Would Sam Kerr have been charged if she were a man – or white – or straight?

This opinion piece by Sex Discrimination Commissioner Dr Anna Cody and Race Discrimination Commissioner Giridharan Sivaraman was published in The Guardian.
 

Imagine how this case would have played out for the thousands of women of colour who don’t have Kerr’s platform, financial resources or legal support.

Sam Kerr is one of the most celebrated football players in the world. Captain of the Matildas, she became a household name – and the inspiration for children across Australia – as she led her team to victories during the 2023 Women’s World Cup.

She is a well-loved and well-resourced woman of colour at the peak of her career. Yet despite all of this, she was stripped of her agency by authority and dragged through the courts in a case that should never have proceeded.

Imagine how this plays out for the thousands of women of colour who don’t have Kerr’s platform, financial resources or legal support. Many wouldn’t have had the means to fight back. Many wouldn’t have been believed.

From the moment the allegations against Kerr surfaced, public scrutiny here and in the UK was quick and in many cases unforgiving. She was called aggressive, racist and her actions immediately criticised without context or understanding. But history shows us that men in sport – and society – are given far more leeway. We’ve seen male athletes do far worse, yet they are granted second, third and even fourth chances. Kerr was put on trial.

Men are more likely to be allowed to make mistakes. Women – especially women of colour and women who don’t conform to passive, demure stereotypes, who do not bow their head meekly and apologise – are often punished. And, as many commentators have previously noted, it is far harder for women to recover from public shaming than men.

In Australia, the more you fit into what society sees as “white”, the closer you are to power – and with this proximity to power you’re assumed to be credible, respectable, and deserving of protection. The further away, the more likely you are to be questioned, scrutinised and disbelieved.

This case exposes just how little racial literacy exists in public discussion, and how important this kind of learning is in institutions. In Australia, we see this in the ongoing targeting of Aboriginal and Torres Strait Islander communities who face disproportionate rates of incarceration and harm within our legal system, and how Indigenous women are also often misidentified as perpetrators of family violence.

We need a deeper understanding of how gender and race go together to create injustice in legal systems. The commission’s proposed National Anti-Racism Framework focuses on the importance of understanding how different forms of discrimination overlap. It would improve education about race and racism, and ensure police receive proper anti-racism training.

This case played out in the UK but the broader issues are equally relevant in Australia: it showed example after example of systemic racism and sexism: Kerr being patronised as “little missy” while a white man in power failed to recognise his privilege; two queer women corroborating each other’s testimony and yet their voices being dismissed in favour of one man’s. No acknowledgment of the fear experienced being locked in a car by a man – despite the very real threats these situations pose for women.

We know that women’s experiences, especially women of colour or queer women, are routinely ignored or minimised by legal systems. Kerr – by her own admission – did not handle the situation well. But would she have been charged if she were a man? Or white? Or straight?

Women already face so many legal barriers when it comes to speaking up against discrimination or violence. Statistics show that women do not report violence against them, partly because they don’t trust how the system will deal with them.

It forces us to ask who really has access to justice in systems which still centre white men’s experience.

In the end, credit must go to the jury – a diverse group of everyday people who heard the evidence and found her not guilty. This case is a reminder of the importance of juries that reflect the real world, rather than systems of power designed to uphold privilege.

Power and privilege shape who is believed, who is punished and who gets justice. Until we dismantle these systemic inequalities, cases like this will continue to happen – not just to high-profile women of colour like Kerr, but to those whose voices are rarely, if ever, heard.