As Australian courts test legal definitions of gender, what will it mean for sex discrimination laws?
For more than a decade, it has been illegal to discriminate in Australia on the basis of gender.
Now a series of cases at the federal level are testing that principle – and raising questions about what it means to be a woman.
Last Friday, in a landmark win for trans rights, a federal court justice ruled that transgender woman Roxanne Tickle had been indirectly discriminated against when she was barred from social media platform Giggle for Girls after the firm and its chief executive, Sall Grover, said she was a man.
And on Monday, the Victoria-based Lesbian Action Group (LAG) will ask the administrative appeals tribunal to overturn the Australian Human Rights Commission’s October decision that it cannot exclude transgender or bisexual women from its events.
Both cases centre around the same part of Australia’s Sex Discrimination Act, and both cases raise the question: can gender discrimination ever be lawful?
Judge’s decision ‘recognised law and norms have developed’
The Sex Discrimination Act – which was created in 1984 – was amended in 2013 to make it unlawful to discriminate against a person on the basis of sexual orientation, gender identity or intersex status. However, the act does not include a definition of man, woman or sex.
There are provisions in the SDA that carve out space for lawful discrimination for the purpose of advancing equality. One example of this is affirmative action in workplaces and universities. Another example is the controversial religious discrimination laws that allow some schools to discriminate against LGBTQ+ students and staff.
During the three-day Tickle v Giggle trial in April, some supporters of Giggle wore purple, white and green of the suffragette movement and picketed the Sydney court house.
Giggle claimed the discrimination was lawful as a special space for women was needed to address historical disadvantage. Giggle and Grover’s barrister asserted “biological sex must prevail” and, time and time again, Grover refused to address Tickle as a woman – part of what federal court justice Robert Bromwich later called “an exercise in blanket denial”.
Tickle’s counsel, on the other hand, maintained that sex and gender are social and psychological and that “biological sex is relevant but not determinate”. Tickle has lived as a woman since 2017, has undergone gender affirmation surgery and has a female birth certificate.
The judge found sex is changeable and also went a step further, finding that how a person identifies and is recognised socially is enough to access gender identity protections.
“It’s as broad an interpretation as the judge could have made, and that’s why it’s really significant – it’s really beneficial for coverage against discrimination for the trans community,” says Maria Nawaz, general counsel for the Grata Fund, which supported Tickle.
“The judge has recognised the law and norms in society have developed … trans women are women and should have access to services on the same basis as all women based on their self-identification.”
The Tickle decision is likely to pave the way for reforms in New South Wales, where gender-affirming surgery is required in order to update a birth certificate, according to Alastair Lawrie, director of policy and advocacy at the Justice and Equity Centre.
Freedom of speech and association, or transphobia?
On Monday, the tribunal is likely to look to the precedent set by Bromwich as it assesses the LAG’s appeal.
The LAG argues that a special exemption from usual gender discrimination laws would help them to substantively improve equality – and that freedom of speech and freedom of association are essential for the advocacy and wellbeing of lesbians. They maintain that a trans woman is male and so cannot be a lesbian.
They do not explain how they would police their female-only events.
In October, the Australian Human Rights Commission found it was “impossible to tell who is ‘born female’ and who is not without intrusion on an individual’s privacy, bodily integrity, and dignity”. The commission found trans lesbians would be disproportionally negatively affected by an exemption, referencing studies that found transgender and gender diverse people reported high levels of harassment and social exclusion.
Ultimately, it was “not persuaded it is appropriate and reasonable to make distinctions between women based on their biological sex at birth or transgender experience”.
Carole Ann from the LAG said the decision, forcing the inclusion of “male-bodied people who identify as women and think they are lesbians”, was “authoritarian and oppressive”.
Anna Kerr, principal solicitor with the Feminist Legal Clinic, which is representing the Lesbian Action Group, says the finding against Giggle means freedom of speech and association protections for lesbians are more important than ever.
“Women want to be able to meet and say, ‘Well, what do we think about this? What does it mean for lesbian groups? What does it mean for young lesbians? What does it mean for women’s spaces and services and sport and women’s jails, women’s domestic violence refuges?’” she said.
Eloise Brook, the incoming CEO of AusPATH, the national peak body representing trans health, rights and wellbeing, cautions that lesbians are not a monolithic group – and that the rights of one minority group must not come at the expense of the rights of another group.
“It’s only a very small section of lesbians who have a problem with trans women,” she says.
The Equality Australia CEO, Anna Brown, agrees. “Our trans sisters fought alongside us to ensure many of the freedoms and rights we enjoy today.
“Transphobia has no place in our community and we roundly reject attempts to sow division and fuel hate by groups seeking to exclude people who don’t fit into their narrow concept of ‘womanhood’.
“They do not represent the vast majority of lesbians, feminists or women more generally.”
Grappling with the ‘ossified binary’ of the law
Karen O’Connell, an expert in discrimination law with the University of Technology Sydney’s law faculty, says jurisdictions around the world are confronting the entanglement of sex and gender, with laws based on an inflexible sex binary often not sufficient to protect trans people.
“Sex is so often seen as an ossified binary with a set meaning that everyone agrees on, and with a clear scientific underpinning that is also not contested. All of that is just not accurate,” she says.
“We’re not the only jurisdiction that is grappling with this. Around the world, lawyers and activists and advocates are watching to see how these cases proceed.”
It is likely many more similar cases will reach Australian courts – the cost protection bill, currently before the Senate, aims to remove the cost risk in all discrimination claims at the federal level.
Perhaps it is telling that while Tickle sought an apology from Grover, Bromwich decided it was “futile” to order an “inevitably insincere apology”.
“I brought my case to show trans people that you can be brave, and you can stand up for yourself,” Tickle said after the judgment. “I know that I can now get on with the rest of my life.”
