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

Published 27 March 2018 | Authored by: Cassandra Heilbronn

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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About the Author

Cassandra Heilbronn

Cassandra Heilbronn

Cassandra is a Senior Associate at MinterEllison, Brisbane in the Insurance and Corporate Risk practice group, focusing on sports law, health law and medical negligence, and management liability.

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Comments (6)

  • Kirsti Miller

    27 March 2018 at 17:29 | #

    The AFL first introduced their trans participation guidelines in 2010 which followed the IOC’s Stockholm Consensus recommendations, the AFL amended their policy in 2016 to follow the updated 2015 IOC recommendations.

    I first played women’s AFL in 2013 as a transitioned XY Female.

    In your article you mention the review undertaken by the IAAF as ordered by CAS into the relationship testosterone plays in sports performance, in your article you don’t specify this study was conducted on XX females not XY male or XY transitioning or transitioned females.

    reply

    • Kirsti Miller

      27 March 2018 at 18:01 | #

      Under subsection 2.2 of the IOC transgender participation guidelines additional time to allow the minimisation of the advantage in women’s competition is also allowed by sports organisations.

      The IOC amended their trans participation guidelines as a hip response to lesson liability in Kristen Worley’s HR Case in the divisional court in Toronto Canada there was and has not been any scientific evidence to support this policy in 2015 or the original Stockholm Consensus Recommendations in 2003.

      The recent IAAF review into testosterone relationship to sports performance plays no part in determining if an XY athlete has an advantage over XX athletes, this study was only carried out on XX females.

      There is an abundance of proof that an XY Male holds an advantage in strength and endurance over XX females every sports record relating to strength and endurance are held by XY Males for a start.

      The length of time to minimise the advantage of experiencing a male puberty and living years with male level testosterone levels is the unknown factor in this debate and I suggest it will always require a case by case consideration.

      As a former male international athlete in two sports pre transition and now as an XY Female AFL Player I can assure you it took me many years not months to minimise my advantage. Being a high performance athlete pre, during and after transition Hannah will take many years to feminise and minimise her advantage in women’s competition as I also did.

      Transitioning XY females still have male endocrine systems which are still capable of producing male levels of testosterone production unlike transitioned XY Females who no longer have androgen receptors ie gonads or ovaries. The current IOC trans guidelines for transitioning and transitioned XY females has sent my body into a very unhealthy state of severe post menopausal symptoms with my body suffering complete androgen deprivation. An XX female requires 6 to 8 times less testosterone then an XY transitioning or transitioned female or male as their androgen receptors ovaries are super sensitive to testosterone.

      An XY individual requires at least 12 nmols
      Of testosterone to maintain basic daily health the current limit for transitioning and transitioned XY females of 10nmols was proven to be a breach of human rights in Kristen Worley’s HR victory in Toronto.

      XX females have no limit to the testosterone levels they are allowed these athletes are effectively super doping an already healthy endocrine system.

      The current trans participation guidelines are totally inadequate to ensure the advantage in women’s competition has been minimised and they also force female and male transitioning and transitioned athletes to have very unhealthy endocrine systems.

      reply

  • Kirsti Miller

    27 March 2018 at 19:04 | #

    If a transitioning or transitioned athlete is subjected to a strength test how do you propose sports determine if an advantage exists?

    reply

  • Kirsti Miller

    27 March 2018 at 19:08 | #

    Hannnah was not the first XY transitioned female to be banned from the AFL both myself an XY female and my XX female partner were outed from the AFL for a combined 7 years simply because I objected to being vilified in the AFL field and my female partner was outed simply because her partner was a transitioned XY Female

    reply

  • Kirsti Miller

    27 March 2018 at 20:19 | #

    The IOC and WADA do not even have the right starting point in this discussion. On 18 July 17 the Human Rights Tribunal of Ontario recognised that policies originating from the International Olympic Committee (IOC) had infringed the human rights of Canadian cyclist Kristen Worley. Whilst the agreement recognises that sport’s unsubstantiated policies have needlessly harmed XY female athletes, its real significance is that it could allow other athletes whose human rights have also been breached … sportsintegrityinitiative.com/sports-longest…

    reply

  • Kirsti Miller

    28 March 2018 at 00:18 | #

    XY women (fully transitioned) are the only athletes competing unhealthy in a complete androgen deprivation state and well beyond a (post menopause state). Incredibly unhealthy and spore eventually becomes impossible as the body deteriorates as it cannot respond to day-to-day functions without androgens as the bodies primary communications and regulator hormone.

    Moreover and important, the XY transitioned female is the only body that can show the health and key markers where the body turns on then off, as the body loses its ability to regulate androgens.

    Which then causes complete androgen deprivation of the human body, heavily contraindicates it as testosterone plays over 200 functions in the body every single day separate of the sex of the physiology.

    A transitioning XY Female (pre op) are hypgonatic, not feeling full effects of complete androgen deprivation and plus 2 dozen contraindications because they still have gonads. If they were a HP athlete prior and during continued transition minimising the advantage in women's competition away takes even longer years longer.

    There are still many questions to be answered in relation to the participation of transitioning and transitioned XY Females and XX Males, this is defiantly a work in progress. Not many people are aware that the IOC created the current transgender guidelines in half a day with no science or research. They did this as a hip response to lesson liability in Kristen Worley's human rights case in the divisional court in Canada. The current transgender and intersex IOC & WADA policies and guidelines are not based on any science. There were 90 people involved in the IOC Consensus Meeting in 2015 most people were sports officials with no qualifications to even be in this meeting and they defiantly are not medically qualified to write policies relating to the health and welfare of all female athletes globally.

    Kristen's victory in Toronto exposed both WADA and the IOC's policies to have breached human rights of many female athletes and their current policies continue to do so. Kristen's case also identified that both WADA & the IOC do not even have the right starting point in this conversation it is so much more then testosterone levels the full diversity of human physiology must now be fully considered when new policies are developed. There is a long way to go in this conversation.

    There are many sporting organisations considering the future direction of global sport none more so then world cycling and the Commonwealth Games Committee, they are doing a lot of work in this area. The days of just believing the IOC and WADA have all the answers has long gone the recent Russian Drug fiasco is a clear example of what the IOC don't know. Kristen's victory showed sports can't start writing these type of policies starting from a human rights focus they must have the science and research first.

    During my discussions with both Australian and international colleagues I feel the direction of global sport will involve having one gender policy for all women no matter their chromosomal makeup. Every group of females may have different criteria to compete but sport will start from the point that everyone is firstly acccepted and they are only denied the right to compete if they have a proven unnatural advantage.

    I also see the future of some sports being separated on abilities and physical attributes similar to the way the Paralympics separate sports.

    There is no doubt that XY Males on average have an advantage in strength speed and endurance. Just looking at all sports world sporting records clearly shows this to be true.

    In relation to Hannah and the AFL I would suggest the AFL completely ignore the IOC's Current guidelines because as I previously stated the IOC has admitted their policy was not based on any facts or science.

    The AFL is unlike any Olympic Sport it is a very high impact sport even more so for females I suggest. Recent studies haveshown females are more likely to suffer knee injuries and the impact and severity of concussions are more severe in female athletes.

    The greatest challenge for the trans and gender diverse communities is being accepted in female sports in particular high impact sports like Australian Rules Football. I suggest erring on the side of caution with all sports at the elite level or high impact sports like the AFL.

    Some sports like Australian Cycling have different criteria to be met at each level of their sport with local competitions having self identification as the only prerequisite to participation.

    I don't suggest this type of policy would work for the AFL because we are not just talking about winning or losing we are talking about the health and safety of all participants. On this point this is where I believe the AFL has made the biggest mistake with Hannah allowing her to play at the local level but not at the elite where the other players are stronger, fitter and more developed then the grassroots players.

    reply

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