Emma McKeon: Trans athletes in women's sport 'just isn't fair'

Australia's playing field isn't even when all of the umpires have different rule books.

Australia's playing field isn't even when all of the umpires have different rule books.

Swimming olympic superstar Emma McKeon has stormed into the debate on trans women. In comments that will be heard around the world as nations and sporting bodies grapple with the issue, the five-times gold medal winner said it’s “just not fair” that women should compete against biological men.

“I mean, I personally wouldn’t want to be racing against someone who is biologically a male, so that’s a concern,” McKeon said.  “It’s not a new thing, but it’s new in that sport, swimming, are going to have to deal with it,” she said at a seminar at Queensland’s Griffith University. “Now that it’s a growing thing, the sport has to think about how to handle it and how to deal with it, because you do want to be inclusive, but you don’t want to have females racing against swimmers who are biologically male because it’s just not fair.” 

On the issue of fairness, Australia's discrimination laws do seem to acknowledge this. Labor leader Anthony Albanese has pointed to these very laws as he played down the debate that flared up during the federal election campaign this week.

When asked for his position on transgender participation in women's sport on Wednesday, Albanese said: "that's covered by the Sex Discrimination Act."

Zali Steggall, the Independent MP for Warringah, which has become ground zero for the debate over trans athletes, said something similar: “I feel there’s a lot of lying going on about the actual status quo, we already have a law," she said. “The sex discrimination act already deals with the situation, this is just not an issue.

“And saying that parents will be concerned is just repeating a transphobia line.”

So, what are the rules?

Australia’s Sex Discrimination Act 1984 – Section 42 (1) states that in sport, it is not unlawful to discriminate on the ground of sex, gender identity or intersex status "by excluding persons from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant".

So, basically, sports can exclude trans women from competing in sport and not be sued under Sex Discrimination laws. 

Of course, that won't stop sporting bodies and states from making up their own rules, so it’s not really a level playing field, so to speak.

For example, the Northern Territory's Education Department is considering new plans to organise “non-gendered” sports teams, physical education activities and sports days. 

The challenge for sport administrators is striking the right balance between transgender inclusion, fairness and safety.

In 2019 Sport Australia released guidelines for the inclusion of transgender and gender diverse people in sport that help sports to regulate their own codes and make rules around who can participate and can’t.

Some advocates say the laws don't go far enough and call for an outright ban. 

Liberal candidate, Katherine Deves, is one of the founders of Save Women's Sport, an organisation campaigning to ban transgender women from competing against female athletes.

Deves, Scott Morrison's candidate for the Sydney seat of Warringah, has been criticised on the campaign for Twitter posts in which she referred to transgender teenagers as ‘surgically mutilated’ and ‘sterilised’ leading to calls for her to be disendorsed. 

This week, Morrison spoke out in support of Deves and said she should not be "cancelled" although he has also said he didn't agree with her comments. 

Senior Liberals have said there is concern in the community about trans women playing in all-women teams. NSW Labor Leader Chris Minns has also said there are "legitimate issues" to be discussed. 

Anthony Albanese has spoken out against Deves and said calls for a ban on transgender players in community sport are cynical and divisive. Yesterday, however, it was his turn to backflip.

Asked for his "view on transgender participation in women's sport" at a press conference on Wednesday, he replied:  'That's covered by the Sex Discrimination Act". 

Asked again for his "personal view" he said: 'That girls should be able to play sport against girls and boys should be able to play sport against boys".

Earlier this year, Liberal Tasmanian Senator Claire Chandler said the legislation did not go far enough and proposed a private member’s bill to ensure fairness.

The ‘Save Women’s Sports’ bill seeks to exclude trans women from competing in female categories.

While Scott Morrison initially pledged his support for the legislation, saying he personally shared Senator Chandler's views, he quickly backflipped on this position and said the government had no plans to back it. 

Under the legislation, changes would be made to the Sex Discrimination Act to “clarify” that the operation of single-sex sport on the basis of biological sex was not discriminatory.