991 (Qld) (ADA) will no longer allow for restriction of intersex athletes in a competitive sporting activity in Queensland – even if the restriction is reasonable having regard to the strength, stamina or physique requirements of the activity.
“Intersex” is a term used to describe a natural variation in sexual characteristics that is not consistent with common binary notions of male or female. This is different from “transgender” which is a term for persons whose gender identity differs from the sex that they were assigned at birth.
The ADA says that you cannot restrict participation in a competitive sporting activity to either males or females unless you can satisfy the “sporting exemption”² – in which case you can do so (however this does not apply to children under 12 years of age). The “sporting exemption” allows the restriction of participation in competitive sport to males or females (if the restriction is reasonable having regard to the strength, stamina or physique requirements of the activity).
Also included is a general exemption to the prohibition on discrimination for a competitive sporting activity on the basis of “gender identity“.
However, the definition of “gender identity” has now changed to refer only to transgender people. Intersex people are no longer included in the definition of ‘gender identity’. Instead, intersex people are recognised under the new protected attribute of ‘sex characteristics‘ which is not included in the current sport exemption (or the proposed amendments).
In any case, practically, sporting organisations are currently more likely to be dealing with transgender / gender identity scenarios than that of intersex athletes.
¹ Section 157 Births, Deaths and Marriages Registration Act 2023 (Qld)
² Section 111 Anti-Discrimination Act 1991 (Qld)
