The application of this statutory provision will vary from sport to sport and the Tribunal wishes to say clearly at the outset that the conclusion arrived at on the facts of this case in regard to the sport of softball at the junior level should not necessarily be regarded as a decisive precedent in other cases. Each case must be decided upon its own particular facts, having regard to the nature of the sport and the nature of the competitive activity. However, in reviewing the evidence before the Tribunal in regard to softball, the Tribunal notes at the outset that there seems to be general agreement that at levels of play above the age of 16 and in the elite competition there were significant differences in their respective physical capacities between male and female players which worked to the advantage of the male players. It also seemed to be common ground that there was no significant differences between the respective genders below the age of 13 and this was reflected in the practices of the association and in the National Junior Sport Policy. The critical question was whether the special statutory provision should be applied in the 13-16 age group.

The Tribunal was of the view that considerable weight should be attached to the expert evidence of Dr Ackland. He gave his evidence in a convincing manner and it was apparent both from his report and from the research data he drew upon that significant differences do begin to emerge in regard to strength, stamina and physique in the 13-16 age group. This provided him with a foundation for his opinion, having regard to the elements of play in softball, that boys in this age group would have an advantage, even though there might be individual female players from time to time who could compete on equal terms.