The Australian Human Rights Commission was established to promote and protect human rights for all Australians, with the Sex Discrimination Commissioner having a specific mandate to address sex discrimination and promote gender equality under the Sex Discrimination Act 1984 (SDA). However, the Commission’s current apparent approach to sex-based rights has created widespread legal uncertainty for service providers, sporting clubs, and women’s organisations seeking to maintain female-only spaces. This analysis draws on our systematic monitoring of AHRC decisions, actions, and statements over multiple years through formal submissions, FOI requests, and complaints to UN bodies.
Legal interpretation and precedent-setting
The Commission’s recent interventions in key legal cases have established troubling precedents for women’s sex-based protections in Australia. In the landmark Tickle v Giggle case, the AHRC’s submissions to the Federal Court argued that the concept of ‘women’ under CEDAW includes trans women, based on the Commission’s interpretation of CEDAW Committee commentaries. This interpretation effectively recasts international human rights law in a manner that may conflict with established legal precedent and the original intent of conventions designed to protect women on the basis of our biological sex.
The practical consequences of this approach are significant. Women’s organisations report increasing concerns about their legal position when seeking to maintain female-only spaces, services, or activities. Service providers, sporting clubs, and women’s groups all express the worry that biological sex distinctions — previously understood as lawful under permanent exemptions and special measures provisions in the SDA — may now be legally precarious if challenged by males asserting a female gender identity.
This legal jeopardy arises not from legislative change, but from the Commission’s interpretative approach that prioritises gender identity considerations over sex-based protections in circumstances where these interests may conflict.
International law and obligations
As already hinted, the Commission’s interpretative approach raises questions about consistency with international human rights law. The UN Special Rapporteur on violence against women and girls recently confirmed that ‘rights on the basis of sex must not be subordinated to other non-discrimination grounds.’ This principle suggests that in circumstances where sex-based and gender identity protections conflict, sex-based rights must not be rendered secondary.
But perhaps more significantly, Australia’s obligations under CEDAW specifically protect women as a biological sex class, recognising both biological as well as socially and culturally constructed differences between women and men according to General Recommendation 25. The Convention’s articles 23, 24 and 2 indicate there can be no basis for reversing or weakening anti-discrimination measures designed to benefit persons of the female sex, including through application of ‘gender’ concepts.
AAWAA and other women’s organisations have formally raised these concerns with UN bodies – including the CEDAW Committee – through detailed submissions documenting how current approaches by institutions such as the AHRC may breach Australia’s international human rights commitments.
Consultation and democratic participation
The Commission’s approach seemingly extends to excluding women from policy consultation. Freedom of Information documents released regarding the AHRC’s ‘sex files’ project revealed extensive consultation with LGBTQ advocacy organisations, but minimal evidence exists of equivalent engagement with women’s groups regarding changes that would fundamentally affect sex recognition and women’s legal protections.
Similarly, the 2013 amendments to the Sex Discrimination Act, which removed biological definitions of ‘woman’ and ‘man,’ proceeded without documented consultation with women’s organisations about the potential impact on female-only spaces and services – a pattern of exclusion that continues to affect the AHRC’s current approach. This pattern of limited engagement with affected women continues to concern advocacy groups seeking meaningful participation in policy development.
Most fundamentally, however, such approaches conflict with Australia’s obligations under Article 7 of CEDAW, which requires states to ensure women’s equal participation in political life and the formulation of government policy affecting our interests.
The Lesbian Action Group decision
The Commission’s handling of the Lesbian Action Group’s application for an exemption to hold female-only events illustrates broader concerns about the AHRC’s approach to women’s associational rights. Despite acknowledging that ‘lesbians in Australia have faced significant structural and entrenched discrimination,’ the AHRC rejected the application for events excluding males who identify as lesbians.
The Commission’s reasoning — that it was not “appropriate and reasonable to make distinctions between women based on their biological sex at birth or transgender experience at a community event of this kind, and to exclude transgender lesbians from a community event of this kind” — effectively prevents lesbian women from exercising freedom of assembly on the basis of biological sex.
Members of the Lesbian Action Group have noted they have been unable to publicly advertise lesbian-only gatherings for decades, resulting in smaller numbers and reduced ability to reach younger lesbians. The AHRC’s decision compounds these existing restrictions on women’s freedom of association and assembly. And, of course, this decision has broader implications for women’s political organisation and advocacy.
Impact on vulnerable women and service provision
The weakened safeguarding created by the Commission’s approach goes further, however, and has particular impacts on services for vulnerable women. Crisis centres, refuges, and trauma-informed services report confusion about their legal position when maintaining female-only provision for women who have experienced male violence.
The Commission’s ability to provide clear guidance to service providers about when sex-based distinctions are lawful and appropriate is also in doubt. Women’s services that have historically operated on trauma-informed principles recognising male violence patterns may face challenges in maintaining their service delivery models.
And the Commission has not adequately addressed how its interpretative approach affects women’s refuges, female-only hospital wards, or other environments where female-only provision may be essential for women’s dignity, safety, privacy, and recovery from male violence.
Sporting exemptions and guidance
Another area that the AHRC has failed to adequately address is the protection of women and girls in sport and the protection of female-only sporting categories. Section 42 of the Sex Discrimination Act contains permanent exemptions specifically designed to protect fair competition in sport by permitting sex-based categories. However, sporting organisations are receiving incomplete guidance about these protections, with emphasis placed on inclusion whilst existing legal protections for women’s sport receive insufficient attention.
This guidance gap leaves local sporting clubs in a precarious legal position when maintaining female-only sporting categories. The Commission’s failure to provide clear, accessible guidance on lawful exemptions creates unnecessary legal risk for community organisations seeking to protect fairness in women’s sport.
Institutional processes and accountability
This raises the question whether the AHRC could be exercising additional statutory powers regarding SDA interpretations. The AHRC has statutory powers under section 11(1)(e) of the Australian Human Rights Commission Act 1986 to examine whether current interpretations of the Sex Discrimination Act are consistent with human rights obligations – powers that the Commission appears reluctant to use to ensure sex-based protections for women and girls. This examination power could provide transparency and public accountability regarding how women’s sex-based rights are being balanced against other considerations across many areas of Australian public life.
The inadequate guidance facing women’s organisations and service providers regarding their rights to maintain female-only provision would justify such an examination under the Commission’s own guidelines. But the Commission’s failure to initiate this process despite documented concerns by women’s groups raises questions about institutional responsiveness to legitimate advocacy efforts seeking clarity and accountability.
In such an instance, Parliamentary intervention may be necessary to clarify the Sex Discrimination Act’s operation regarding sex-based protections and to ensure the Commission fulfils its statutory obligations to all protected groups. The Attorney-General’s power to direct formal investigations under section 11(1)(e) of the AHRC Act provides one mechanism for compelling institutional accountability, given the documented legal erosions of rights facing women’s organisations and service providers.
The need for transparency and reform
The institutional patterns we have identified, documented, and communicated over the years suggest that the Commission may have adopted an interpretative approach that systematically prioritises gender identity considerations over women’s sex-based protections, without adequate transparency about how this balance is determined or accountability for the consequences.
Women’s organisations are entitled to clear guidance about when biological sex distinctions remain lawful under Australian anti-discrimination law. Service providers require certainty about their obligations and protections when maintaining female-only provision. The Commission’s current approach undermines legal protections rather than provides the clarity that effective human rights protection requires.
But the fundamental question remains whether the Commission is effectively protecting the sex-based rights of women and girls, or whether institutional drift has compromised its ability to fulfil this essential mandate.
