Sex discrimination claim sails on

A 16 year old female sailor, who was excluded from participating with her father in a ‘men’s 49er class’ sailing event at a world sailing regatta held in Melbourne in December 2014, has won the right to pursue a sex discrimination claim against Yachting Victoria.

The Federal Circuit Court recently dismissed an application by Yachting Victoria seeking to have the discrimination claim struck out. In its application to have the claim dismissed, Yachting Victoria argued that the sex discrimination claim was hopeless, bound to fail or had no reasonable prospect of success on the basis that (among other things):

• Yachting Victoria did not provide goods or services or make a facility availability for the purpose of the relevant provisions of the Sex Discrimination Act 1984 (Cth) (Act)
• even if it did, the applicant’s boat, and not the applicant, was excluded from participating in the regatta and
• its actions were actions contemplated by the Notice of Race with which the applicant agreed to abide as a participant in the regatta.

The Court rejected Yachting Victoria’s arguments and allowed the matter to proceed on the basis of a claim that:

• Yachting Victoria provided a service by acting as the organising authority for the regatta and
• it was arguable that Yachting Victoria unlawfully discriminated against the applicant on the basis of her gender.

Interestingly, it is not unlawful to discriminate on the ground of sex by excluding a person from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant. To rely on the defence, Yachting Victoria will need to establish, by credible evidence, that there is a difference between the men‘s event and the women’s event in terms of the type of boats used and the role that strength, stamina and physique of competitors has in relation to those events.