By excluding Hannah Mouncey, the AFL's inclusion policy has failed a key test

Hannah Mouncey is a transgender female who wants to play in the Australian Football League’s women’s competition (AFLW). Virtually every Australian jurisdiction says an attempt to stop her doing so would amount to discrimination. But instead of taking an inclusion-based, “unless there are compelling reasons not to” approach, the AFL waited until the day before the AFLW draft to announce that Mouncey was ineligible to be selected.

The decision to exclude Mouncey may well breach anti-discrimination law, and certainly contradicts the AFL’s public position of embracing diversity and inclusivity.

How did the AFL reach its decision?

In its announcement this week, the AFL claimed to have been “guided by” the Victorian Equal Opportunity and Human Rights Commission’s guidelines on trans and gender-diverse inclusion in sport.

Victoria’s Equal Opportunity Act says sporting bodies must not discriminate against another person by excluding them from participating in a sporting activity. But, it also provides an exception that allows organisations to exclude a person if their “strength, stamina or physique is relevant”.

The AFL has relied on this provision to block Mouncey’s right to play. It said its subcommittee had:

… carefully considered all the information provided by Hannah, as well as the available data on transgender strength, stamina, physique along with the specific nature of the AFL competition.

The AFL was careful not to say what information Mouncey provided, and did not specify what the “available data” were or where they could be sourced.

The AFL also did not go into detail about how her strength, stamina or physique were relevant. Presumably, it relates to Mouncey being 190cm tall and weighing 100kg. But Mouncey has been legally and medically cleared to play handball by its governing body, and her doctors also provided evidence to support her case for inclusion in the AFLW.

There’s no doubt Mouncey’s physique is imposing. But, in women’s sport, she will be in good company. There are many examples of non-transgender women in Australian national teams who are of a similar stature and strength, such as basketballer Liz Cambage (who is 203cm and 98kg).

Anyone who has ever played a collision sport like AFL knows how hard it is to push a big player around, whether they are strong or not. The same goes for strong players of any size. You have to learn to deal with them in other ways, and the good players learn those techniques. And the AFLW is the elite level.

It is not clear how Mouncey’s “stamina” has been measured, or why or how the AFL regards it as significant. AFL is played on the wide open space of an oval. The smaller, fitter women will run rings around Mouncey.

The subcommittee said its decision was also based on “the stage of maturity of the AFLW competition”. One can only speculate on what that means, particularly where the AFL has encouraged Mouncey to reapply again next year. It may suggest the AFLW players are not yet at a sufficient level of “strength, stamina or physique” to be able to play with or against Mouncey.

But, apart from being condescending and insulting to the current AFLW players, this statement also contradicts Mouncey being given permission to continue to play locally. She has been cleared to play in Canberra’s AFL women’s competition, which is arguably of a lesser standard than the AFLW.

A more transparent policy is needed

No-one, including the AFL, is suggesting that Mouncey’s decision to transition to a woman is in any way motivated by an intention to play women’s sport. The AFL’s concern instead is expressed as a belief that she would have had an unreasonable physical advantage.

But where does the cut-off lie? Would another trans-female player under six feet tall and weighing less than 80kg have suffered the same fate?

The AFL and the subcommittee are careful not to go into any detail about what the perceived advantage is, nor why it is determined to be unreasonable. Instead it appears to amount to discrimination the Equal Opportunity Act, and the AFL’s actions are not subject to an exemption.

By referring only to the “strength, stamina and physique” formulation and not providing any further detail, the AFL and its subcommittee appear to be hoping they will avoid that characterisation.

The AFL Players Association also criticised the league for not having clear-cut transgender guidelines, and it does appear the AFL, via its apparently ad hoc subcommittee, has had to deal with Mouncey’s nomination on the fly.

More concerning, the AFL’s decision harks back to the discriminatory days of the 20th century and, more recently, now-discredited hyperandrogenism policies.

The AFL and its subcommittee don’t appear to have consulted other AFLW players or trans athletes in other sports. But they would do well to read the Court of Arbitration for Sport’s decision regarding Indian runner Dutee Chand or the ten-year battle for recognition by Canadian cyclist Kristen Worley, and relinquish the flawed science on the performance benefits of testosterone that so many sporting organisations have hidden behind for so long.

Further reading: Fair play at the Olympics: testosterone and female athletes

Recently publicised athlete welfare issues bring to the fore the importance of sport adopting policies to include all members of the community.

The AFL may also be in breach of Section 16 of the Equal Opportunity Act, which says that an employer (here, the AFL) must not discriminate against job applicants. Transgender people report challenges with securing employment and accommodation, and if Mouncey has an opportunity to earn a living through her sport, she should be entitled to do so.

Catherine Ordway is a member of Australian & New Zealand Sports Law Association.

Allistar Twigg is a sports lawyer with SHG Lawyers, and is a member of the Australian & New Zealand Sports Law Association.