Trans students in competitive NSW sports could be excluded based on ‘risk’

A review of 10-year-old legal advice on gender-diverse participation in competitive school sport could result in trans students being excluded based on ‘risk of injury’.

Departmental legal advice could result in high school students who identify as transgender being excluded from collision sports at the representative level due to ‘inherent risks’. Picture: iStock

NSW Department of Education legal advice, currently under consultation, could result in high school students who identify as transgender being excluded from “collision” sports such as Australian rules, rugby league and rugby union at the representative level due to “inherent risk”.

Yet gender-diverse students would be permitted to play semi-contact sports like basketball or soccer on a “case-by-case basis”.

A departmental legal document on “transgender students in schools” is being reviewed for the first time since 2014. If approved, it could be relied upon as early as Semester 1, 2025.

The legal bulletins are provided to help staff understand their legal obligations under state and commonwealth laws and regulations.

A portion of the advice, seen by The Australian, regarding gender-diverse high school students playing representative school sports, states sports should be grouped based on their “inherent risk”.

For individual or non-contact sports such as athletics, gymnastics, squash or swimming, the department says to “let them play” within their identified gender.

For contact or semi-contact team sports like basketball, hockey, soccer, or netball, gender- diverse students should be permitted to compete as their identified gender on a “case-by-case basis”.

With “collision” sports, such as Australian football, rugby league, and rugby union, gender- diverse students should be “excluded” due to risk of injury to themselves and others.

This advice would apply up to representative competitive sport at state level and above.

The 2014 legal bulletin for transgender students in sport states “it may be lawful to exclude students aged 12 and over from competing in certain sports at the elite level in certain circumstances” and it should occur on a “case-by-case” level, but does not specify “risk”.

The Australian recently reported that the number of school students identifying as neither male nor female was now 20 times higher than before the pandemic.

Data released by the Australian Curriculum, Assessment and Reporting Authority reveals that at least 2560 students enrolled as non-binary last year – up from 128 in 2019.

Non-binary enrolments account for barely 0.05 per cent of the nation’s four million school students, but create a legal and ethical minefield for principals and teachers as education ­departments and anti-discrim­ination bodies dictate increas­ingly complex regulations.

ACARA said not all schools provided non-binary enrolment data to the Australian Bureau of Statistics, so “this number does not reflect the total number of Australian school students who identify as neither male nor ­female’’.

A representative for the NSW Department of Education told The Australian on Friday it was “committed to ensuring every student has the opportunity to be involved in all aspects of school life”.

“The Department of Education advice regarding the legal rights of transgender students in schools has been in place for more than a decade,” the representative said.