We thank Michael Foran for his recent and insightful analysis of our previous post. We maintain that:
- Parliament’s intention was to amend the law to provide protections against discrimination based on sexual orientation, gender identity, and intersex status, within the Act’s defined areas. The removal of the definition of ‘woman’ from the Act served this purpose, as outlined in paragraph 18 of the Explanatory Memorandum.
- Parliament intended to retain the ordinary understanding of ‘sex’ for all other purposes of the Act, as also stated in the Explanatory Memorandum.
- The Sex Discrimination Act serves multiple purposes: upholding fundamental rights (as per CEDAW, ICCPR, etc.), offering protection from discrimination, and providing ‘Special Measures.’ Parliament did not intend to alter the application of ‘Special Measures.’ These measures, preserving the ordinary meaning of ‘woman,’ were to remain unaffected. Australian women had the right to special measures on the basis of being female before 2013, and the amendments were not designed to remove this right.
Respectfully, we disagree with his concluding paragraph that AAWAA argues that these amendments were “intended solely to alter the law for the purposes of provisions relating to intersex status.” Our reference to intersex status in the Explanatory Memorandum was meant to illustrate how the Memorandum has been selectively quoted to imply Parliament intended more sweeping changes.
Read our original post, which includes a version containing detailed footnotes.
