On 18 February, AAWAA, the Coalition of Activist Lesbians, and the Feminist Legal Clinic met with the President and Commissioners of the Australian Human Rights Commission to discuss the operation of Australia’s sex and gender framework and its implications for women’s sex-based protections.
We requested this meeting with the AHRC President Hugh de Kretser, Sex Discrimination Commissioner Anna Cody, and Human Rights Commissioner Lorraine Finlay to set out our concerns that the cumulative effect of current laws, policies and administrative practices relating to sex and gender has resulted in uncertainty about the scope and application of women’s sex-based protections and rights.
The meeting provided an opportunity to place our concerns and supporting evidence directly before the Commission.
What we put to the Commission
The core of what AAWAA put to the Commission was not new. As readers of this blog will know, AAWAA has been mapping the de facto sex and gender framework that has grown in piecemeal fashion for over a decade-and-a-half. Early building blocks include the AHRC’s own 2009 ‘Sex Files’ report, the 2013 amendments to the Sex Discrimination Act, and the Australian Government Guidelines on the Recognition of Sex and Gender, which were developed following AHRC recommendations and whose adoption the Commission actively supported.
More recently, tranches of sex self‑ID legislation have been introduced across states and territories, alongside national sport guidance that, in practice, encourages male‑bodied participation in female categories as the default, and revised Australian Bureau of Statistics standards for sex and gender that sideline clear biological sex data in favour of self‑described gender categories. Key decisions such as Tickle v Giggle in the Federal Court and the AHRC’s LAG exemption refusal have further shaped the practical operation of these settings. Taken together, these measures now function as a de facto framework for sex and gender in Australia. But it is a framework that has never been examined as a whole for its effects on women and girls as a sex class.
Against this background, we set out for the Commission how this framework now operates in practice and why its cumulative effect now warrants closer examination.
We explained that this framework is generating real uncertainty about when female‑only spaces, services and sport are lawful, how sex‑based protections and rights interact with gender identity provisions, and how this sits with Australia’s obligations under CEDAW. This uncertainty is not theoretical but has practical consequences for women and girls.
Why definitions matter for women, including lesbians
At the start of the meeting, after some brief opening remarks that we used to frame the agenda, the Feminist Legal Clinic addressed the definitional foundations, highlighting the absence of a clear statutory definition of sex, the circular character of current gender identity definitions, and the inconsistency between the Commission’s public explanation of sex and the position advanced in its submissions in Tickle v Giggle.
Later in the meeting, building on this, the Coalition of Activist Lesbians explained that lesbians are a distinct group with specific needs, and argued for the protection of lesbian‑only spaces. CoAL outlined its long‑standing role as a peak lesbian body with ECOSOC consultative status with the United Nations and described how policy settings and institutional practices have increasingly sidelined lesbians within broader identity categories.
How the Commission could use its powers
AAWAA’s first main focus was to invite the Commission to reflect on how its existing inquiry powers might be used to clarify the current landscape. We noted that section 11 of the Australian Human Rights Commission Act empowers the Commission to inquire into ‘acts or practices’ that may be inconsistent with human rights, and suggested that an inquiry into how the sex and gender framework is operating for women and girls could be a constructive use of that function.
Our second main focus was to raise concerns about the Commission’s institutional role and perceived neutrality in contested areas of law and policy relating to sex and gender. We pointed to patterns across several acts and practices – the AHRC’s amicus interventions, its national guidance (especially in sport), and its engagement with international mechanisms – and explained how, from our perspective as women, these appear aligned with one side of a highly contested debate. Our aim was not to re‑run any case, but to show how these patterns affect the confidence of women’s organisations working on sex‑based protections and rights, and why that matters for trust in the Commission as an independent human‑rights body.
Throughout, we grounded our concerns in CEDAW. We referred in particular to Article 7 on women’s participation in the formulation of government policy and to the wider obligation to maintain sex‑based protections and rights for women and girls. We also noted, as we have in previous posts here, that women’s organisations with an explicit mandate for women’s sex‑based protections and rights – including lesbian organisations – have too often been excluded from, or brought in very late (if at all) to, key policy processes.
In this meeting, we adopted what we have previously called ‘strategic patience’: clearly framed concerns and documentation. Our purpose was to brief the Commission as stakeholders on what we are seeing and to invite the Commission to consider whether and how it might use its existing powers to address the legal uncertainty we described.
How the Commission responded
In response, the President set out the Commission’s understanding of its statutory functions and decision-making framework. He noted that the Commission’s mandate includes promoting public discussion and acceptance of human rights, which enables it to publish explanatory material on specific issues.
He acknowledged the Commission’s powers under section 11 of the Australian Human Rights Commission Act to inquire into acts or practices that may be inconsistent with human rights, and noted that those powers are broad and can be exercised in different ways. He indicated that decisions about whether and how to undertake an inquiry involve judgment about the significance of the issue, what else is happening in the system, and the resources available.
What the meeting clarified about the Commission’s mandate
For us, the President’s remarks clarified that the Commission’s mandate extends beyond complaint handling and includes the capacity to initiate inquiries, undertake reviews, and contribute to public understanding of complex human rights questions. Those powers are discretionary and may be exercised in different forms, from publishing guidance to conducting more formal examinations where appropriate.
The operation of Australia’s sex and gender framework, and its implications for women’s sex-based protections, is plainly a systemic question of the kind the Commission is empowered to consider. The question is not whether the Commission has the authority to engage with it, but how it chooses to do so.
What needs to happen next
We valued the opportunity to meet and to present our analysis directly to the President and Commissioners. The meeting did not resolve the questions we raised, nor did we expect it to. But uncertainty about the scope and application of women’s sex-based protections is not sustainable in a mature human rights system. The Commission has both the authority and the responsibility to provide clarity. We will continue to press for that clarity until Australia’s framework for sex‑based protections and rights is fit for purpose.
