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Gay inclusivity in sport starts at parish and county board level, says Bar Council chair
Bar Council chair Maura McNally BL

26 Jan 2021 / sports law Print

LGBT+ sport inclusivity begins at parish level – Bar Council chair

Gay inclusivity in sport needs to be planted at every parish and every country board in Ireland, the Bar Council chair Maura McNally has said.

Speaking at a recent OUTLaw LGBT+ inclusivity in sport webinar, the Bar Council leader said that discrimination exists in particular for LGBT+ in the workplace.

Full equality

“It’s going to be a slow march towards gaining full equality and full recognition for everybody, in that one should not have to shout from the rooftops, ‘I’m gay’,” she said.

“I’m not sure how many straight people I know run to the rooftop and shout ‘I’m straight’,” she said.

“We seem to have to describe ourselves, while members of the straight community don’t, but in facing that discrimination the way forward in my opinion is through education, and through practices equivalent to dignity in the workplace schemes."

She said that 32% of Irish people voted against gay marriage therefore there is still work to do but education must come not only from the top down, but from the bottom up. 

“Those who have control over the money, have control over the practices – our politicians and our chief executives in respect of the various sport organisations – and then on to the bottom level.” she continued.

Each club, each parish and each county board should have an inclusivity programme in place throughout the country, she said.

Townland and parish

“Ultimately, through that form of education we will find we have equality in sport.”

“I would challenge anyone to name me ten professional footballers in the Premier League who are gay. We are slowly getting there, but convince every townland and parish and county board to do it, it will flourish, it will grow. It’s like planting a seed. It needs to be fed properly, educated properly etc. And we will slowly but surely get there."

McNally added that, from the Bar’s perspective “we are doing as much as we can but we recognise that there is a lot more to be done to ensure inclusivity."

Another Bar Council member told the webinar that she has not encountered any cases of LGBT+ discrimination in sport, either as counsel or as an arbitrator on sport dispute solutions.

Moira Flahive told the 21 January OUTLaw event that she was unaware of any formal decisions or judgments either in Workplace Relations Commission (WRC) or the courts, but that is not to say that discrimination doesn’t happen.

Flahive, who is chair of the Leinster Rugby inclusivity committee, was speaking on addressing disputes and LGBT+ discrimination in sport.

Recourse

She said the Equal Status Acts offer broad avenues for recourse, in the case for instance of supporter abuse at a match.

“Any club against whom such a complaint is made would be compelled to carry out an investigation and answer such a complaint,” she said.

However, sports codes do their best to resolve differences under their own governing code, Flahive said, rather than resorting to courts of law.

“Issues of natural justice are important. But the substance of matters rather than their form is [also] important, and seeking to resolve internal disputes in such organisations. 

“Recourse to the courts should be a last resort and that only in the rarest of cases,” Flahive commented.

That position was the driving force behind the setting up of Sport Disputes Solutions Ireland (SDSI) by the Federation of Irish Sport, to which 64 sporting governing bodies have now signed up.

Dispute resolution

Sport Ireland requires that national governing bodies have a dispute resolution mechanism set out in their structures.

The objective is to provide a cost-effective, timely, and efficient mechanism for resolving sports disputes, while protecting the privacy and confidentiality of the parties involved. 

“Sports disputes involve lots of personalities,” Moira Flahive noted, and very often they are strong personalities.

Money is also a factor since many sporting organisations do not have a lot of it, she added, and would see that as a bar to using an external dispute resolution body.

SDSI offers cost-effective mechanisms, she continued, and will deal with all disputes except for doping and employment matters.

Should an LGBT+ dispute arise, such a mechanism would be ideal for hearing it, since the mediation and arbitration provided offer confidentiality, privacy and binding decisions.

Less harmful

This route will also be less harmful to future relationships than litigation, Flahive continued.

Susan Ahern BL, arbitrator at the Court of Arbitration for Sport, addressed the seminar on the evolving regulation of trans inclusivity in sport. Ahern said that testosterone levels are being used as a measure of gender by some sporting organisations for those wishing to be identified as a trans woman or a trans man.

“Effectively you have to make an application [to a sports organisation] and meet the criteria,” she explained.

Ahern said that the International Olympic Committee (IOC) owns the Olympic Games and decides the rules upon which athletes participate, if there is a rules conflict between a sport’s governing body and IOC rules.

If an athlete fell between the crevice of two sets of rules, such a case would be ripe for the Court of Arbitration to determine, Ahern said.

Richie Fagan, president of the Emerald Warriors Rugby Club spoke on ensuring inclusivity and openness in sports clubs.

He said that the Emerald Warriors club engages with Leinster branch clubs and gets great reaction and feedback.

Normalising 

“We were able to champion getting more talk around LGBT+ in sport and normalising it and we do see the need for having that on an ongoing basis,” he said. 

Fagan is seeing a change in diversity and inclusion in sporting organisation but tying this to financial aid is the way forward, he said.

“Getting access to money and grants is really speeding up the change there,” he commented, and this will help change the numbers of LGBT+ people falling away from participation in competitive sport. 

“We understood the importance of bringing the families in. Even at the half-time we were having [youth] minis because they might have a teammate who is struggling,” he added.

However, in this respect Susan Ahern said that different national sporting organisations may have very different capacities.

The more well-resourced bodies can make their “toolboxes” available to others, she suggested.

Funding

Moira Flahive said that linking funding to action on LGBT+ does help to focus minds, but there is no need to reinvent the wheel if different organisations are willing to share where they have in order to make progress.

Susan Ahern said that there is an ongoing consultation between athletes, experts and scientists about protecting the inclusivity and fairness of sport and also looking at safety considerations.

“There is a real potential that there could be three transgender women participating, in sports such as BMX, beach volleyball and weightlifting, in the Olympic Games in Tokyo,” she said.

Disrupt

The IOC is not making changes before the Tokyo Olympics because they want to avoid ethical and legal implications that could disrupt the game, Susan Ahern continued.

The IOC has recognised the balancing act between notions of fairness and inclusion, and the desire to meet and protect the women’s category, she said.

Rather than moving too fast to create a new centre of gravity for their guidelines the IOC have encouraged international federations to tailor their own rules, not just in relation to their sport, but in particular disciplines of their sport, Susan Ahern said.

That has had an impact she said, and a recent IOC meeting took account of new scientific knowledge of levels of testosterone, potentially reducing the allowable volume by 50% from the 2015 guidelines.

Testosterone

Certain sports such as cycling and athletics have adopted testosterone levels as an indicator, but these are not contact sports, she pointed out.

World Rugby has looked at developing an equitable, safe and evidence-based policy that balances inclusivity in sport with safety and fairness, in light of the growing evidence that testosterone suppression does not significantly impact muscle mass strength or power, Susan Ahern continued.

“If an athlete has gone through puberty as a male, the benefits of that will last beyond … and being stronger, taller and faster … will still remain.”

In October new World Rugby Guidelines said transgender women will no longer be able to participate at the elite level in rugby.

Safety and fairness

The ultimate conclusion was that safety and fairness could not be guaranteed for women competing against trans women, Susan Ahern said.

But this restriction was not imposed at national level, she added. 

Susan Ahern quoted Sharron Davies the swimmer, who has said that there is a fundamental difference between a binary sex one is born into and the gender one may identify as, and to protect women’s sports, those with male sex advantages should not be able to compete.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland