(NSW) Amend Discrimination Exemptions Against Trans Participation in Sports

Emmaby Barton Grace & Sheri Dewhurst
May 15
9 min read

Author: Emmaby Barton Grace & Sheri Dewhurst | Publish date: 15/5/2026

Trigger Warning: Transphobia

P: In NSW, sporting organisations can exclude trans people from participating, coaching or administering sport based on sex.
S: The NSW Minister for Sport should amend Section 38P of the Anti-Discrimination Act 1977 (NSW) and replace the current sporting activity exemption with a broader exemption (below).
E: Equality Australia: ‘Repeal s 38P in its current form [and] insert a provision for a restriction to participation exemption which sets out that the exemption: (a) does not apply to children under 12 years of age, (b) is limited to competitive sporting activity, (c) does not applying [sic] to umpiring or refereeing, (d) is only permitted to the extent that the strength, stamina or physique of competitors is relevant, and where reasonable and proportionate in all the circumstances of the case.’

Problem Identification:

The Anti-Discrimination Act 1977 (NSW) (the Act) makes it unlawful to discriminate against a person on the basis of their sex. However, Section 38P of the Act permits the exclusion of trans people from sports designated for their identified sex.

According to Equality Australia, this ‘allow[s] discrimination in sport against transgender people [in NSW that] is broader than comparable laws, including under Commonwealth laws.’ Outright, an international organisation advocating for LGBTIQ+ human rights, cautioned that this discrimination violates international human rights and ‘perpetuate[s] harmful stereotypes …, increasing the risk of violence … within and outside sports.’

Context:

Trans, gender-diverse, and non-binary (TGD) refers to those ‘whose gender is different to what was presumed for them at birth.’

Although data collection on TGD people in Australia is limited, it is estimated that around 1.5% of Australian adults (approximately 400,000) are TGD. However, according to health researchers Bailey et al. (2024), ‘trans people … are significantly under-represented in sport’. They found that 1 in 3 (33%) trans people, compared with 4 in 5 (78%) of people in the general Australian population, regularly participate in sport.

Arguments:

According to the UN Special Rapporteur in the field of Cultural Rights, Alexandra Xanthaki, the exclusion of women, including intersex and trans women, from participating in sports is ‘discriminat[ory]’ and ‘do[es] not comply with current standards of international human rights law’. In particular, concerns have been raised about the exclusion of TGD people from sports involving ‘intrusive and rights-violating practices like sex testing.’ The Gay & Lesbian Alliance Against Defamation (GLAAD) argued that these practices ‘[do] not make sports fairer—[they create] more opportunities for discrimination and inequity’ and ‘disproportionately target certain women based on race, gender expression, and natural biological variations.’

Equality Australia reported that negativity and discrimination regarding TGD participation in sports result in ‘poorer mental and physical health outcomes.’ The Free to Exist Report (2024) found that there is evidence to suggest that sport settings in Australia ‘are unwelcoming and hostile to LGBTQIA+ communities’. Equality Australia emphasised that ‘public conversations about trans girls’ and women's participation in sport have adverse impacts on the trans community and deter their participation in the sports they love at a community level.’ Due to these negative attitudes, the Free to Exist Report (2024) noted that from 2019 to 2024, trans women’s participation in competitive sport declined from 43.8% to 25%, and for trans men from 23.5% to 0%.

According to TGD health researchers, Zwickl et al. (2024), concerns regarding TGD participation in sports generally focus on ‘whether the playing field remains level’ with the inclusion of trans women in sport, due to beliefs that they may ‘have superior strength, endurance, or speed.’ However, Equality Australia explained that ‘there is currently no empirical evidence to support blanket bans of trans people from sport, and claims that trans women and girls have an inherent physical advantage over cisgender women and girls are exaggerated.’ Sieczkowska et al. (2026) found that ‘physical fitness was comparable’ between trans and cisgender women. Further, TGD health researchers Cheung et al. (2023) found that the use of feminising hormone therapy in trans women can reduce perceived advantages of ‘physical performance, muscle strength, and markers of endurance’ over a period of 2–4 years.

Advice/Solution Identification:

Equality Australia called for the amendment of discrimination exemptions against TGD participation in sports. Bailey et al. (2024) explained that ‘urgent efforts are required to promote sport/fitness participation among trans people to ensure they can enjoy healthier, happier and more productive lives and maximise the health and economic benefits of sport and physical activity’.

Precedent:

There is domestic precedent for supporting anti-discrimination measures for trans inclusion in sports. In VIC and QLD, the relevant exemption does not apply to children under 12 years old, non-competitive sporting activities, or umpiring or refereeing.

Public Support:

Equality Australia

Broad support:

Australian Human Rights Commission - Called for the inclusion of transgender and gender diverse people in sport. However, they have not explicitly called for the amendment of anti-discrimination measures in NSW.
Sport Australia - Called for the inclusion of transgender and gender diverse people in sport. However, they have not explicitly called for the amendment of anti-discrimination measures in NSW.

The following do not support a blanket ban of trans people in sport; however, have not suggested a legislative pathway:

The following organisations endorsed Outright International’s recommendation within this submission: ‘This statement, initiated by Outright and 13 other human rights organisations and sporting associations, calls for inclusive approaches to ensure that everyone, regardless of gender identity or sex characteristics, can participate safely and equitably in sports.’

This list reflects publicly stated positions and should not necessarily be taken as endorsement of this specific brief.

News Coverage:

ABC News - “High-performance guidelines released for transgender and gender diverse inclusion in Australian sport”. This article described how the Australian Sports Commission (ASC) has released its guidelines for the inclusion of trans and gender diverse athletes in high performance sport, reminding sports governing bodies of their commitment to promoting a 'spirit of inclusion' and abiding by Australian law. It explained some of the concerns and myths regarding trans women participating in sport and an example of how these guidelines could be used in the context of AFL. By: Tracey Holmes | 16 June 2023 - Read the article here.
news.com.au - “Banning trans women from sport ignores so many inconvenient truths”. This article, authored by a trans woman, examined some of the concerns and myths regarding the participation of trans women in sport, and encouraged readers to recognise the nuance of this debate instead of generalising. By: Natalie Feliks | 21 September 2023 - Read the article here.

Where to go to learn more:

(2025) Modern, Fair, Equal: Making Discrimination Laws Work for LGTBIQ+ Communities: Submission by Equality Australia to the NSW Law Reform Commission’s Review of The Anti-Discrimination Act 1977 (NSW): Unlawful Conduct (August 2025) | Equality Australia - This report explains how current anti-discrimination laws undermine trans and gender-diverse participation in sport, calling for tighter legal safeguards, clearer guidance, and an inclusion-first approach so that trans athletes can safely and fairly access sport at all levels. Read the full report here.
(2024) Report of the Special Rapporteur in the field of Cultural Rights, Alexandra Xanthaki: The right to participate in sports | United Nations General Assembly - This report addressed how the right to participate in sports is an important element of the right to participate in cultural life. Xanthaki explained the obstacles to the right to participate in sports and the obligations of states and sporting associations. She highlighted some positive and concrete examples of inclusive access to and participation in sports. Read the full report here.
(2024) Trans, Gender Diverse and Intersex Inclusion in Sports is a Human Right | Outright International - This open letter, initiated by Outright and 13 other human rights and sporting organisations, asserted that trans, gender-diverse and intersex people have the human right to participate in sport at all levels, condemned discriminatory rules and rhetoric that exclude them from women’s and mixed categories, and called on states, sports bodies and rights mechanisms to adopt inclusive, case‑by‑case approaches that respect bodily autonomy, privacy and dignity rather than blanket bans or intrusive eligibility criteria. Read the full statement here.
(2025) Trans Inclusive Sports Briefing | Equality Australia and Pride Cup - This briefing provided information, resources and legal analysis to better understand the discourse surrounding the inclusion of trans people in both community and elite level sport in South Australia. It included some context on the involvement of trans people in sports, the law in Australia, the science on the inclusion of trans women, what sporting bodies are doing, and the importance of allowing children to participate in sport. Read the full briefing here.
(2024) Trans Women in Sport: What Does the Science Say? | Trans Health Research - This article provided an overview of the common concerns regarding trans participation in sport, an overview of the science regarding how hormone therapy impacts the body and athletic performance, and what research is still needed. Read the article here.
(2026) Body composition and physical fitness in transgender versus cisgender individuals: a systematic review with meta-analysis | British Journal of Sports Medicine - This article conducted a systematic review with meta-analysis to compare body composition and physical fitness between trans and cisgender individuals. They found that trans women had ‘comparable’ physical fitness to cisgender women, and that while more evidence is needed, current evidence ‘does not support theories of inherent athletic advantages for trans women over cisgender’. Read the full article here.
(2024) Free to Exist: Documenting participation data on LGBTIQA+ young people in sport and physical activity | Swinburne Sport Innovation Research Group - This report explored how LGBTIQA+ young people in Australia experienced participating in sports, including the impacts of childhood experiences, personal circumstances, identity, representation, feelings of safety, and public attitudes. Read the full report here.
(2017) Beyond XX and XY: The Extraordinary Complexity of Sex Determination | Scientific American - This article explained how sex is socially constructed and not simply binary. Read the full article here.
1. This supports other research which discusses how proposed ways of categorising athletes as male or female (e.g. chromosomes, genitals, gonads, hormones) are not that ‘clear-cut’ or scientifically accurate.
Anti-Discrimination Act 1977 No 48 (NSW) - Read the full Act here.

Human Perspective:

Trigger Warning: Transphobia

Emily had always loved soccer – the rhythm of her boots on the grass, the easy laughter with teammates, the feeling that, for once, her body belonged to her. When her local club raised concerns about her eligibility because she was transgender, Emily was asked to undergo expensive and intrusive sex verification testing despite a lack of evidence for their reliability. In the meantime, she was asked to stop playing for the club, despite years of commitment and no evidence that her participation posed any unfair advantage. She hadn’t thought she would ever be excluded, not just from playing at a local level, but also from coaching or even volunteering, simply because of her identified sex. The experience left her isolated, reinforcing the message that she was not welcome in a space that once supported her wellbeing. She began to question whether she was seen as a teammate or a problem to solve. What had once been a space of freedom became one of quiet anxiety, where every sprint, every goal, carried the weight of proving she deserved to be there at all.

To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement:

N/A

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Reference list:

ACON. (2019). A Language Guide: Trans and Gender Diverse Inclusion. https://www.acon.org.au/wp-content/uploads/2019/11/TGD-Language-Guide_2019_updated.pdf

Anti-Discrimination Act 1977 (NSW). https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1977-048#sec.38:~:text=38P%C2%A0%C2%A0%C2%A0Sport,of%20this%20section.

Anti-Discrimination Act 1991 (QLD). https://www.legislation.qld.gov.au/view/whole/html/current/act-1991-085

Bailey, S., Trevitt, B., Zwickl, S., Newell, B., Staples, E., Storr, R., & Cheung, A. S. (2024). Participation, barriers, facilitators and bullying experiences of trans people in sport and fitness: findings from a national community survey of trans people in Australia. British Journal of Sports Medicine, 58(23), e107852. https://doi.org/10.1136/bjsports-2023-107852

Cheung, A. S., Zwickl, S., Miller, K., Nolan, B. J., Qi Wong, A. F., Jones, P., & Eynon, N. (2023). The Impact of Gender-Affirming Hormone Therapy on Physical Performance. The Journal of Clinical Endocrinology and Metabolism, 109(2), 455–465. https://doi.org/10.1210/clinem/dgad414

Equal Opportunity Act 2010 (VIC). https://classic.austlii.edu.au/au/legis/vic/consol_act/eoa2010250/s72.html

Equality Australia. (2025, August 29). Modern, Fair, Equal: Making Discrimination Laws Work for LGBTIQ+ Communities: Submission by Equality Australia to the NSW Law Reform Commission’s Review of the Anti-Discrimination Act 1977 (NSW): Unlawful Conduct. Equality Australia. https://equalityaustralia.org.au/wp-content/uploads/2025/09/2025.08.29-Equality-Australia-Modern-Fair-Equal-Making-Discrimination-Laws-work-for-LGBTIQ-Communities-1.pdf

Hilton, E. N., & Lundberg, T. R. (2020). Transgender Women in the Female Category of Sport: Perspectives on Testosterone Suppression and Performance Advantage. Sports Medicine, 51(2), 199–214. https://doi.org/10.1007/s40279-020-01389-3

Gay and Lesbian Alliance Against Defamation (GLAAD). (2025). Sex Verification Testing: What you need to know. https://assets.glaad.org/m/361c34d3aa842a81/original/Inclusion-Playbook-Harms-of-Sex-Verification-Testing.pdf

Outright International. (2024). Trans, Gender Diverse and Intersex Inclusion in Sports is a Human Right. https://outrightinternational.org/insights/trans-gender-diverse-and-intersex-inclusion-sports-human-right

Reynolds, A., & Jahromi, A. H. (2021). Transgender Athletes in Sports Competitions: How Policy Measures Can Be More Inclusive and Fairer to All. Frontiers in Sports and Active Living, 3, 704178. https://doi.org/10.3389/fspor.2021.704178

Sieczkowska, S. M., Mazzolani B. C., Coimbra D. R., Longobardi, I., Casale, A. R., da Hora, J. D. F. V. M. P., Roschel, H., & Gualano, B. (2026). Body composition and physical fitness in transgender versus cisgender individuals: a systematic review with meta-analysis. British Journal of Sports Medicine, 60(3), 198–210. https://bjsm.bmj.com/content/60/3/198.

Storr, R., Yeomans, C., Albury, K., Ridgers, N., & Sherry, E. (2024). Free to Exist: Documenting participation data on LGBTIQA+ young people in sport and physical activity. Submission prepared for VicHealth by the Sports Innovation Research Group at Swinburne University, Proud2Play, Thorne Harbour Health, VicHealth, VicSport. https://www.vichealth.vic.gov.au/sites/default/files/2024-05/Free_to_Exist_Report_2024.pdf

Wooden, M., Ey, T., & Wilkins, R. (2025). Economic, Social and Health Outcomes of the Transgender and Gender-Diverse Population in Australia. Australian Economic Review, 58(3), 199–210. https://doi.org/10.1111/1467-8462.70005

Xanthaki, A. (2024). Report of the Special Rapporteur in the field of cultural rights, Alexandra Xanthaki: The right to participate in sports (A/79/299). UN General Assembly. https://documents.un.org/doc/undoc/gen/n24/235/12/pdf/n2423512.pdf

Zwickl, S., Ward-Smith, E., Wong, A., & Cheung, A. (2025, September 29) Trans Women in Sport: What Does the Science Say? Trans Health Research. https://www.transresearch.org.au/post/trans-women-in-sport