Fernwood's Policy on 'Biologically Born Females' and Transgender Women

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Elara felt “taken aback” and “wounded” after being refused admission to the women-only gym Fernwood Fitness for not being a “biologically born female”.

Residing in Melbourne, Elara, a transgender woman, was attracted to a location within the national gym chain based on recommendations from her wife and friends. She had generally found women’s spaces to be more welcoming and accommodating towards trans women compared to mixed-gender spaces.

“I find that it’s typically more straightforward for trans women in women’s spaces,” Elara expressed to SBS News. “My experience has shown that women’s spaces are more welcoming.”

However, when she inquired via text about becoming a member as a transgender woman, she was informed by a manager at Fernwood Fitness in Melbourne that “the Fernwood policy does not include transgender women”.

A screenshot of a text message against a black background.

Elara received a notification from a manager at a Fernwood Fitness gym in Melbourne, stating that only “biologically born females who identify as female” are allowed to join the women-only gym. Source: Supplied

Fernwood Fitness is one of the leading women-only gym chains in Australia. They have over 70 clubs across Australia and over 90,000 members.

“Fernwood offers membership only to biologically born females who identify as female,” the message, which has been verified by SBS News, read.

Elara later shared her experience on Reddit, prompting an outpouring of support — and several anonymous accounts from other transgender women who claim they too were turned away by Fernwood.

“I found this out last year when I tried to join,” one user wrote.

After the text exchange, Elara said she was phoned by the national CEO of Fernwood, which the company has confirmed.

“I was just in shock,” Elara shared. “My experiences being a trans woman in Melbourne so far have shown that the level of negativity, opposition, and exclusion we often anticipate from the media isn’t what I’ve encountered.”

“I guess I got a little bit forgetful that the world is still like that,” Elara said.

“It really took me aback and made me think about all the rights that we think we have here … to just find out that some people can be like, ‘nah,’ that company policy is to just say no.”

Is it legal to exclude trans women from women-only spaces?

The federal Sex Discrimination Act 1984 makes it unlawful to treat someone unfairly because of their sex, sexual orientation, intersex status, or gender identity.

According to the Australian Human Rights Commission (AHRC), gender identity includes “the way people express or present their gender and recognises that a person’s gender may be an identity other than male or female”.

“Terms commonly used to describe a person’s gender identity include trans, transgender and gender diverse,’ AHRC’s website reads. “It does not matter what sex a person was assigned at birth or whether the person has undergone any medical intervention.”

Professor Paula Gerber, an expert in human rights law at Monash University, said while women-only gyms are lawful both in Victoria and nationwide, excluding trans women is not.

“Fernwood is perfectly entitled to have a women-only gym,” she told SBS News. “But women include trans women in Australia.”

Paula Gerber, a professor in human rights law at Monash University, said that while women-only gyms are lawful in Australia, excluding trans women from them is not. Source: Getty / Kazuma Seki

“It is not lawful to have a women’s only venue and say that’s only for people who were described as female on their birth certificate,” Gerber said.

“The law says trans women are women.”

Every Australian state and territory has its own anti-discrimination laws that operate alongside federal legislation.

In Victoria, where Elara lives, it’s against the law to discriminate against people based on gender identity “that may or may not be the same as the sex you were designated with at birth”, under the Equal Opportunity Act 2010.

But organisations are permitted to apply for temporary exemptions to the Act, which allows discrimination of any protected characteristics — which include gender identity — to be lawful, provided it would help the Act’s goal of promoting equal opportunity.

“For example, some clubs may provide benefits for members of particular age groups or single sex,” according to the Victorian Equal Opportunity and Human Rights Commission’s website.

Fernwood is perfectly entitled to have a women-only gym. But women include trans women in Australia.

Paula Gerber, human rights law expert

In 2021, Fernwood sought an exemption from Queensland’s Anti-Discrimination Act 1991, concerned about members’ religious freedom and psychological safety, as well as fears that their women-only fitness model “could give rise to a complaint by a man that Fernwood is directly discriminating against men”.

The commission granted the exemption for five years, saying female-only fitness clubs were a “welfare” and “equal opportunity” measure.

It’s unclear on what grounds Fernwood Fitness is excluding trans women, but at present, their publicly available 11-page membership terms and conditions do not reference sex or gender eligibility criteria.

Additionally, they operate under a franchise model, making it difficult to ascertain how widespread their policy is.

SBS News has contacted Fernwood for clarification on this issue but has not received a response.

Fernwood defends policy as necessary for ’emotional and physical safety’

In a statement provided to both SBS News and Elara, Fernwood Fitness said they had “a responsibility to consider the needs of its broader member community”, adding that female-only spaces “based on sex” were necessary to protect members’ “emotional and physical safety”.

“Fernwood Fitness proactively reached out to Elara to acknowledge her as an individual and to talk about her experience,” the statement provided to SBS News read.

“This outreach was made with genuine care, recognising the personal nature of her enquiry,” the statement read.

“Fernwood appreciates the courage it can take to enquire about a membership as a transgender woman and acknowledges that the experience may have been hurtful or disappointing. Fernwood Fitness extends its sincere empathy in response.

“At the same time, Fernwood Fitness has a responsibility to consider the needs of its broader member community.

“A significant number of Fernwood Fitness members come from backgrounds where experiences of domestic violence, sexual assault, cultural beliefs, or religious practices necessitate access to female-only spaces based on sex.

“For many of these women, such spaces are not a preference but a requirement for their emotional and physical safety and for accessing the health and fitness services they need.

“This is not a reflection on personal identity, but rather a commitment to maintaining the integrity of a space that many women rely on. Fernwood is currently reviewing all relevant legal requirements.”

‘Trans women are women’, legal expert says

Gerber said these arguments may not hold legal weight when used to exclude trans women.

A woman in a white shirt and red rimmed glasses is smiling.

Paula Gerber, a professor of human rights law at Monash University, said Fernwood’s argument may not hold legal weight when used to exclude transgender women. Credit: Paula Gerber

“Women include trans women in Australia — that’s very clear from the decision in Tickle and Giggle and the Lesbian Action Group,” Gerber said.

The Federal Court ruled: “The acceptance that Ms Tickle is correctly described as a woman, reinforcing her gender identity status for the purposes of this proceeding, and therefore for the purposes of bringing her present claim of gender identity discrimination, is legally unimpeachable.”

Protesters hold a sign with the pink, white and blue transgender flag colours and text reading "TERFs off our turf".

Supporters of Roxanne Tickle hold a sign outside the Federal Court of Australia in April 2024. TERF stands for ‘trans-exclusionary radical feminist’. Source: AAP / Bianca De Marchi

In 2023, the Lesbian Action Group applied for an exemption from the Sex Discrimination Act to host regular publicly advertised ‘lesbians born female only events’.

Gerber, who acted as an expert witness for the AHRC, said the group argued they needed to be protected from, as she puts it, “men pretending to be women”.

The commission rejected the application for exemption, saying: “The commission is not persuaded it is appropriate and reasonable to make distinctions between women based on their biological sex at birth or transgender experience, and to exclude transgender lesbians, from a community event of this kind.”

Gerber said: “The response from the Human Rights Commission and the [Federal Court] tribunal is that the threat is not from trans women. The threat is from men.”

She said these cases may influence what the law says about Fernwood’s exclusion of trans women: “That’s contrary to what the law says — the law says trans women are women.”

Trans safety in women’s spaces

Elara said one of the most upsetting parts of the conversation was the implication that she, as a trans woman, might pose a safety threat.

“People who are saying that we need to exclude trans women for safety aren’t really talking about women’s safety. They’re talking about an ideological position about whether or not trans women are women,” she said.

A spokesperson from Zoe Belle Gender Collective (ZBGC), a trans and gender diverse-led advocacy organisation based in Victoria, told SBS News: “Trans women and cis women have much in common, including being disproportionately impacted by men’s violence.”

“The same drivers of violence that impact cis women equally drive violence against trans women, including rigid gender norms and dominant forms of masculinity,” a ZBGC spokesperson said.

A chart showing psychological distress by gender identity.

A La Trobe University study found transgender and non-binary people were more likely to experience high psychological distress than cisgender people. Source: SBS News

Trans women, trans men and non-binary people were also more likely to experience very high psychological distress compared to cisgender women and men, according to La Trobe University’s Private Lives 3 report from 2021.

A 2023 survey of 3,099 transgender people conducted by the Trans Justice Project and the Victorian Pride Lobby found one in two participants had experienced anti-trans hate. One in ten had experienced anti-trans violence, and nine in ten had witnessed online anti-trans abuse.

Trans women and cis women have much in common, including being disproportionately impacted by men’s violence.

Spokesperson, Zoe Belle Gender Collective

Internationally, a 2021 study by the Williams Institute at the University of California, Los Angeles School of Law found transgender people were over four times more likely to experience violent victimisation than cisgender people, or those whose gender identity corresponds with the sex assigned to them at birth. This included higher rates of violence than both cisgender men and women.

Meanwhile, analysis by the Australian Bureau of Statistics found 97 per cent of all sexual assault offenders were male, according to data recorded by police agencies in Australia.

“When incidents of trans exclusion occur, it can reinforce the ideas that we don’t belong, that we are not worthy of support, or that the violence perpetuated against our community does not matter,” a ZBGC spokesperson said.

“These incidents may also contribute to some trans women feeling unsafe to access the services our society has created to support victims of violence.”

‘Trans women are not a threat’

Gerber also warned policies excluding trans women can lead to harmful “policing” of women’s bodies.

“The privacy that’s being violated is trans women having to prove their gender,” she said.

“We’re seeing situations where complete strangers feel entitled to challenge someone’s right to be in a space, based solely on how they look.

“This is what we need to avoid.

“If somebody says they’re a woman, then they are a woman.”

She also questioned traditional narratives that trans women were threats to women’s safety.

“Men pretending to be women so that they can get into a women’s only gym and assault someone … that’s not what trans women are doing,” Gerber said. “Trans women are just trying to be themselves and live their authentic life. They’re not a threat.”

‘We thought we were better protected’

Gerber said while Australia has some of the strongest legal protections for trans rights in the world, enforcing these laws can involve making an individual complaint to your state’s commission.

“It takes a huge toll to take on a big company like Fernwood,” she said.

“But that’s the only way the law gets enforced in these situations where there are breaches of the anti-discrimination provisions.”

For Elara, the experience has left her feeling disillusioned with the protections she thought were in place.

“I did think we were better protected in Australia … we thought our legal protections were stronger than apparently they are.

“It feels strange when the discrimination paraded in the news contaminates my own life so directly. I wandered into someone’s culture war because I wanted to try yoga.”

LGBTIQ+ Australians seeking support with mental health can contact QLife on 1800 184 527 or visit qlife.org.au. ReachOut.com also has a list of support services.

Intersex Australians seeking support can visit Intersex Peer Support Australia at isupport.org.au.