The admission of transgender athletes to competition: The case of Hannah Mouncey

Published 27 March 2018 By: Cassandra Heilbronn

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In October 2017, the Australian Football League (AFL) decided that transgender athlete Hannah Mouncey was prevented from participating in Season 2 of the Australian Football League for Women (AFLW) in 2018 by refusing to allow her to be nominated in the pre-season draft. In doing so, the AFL relied on an exemption in the Equal Opportunity Act1 (EO Act) (explained below). However, in February 2018 the AFL confirmed that Mouncey was able to participate in any AFL-affiliated State based competitions2. What makes these decisions interesting is that the AFL's reasons for doing so relate to Mouncey's strength, stamina and physique, as she stands 190cm tall and weighs 100kg3.

This article provides a summary Mouncey's sporting career and the AFL's decision, which is the first (known public) decision, to not allow an athlete to participate, for a transgender athlete in professional sports in Australia.

The athlete

Hannah Mouncey (born Callum Mouncey) is a 28-year-old seasoned athlete based in Canberra, Australia. She represented Australia in the 2013 World Men's National Handball Championship4 and went on to be elected President of Handball ACT. In November 2015, Mouncey decided to transition to female, began hormone therapy and from May 2016, lived as a female. It is reported that Mouncey wanted to play handball for the Australian women's team before she turned her hand to Australian rules football5. In the 2016 season, Mouncey played eight matches for Ainslie in the Canberra Women's League.

The AFL & AFLW

The AFL is the professional competition for Australian rules football in Australia and has been so in one form or another for 121 years. It also governs the sport of AFL through the AFL Commission. Until 2017, the AFL only had a men's competition with 18 teams vying for the annual premiership trophy. The AFLW was introduced in 2016, with the inaugural season in 2017. The success of the AFLW has led to a rise in participation and viewership in women's sport in Australia6. The AFLW is restricted to 8 teams, however this will be expanded to 14, with a staggered release of more licences in 2019 and 2020. Unlike the men's competition, the AFLW players are paid (a nominal fee based on a 9-hour work week) by the AFL on behalf of the Clubs.

As with the AFL men's competition, unsigned AFLW players are subject to an annual National draft. The AFL draft gives teams two picks, with priority given to the wooden spoon team of the prior season. As the women were only signed for the first season of the AFLW, the start of Season 2 required all players to re-sign with their Club. If they did not re-sign, they were then able to sign with any Club during the free agency period or to nominate for the 2017 draft. Mouncey was a first-time entrant to the AFLW, therefore she nominated for the 2017 draft.

The decision

When Mouncey nominated to enter the AFLW 2017 draft, she says that she had been in talks with Melbourne Clubs and "knew I was going to get picked up"7 with an AFLW Club. However, the AFL formed a subcommittee to determine if Mouncey was eligible based on "an analysis of transgender strength, stamina and physique, as well as the AFLW being in its infancy"8. The main concern was said to surround whether or not Mouncey would have "an unreasonable physical advantage over her opponents"9.

The subcommittee ultimately decided to block Mouncey's nomination for the 2017 draft only, meaning she was still eligible to play for Ainslie in the Canberra women's league and was not prevented from nominating to enter drafts in subsequent years. The AFL gave a release with its decision and it is not known if detailed written reasons were provided to Mouncey. No official written determination has been made public and it is not known if the AFL considered if Mouncey's stamina or physique had caused any injury or concern in the lower league.

When considering Mouncey's eligibility for nomination, the AFL had no policy on which it could refer to and rely on. It has said that the process undertaken with Mouncey's nomination will inform the development of a transgender policy for the AFL, with the AFL stating that each case will be "decided on its own merits along with the individual circumstances of each future nominee"10. In Mouncey's case, the AFL was guided by the Victorian Equal Opportunity and Human Rights Commission's Guidelines "Trans and gender diverse inclusion in sport – complying with the Equal Opportunity Act 2010" (Guidelines). The Guidelines are not legally binding, but a Court or Tribunal is able to consider whether or not a person has complied with the Guidelines when determining a discrimination complaint11.

The Law

Relevant to Mouncey's nomination, Victorian legislation applies as the AFL is based out of Melbourne.

It is against the law in Victoria to discriminate against another person on the basis of their gender identity in sport, unless an exception applies12. Different sections of the EO Act will apply depending on if the sport or the team in which a transgender athlete is looking to participate is a same-sex competition, or if they are looking to gain membership to a mixed sex club or a single-sex club. The exception the AFL sought to rely on in Mouncey's case was s72(1) of the EO Act which says that one can lawfully discriminate against a person on the basis of their sex or gender identify if strength, stamina or physique is relevant.

This is where it is opportune to consider world-wide guidelines on participation in sport for transgender athletes. In 2015, the Court of Arbitration for Sport suspended the International Association of Athletics Federations' regulations on hyperandrogenism13 as there was said to be a lack of scientific evidence supporting a link between improved athletic performance and enhanced testosterone levels14. In November 2015, the International Olympic Committee held a "Consensus Meeting on Sex Reassignment and Hyperandrogenism", and developed new guidelines which were intended to apply to Olympic Sports ( pdfIOC's Guidelines).15

The IOC Guidelines no longer required an athlete to undergo surgical reassignment surgery as a precondition to participation. The guidelines provided no restrictions for an athlete who had transitioned from female to male, and in the case of transition from male to female it requires:

  1. the athlete to declare that her gender is female and the gender declaration cannot be changed, for sporting purposes, for a minimum of four years.

  2. the athlete to demonstrate that her total testosterone level in serum has been below 10 nmol/L for at least 12 months prior to her first competition and must remain below that level throughout the period of desired eligibility to complete in the female category.

As Australian rules football is not an Olympic sport, the IOC's Guidelines are not required to be complied with. However, that is not to say that they cannot be used for guidance in Mouncey's case, and in fact the Guidelines note that their guidelines are meant to fill the gap between elite and non-elite sport (page 5). It is widely reported that there was no issue with her testosterone levels16, and the decision by the AFL went solely to strength, stamina and physique following a strength assessment provided by Mouncey17.

It should be noted that while Mouncey was able to play in the Canberra women's league, the exceptions to the Discrimination Act 1991 (ACT) are not as expansive as the EO Act. There is no suggestion that the Canberra women's league ever sought to have Mouncey excluded, rather this comment is made for comparative purposes only.

Other cases worldwide

In 2013, there was worldwide discussion regarding Fallon Fox, MMA's first open transgender athlete. Fox was licensed by the Florida State Boxing Commission as a featherweight tournament participant, but they sought to review it after learning that she was a transgender female. Fox stated on her application that her gender was female, and there was no requirement to make any reference to her being transgender.18 The focus of the discussion surrounded bone density and strength, which was argued does not change post operation19.

For more information about Fallon Fox's story and transgender athletes, please see the documentary "Game Face"

More recently, Kristen Worley, a Canadian cyclist who was an XY male and transitioned to become an XY female 20 years ago, alleged in 2016 that the IOC infringed her human rights by reason of its policy on hormone regulation.20 Over a reported decade long campaign, the IOC policies changed twice and brought to light questions and processes around scientific evidence and its place with transgender athletes. In Worley's view, high-performance females had elevated levels of testosterone and that the IOC’s position in setting a cut-off level for testosterone was not routed in scientific evidence.21

For a LawInSport podcast with Kristen Worley discussing the issues that she faced and her campaign, please see here: Campaigning for equality and recognition of human rights in sport.22

The future

In February 2018, Mouncey sought confirmation from the AFL that she would be able to play in the women's league in Melbourne if she was to relocate from Canberra for work. On 13 February 2018, the AFL confirmed that Mouncey was able to play in any AFL-affiliated State league for the 2018 season as it finalises its gender diversity policy.23 The AFL has been clear in all of its communications that its decision of October 2017 regarding Mouncey's nomination to the draft related to 2017 only.

Following the AFL's initial decision, the Australian Sports Commission confirmed that it was in preliminary discussions with the Australian Human Rights Commission to develop a policy for trans and intersex people in sport.24 Until then, for non-Olympic sports, it will be a matter of properly considering each athlete's circumstances against the sport in which they are applying to participate in and ensuring that procedural fairness is afforded to any hearings. Any governing body who receives an application for participation from a transgender athlete should ensure that all steps are properly paper-trailed and all evidence considered, including a proper physical strength test. A reliance on an exclusion under the EO Act (or any other State based discrimination legislation) will likely not be valid if, for example, it is decided by one person without consideration of all of the evidence.

Determinations that impact transgender athletes will draw media comment and community interest. It is important that all governing bodies consider implementing its own policies or guidelines to reduce uncertainty and provide a scope for future decisions. Scientific evidence, including testosterone levels or consideration of bone density and strength depending on the sport, should be used as a basis for creating, and later applying, policy. WADA has produced guidelines25 to support Therapeutic Use Exemption (TUE) Committees, which may provide a starting point for understanding scientific evidence with regards to applications from transgender athletes. These policies or guidelines should be applied alongside any policy that may be provided by the Australian Sports Commission, or like body. By taking these steps now the governing bodies can look to reduce the impact of a decision to deny an athlete's participation in what would generally be a comprehensive process for all involved.

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Author

Cassandra Heilbronn

Cassandra Heilbronn

Cassandra Heilbron

Cassandra is the Sports, Entertainment and Events Regulation Legal Manager at the Royal Commission for AlUla, and prior to June 2019 was a Senior Associate in the Sports and Corporate Risk practice group at MinterEllison in Australia. Her practice areas saw her acting in commercial matters with worldwide sporting organisations, corporations and sponsors; event management; player disputes on behalf of Clubs and governing bodies; player selection appeals for international athletics competitions and managing image rights and social media disputes (defamation and discrimination). Over the past twelve years, Cassandra also acted in insurance disputes primarily in the management liability, professional indemnity, medical negligence and public liability space.

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