Some questionable claims have been made recently about gender, sex, what it means to be a woman, and women’s rights. But one statement from Justice Bromwich in the Tickle v Giggle case really takes the biscuit.
Set aside, if you can, Justice Bromwich’s declaration in the Federal Court that “on its ordinary meaning, sex is changeable” and consider here his claims around the “overt and deliberate” intention of the Australian Federal Parliament in 2013 to amend the Sex Discrimination Act 1984 to redefine sex. The logical consequence of this apparent intention is that women in Australia must now accept transgender women into their specifically female spaces and services.
But the evidence in Hansard and other contemporary records just isn’t there.
Read our full text with detailed footnotes
Nothing was said in the relevant Parliamentary debates about redefining ‘sex’ or ‘woman’ or about women’s rights, while the now famous Explanatory Memorandum (EM) to the Act notably excluded “special measures” – that is measures that previously allowed for female services and spaces – from the 2013 changes.
It is well worth remembering that the Australian High Court has upheld the ‘principle of legality’ that courts must not interpret legislation as diminishing rights, imposing new burdens, or altering the common law unless the legislation does so expressly in “unmistakable and unambiguous language.” As the High Court has previously explained: this presumption is not merely “a commonsense guide to what a Parliament in a liberal democracy is likely to have intended,” but “an aspect of the rule of law.”
These are complex matters but not beyond the capacity of the Federal Court, and the Australian Human Rights Commission (AHRC), which advised the Court, to understand. Nor should it be beyond their comprehension that the Actallows for both the protection of transgender people from discrimination and the maintenance of female only spaces – including in cyberspace, where the Tickle v Giggle matter was centred.
Had he and the AHRC examined the historical context more carefully, the Court would not have come to this egregious ruling that, left unchallenged, will have far reaching consequences for Australian women.
The Australian Parliament enacted the Sex Discrimination Act in 1984 to give meaning to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Its purpose was both to prohibit discrimination against women in defined areas such as employment and education, and to authorise ‘special measures’ to promote gender equality. The Act included in its interpretation section a definition of woman as “member of the female sex, irrespective of age.”
Parliament has since amended the Act, including in 1995 to clarify and encourage the use of ‘special measures.’ This has specific implications for Tickle v Giggle. As then Attorney General Michael Lavarch explained at the time, the 1995 amendments were to ensure that ‘special measures’ were “not to be treated as a form of discrimination, but to be understood as an expression of equality.”
In 1996, the Human Rights and Equal Opportunities Commissions (HREOC), the precursor to the AHRC, noted that these amendments were specifically designed to “to save initiatives to promote equality from attack on the ground of discrimination.” Its policy guidelines on special measures initiatives included examples of health and legal services run by women, for women – services to meet women’s unmet needs, including physiological needs. The Federal Court has also upheld the legality of permissible special measures, such as single-sex exercise classes for women.
The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 was introduced to Parliament in early 2013. The House of Representatives considered it in March and May and the Senate twice in June before the text passed both houses with minor amendments. The Senate Legal and Constitutional Affairs Committee received 90 submissions on the Bill, including one from the AHRC. It did not hold public hearings but sought to clarify some issues in writing with the Attorney General’s Department.
Attorney General Dreyfus and all those who spoke to the Bill in Parliament focussed their remarks on the Bill’s purpose in introducing new grounds for discrimination – on the basis of sexual orientation, gender identity, and intersex status – in the areas defined in the Act. No one mentioned the pre-existing rights of women – including special measures. And for that matter, no one discussed a possible new definition of woman.
Was this an oversight or a sleight of hand? Neither. Why? Because the Explanatory Memorandum to the Act makes clear that the introduction of the new grounds for protection against discrimination were to apply subject to the existing provisions in the Act for “special measures” to achieve gender equality. In fact, the EM makes this point repeatedly.
Asked to clarify certain aspects of the operation of the Bill by the Senate Committee, Department officials repeatedly ruled out any broader policy changes intended by the amendments beyond introducing the new grounds for protection from discrimination. The AHRC’s own submission (Submission 9) to the Committee noted the original purpose of the Act to eliminate discrimination and promote substantive gender equality but noted the proposed amendments impacted the former but not the latter.
And what of the ‘definition of woman’? Both Justice Bromwich’s Statement of Reasons in Tickle v Giggle and the AHRC amicus brief to the court make much of the fact that the Amendment Act repealed the definition of woman from Section 4 (interpretations) of the Sex Discrimination Act and elsewhere changed references from “opposite sex” to “different sex.” Both quote paragraph 18 of the Explanatory Memorandum:
These definitions [of man and woman] are repealed in order to ensure that man and woman are not interpreted so narrowly as to exclude for example a transgender woman from accessing protections from discrimination on the basis of other attributes contained in the SDA.
According to Justice Bromwich, the introduction of the new discrimination provisions, the change of all references to the “opposite sex” to ”different sex” and the repeal of the definitions of men and women “all point forcibly to an understanding of sex, as it is deployed in the SDA, that is changeable and not necessarily binary.”
But the Explanatory Memorandum’s comments on repealing the definition of ‘woman’ must be considered in conjunction with its repeated emphasis that the introduction of the new grounds for discrimination remained subject to the Act’s provisions for special measures aimed at achieving equality. This caveat was also clearly noted in the document’s explanation of the new operative provisions, including where the Bill amended the Act to refer to “different sex” rather than “opposite sex.”
As for pointing forcefully to an understanding that sex is changeable – there is no evidence of that in Hansard. And the notion that sex is not necessarily binary arose in the context of new provisions concerning “intersex status” but not elsewhere.
The Explanatory Memorandum also notes in the context of the repeal of the definition of man and woman, that “to the extent that these terms [man and woman] appear in the Act (and they do repeatedly) “they will take their ordinary meaning.”
So what was Parliament to understand as the “ordinary meaning” of woman? In the context of certain permanent exemptions in the Act, such as for sport, the ordinary meaning of woman still clearly carried the sense of biological difference. In the context of “special measures,” there is Commonwealth legislation addressing this concept, notably the Equal Opportunities (Commonwealth Authorities) Act 1987 and the Workplace Gender Equality Act 2012both of which define ‘woman’ as a “member of the female sex.”
Was it an oversight by officials from the Attorney General’s Department not to propose amending these Acts to reflect a fluid definition of woman, especially since the 2013 Bill amended four other Acts, including the Fair Work Act 2009 and the Migration Act 1958? It’s possible. But a far more plausible explanation is that Parliament intended its 2013 amendments to apply solely to discrimination matters as defined in the Act and not to special measures. To assume otherwise is to suggest that Parliament had been deliberately untrue to the 1995 amendments that special measures are not to be considered a form of discrimination but rather an expression of equality.
Let’s revisit Justice Bromwich’s statement of reasons in Tickle v Giggle. Because he feels the 2013 changes to the Sex Discrimination Act were “overt and deliberate” and “point forcefully to an understanding of sex, as deployed by the SDA, that is changeable and not necessarily binary,” he concludes any interpretation that ‘special measures’ aimed at advancing substantive equality between men and women provides a “shield from gender identity discrimination” is “untenable, unworkable, and nonsensical.”
Seriously? If these changes were so clearly intended to alter the application of special measures, why did the AHRC state in its submission to the Senate Committee that special measures would be unaffected? If these changes were so “overt and deliberate,” why was there no commentary at the time – or even some objections – given the amendments would modify the pre-existing rights women enjoyed regarding ‘special measures’?
Yet, this seemingly overt and deliberate interpretation did not occur to anyone, including many human rights lawyers – who tend to be on the ball – who made submissions on the Bill. Only two submissions noted a potential risk to women’s rights: the Equality Rights Alliance cautioned (Submission 21) that the amendments should not diminish protections based on sex, but then concluded that “in our view, the current Bill does not decrease that protection”. Women’s Legal Services NSW made a similar observation (Submission 78).
If this were an overt and deliberate intention, where was the Office of the Status of Women within the Department of Prime Minister and Cabinet, the government’s key agency responsible for advising on policies impacting women? Surely they would have understood the potential impact of the Amendments on ‘special measures’ aimed at achieving equality – regardless of their views on expanding the Act’s discrimination prohibitions to cover sexual orientation, gender identity, and intersex status. But no. An FOI inquiry revealed the Office provided no written advice to the Prime Minister on the Bill, nor did it correspond with officials from the Attorney General’s Department about it.
So what can we expect next?
At the time of writing, it’s not known if the High Court will consider the case of Tickle v Giggle. If it does, here’s hoping it upholds the principle of legality and rejects the notion that Parliament redefined ‘sex’ as a concept that is “changeable and not necessarily binary” in all circumstances. Most importantly, it must also recognise that Parliament did not intend to diminish the rights that Australian women previously enjoyed to female spaces and services, and certainly did not do so in “unmistakable and unambiguous language.”
Parliament must also now revisit the Sex Discrimination Act to remove any possible ambiguity surrounding the rights of Australian women to special measures. It may be necessary to recognise the circumstances under which women are entitled to ‘special measures’ – in other words where discrimination is lawful to ensure equality.
The starting point must be those circumstances where women and girls are vulnerable or disadvantaged – where their human rights are at risk – because of their sex, such as in rape crisis services and prisons. It is also imperative to ensure the safety of women and girls in other circumstances – such as toilets and change rooms, and in health care. The law must also protect the freedom of association of lesbians who are vulnerable to the predations of some men who may claim a lesbian identity to gain access to lesbian spaces. It should also extend to allow women to seek safety and privacy in cyberspace.
It is more than likely some commentators will characterise this call as ‘anti-trans.’ It is no such thing. Laws and policies that lessen stigma and expand protections against discrimination on the basis of gender identity are welcome – including the 2013 amendments as they were intended and understood at the time.
A rational and compassionate society – and its representatives in Parliament – should be able to grasp the distinction between discrimination in areas defined by the Sex Discrimination Act and the rights afforded by the Act to women through special measures, maximising protections against the former while respecting the latter.
Read our text with detailed footnotes, below.
