Mouncey is still making mark
THIS week, the AFL delayed the inevitable. And unfortunately, I’m not referring to a Carlton premiership. It is inevitable that the AFL women’s competition will have transgender players.
So the decision by the AFL to deny Hannah Mouncey a place at this week’s national draft is not a decision that says transgender women cannot play in the AFLW.
Rather, the AFL has made it clear that it is a decision based specifically around Mouncey’s circumstances and the current environment in the AFLW.
I’ve been asked many times this week whether it is possible for Mouncey to challenge the decision legally. It was even suggested that she might seek an injunction to stop the draft going ahead.
For her part, Mouncey appears to have accepted the AFL’s decision, while being disappointed by it. In doing so, her statement was all class. It was difficult for anyone to be critical of her.
So had she not been so gracious in accepting the decision, could Mouncey have launched a legal attack?
While you can never rule it out, such a challenge would have been very difficult.
At first blush, it might look like Mouncey had been discriminated against in breach of the anti-discrimination laws operating throughout Australia.
Indeed, if Mouncey wanted to compete at an Olympics tomorrow, she would be entitled to do so. Under IOC regulations, an athlete must prove her testosterone level is below 10 nanomoles/litre. Mouncey’s measurement is reportedly 0.5 nanomoles/litre.
But Mouncey’s rejection is not in breach of the law. It would be if, because of her transgender status, she had been denied a job at the AFL. But the anti-discrimination laws permit denying a transgender person the right to participate in a sport where “strength, stamina and physique” is relevant. So at law, the AFL was entitled to deny Mouncey.
But that doesn’t mean the AFL’s decision was an easy one. I’m sure it was the opposite. As much is clear from the fact the decision came down the day before the AFLW National Draft. Perhaps the most surprising thing is that the AFL – the best-run sporting organisation in the country – did not have a policy on transgender women playing in the AFLW. It will next year. The AFL has been inclusive on many levels. The AFLW is perhaps the best example of that. The stance on marriage equality is another. So frankly, if the AFL could, I suspect it would have wanted Mouncey to play.
But it had to be mindful of the integrity of the competition and the safety of the other women playing in the AFLW.
By the integrity of the competition, I am really talking about avoiding a situation where one person is able to totally dominate the game. I’m not talking about a Dusty Martin type of dominance. I’m talking about the type you see sometimes in under-14s when the kid who has grown up quicker and looks like he’s an 18-year-old just marks everything and pushes the other kids out of the way in order to win the game himself.
No female currently playing in the AFLW competition is the same size (when you take into account height and weight) as Mouncey. Before transitioning, Mouncey played football at school and was part of Australia’s handball team that competed to qualify for the Rio Olympics.
As things presently stand, she would be about 20kg heavier than any other player in the AFLW. And that raises another issue I’m sure the AFL would have considered – the health and safety of the AFLW players. The competition – while hugely popular and successful – is in its infancy. Some of the women competing have just started their careers as elite athletes – or at least athletes in an impact sport. That must surely mean a greater possibility of injuries when playing against someone much bigger, heavier and presumably stronger.
That disparity may diminish as time goes on and the athletes on AFLW lists develop, and as Mouncey moves further along her transition from male to female.
So the AFL policy will allow transgender women to play in the AFLW in certain circumstances. Anyone who has a problem with that had better get their heads around it – because I’m sure Hannah Mouncey has. And she’s not going away. Justin Quill is a principal lawyer with Macpherson Kelley Lawyers