At the AHRC’s national ‘The Answer Is Human Rights’ seminar series, women’s advocates have now twice put direct governance questions to Commission officers and twice received responses that acknowledge that questions exist — but without answering them. In Sydney on 17 June, the question was specific: the Federal Court, in the Lesbian Action Group vs the AHRC, found the Commission’s Sex Discrimination Act exemption guidelines deficient. When will updated guidance be published? No officer so far has offered a date, a commitment, or even an acknowledgement of the finding.
An ask for the commission to fix its deficient guidelines
In a precise, two-part question, the audience member referred to the AHRC’s position, stated at the Perth stop of the same seminar series on 11 June, that the tension between women’s sex-based protections and rights and gender identity amounts to a “narrow area of intersection”, and that women seeking to maintain female-only spaces should apply for exemptions under the Sex Discrimination Act. She then noted what that position elides: that in Lesbian Action Group Inc v Australian Human Rights Commission [2026] FCA 432, the Federal Court found the AHRC’s own exemption guidelines to be deficient. The audience member asked:
AUDIENCE MEMBER: In Perth, the AHRC said that the conflict between women’s sex-based rights and gender identity is a “narrow area of intersection”, and that women need to apply for exemptions to protect female spaces. The Federal Court said your exemption guidelines are deficient. So why do you expect women — why put the onus on women — to navigate a complex and deficient process? And when will you publish updated practical advice that fixes the commission’s guidelines?
The response: pointing to the problem as the solution
AHRC Disability Discrimination Commissioner Rosemary Kayess replied first:
ROSEMARY KAYESS: I hear what you’re saying about the need for safe spaces for people. But we, the commission has got guidelines. And you can look to the commission’s guidelines and for reference.
The Commission does have exemption guidelines. They are the same exemption guidelines the Federal Court found deficient. Commissioner Kayess did not acknowledge the Court’s finding, nor offer any timeline for remedy.
When the questioner pressed the point, raising the Lesbian Action Group’s application to hold lesbians-born-female-only events — which the Commission refused, a refusal subsequently affirmed by the Administrative Review Tribunal before the Federal Court allowed the appeal — and asking why the Commission would not propose a legal fix when it had the powers to do so, the response came from Ms Leanne Smith, Chief Executive of the AHRC:
LEANNE SMITH: So, our job at the Human Rights Commission is to stand up for the human rights of everybody in this country. And it’s also to apply the legislation we have. The Sex Discrimination Act provides for the protection of women, and that includes transwomen. That’s what the legislation says. … We’re applying the Sex Discrimination Act as it stands. That’s the law, and that law is built under international human rights law, including CEDAW that provides for those protections, including for transwomen.
This claim requires scrutiny. CEDAW is a treaty directed at discrimination against women as a sex class; Article 1 defines discrimination against women as any distinction made “on the basis of sex.” The CEDAW Committee’s General Recommendation 28 does refer to gender identity — but in the context of intersecting forms of discrimination that compound the disadvantage faced by women. That is, it addresses women who also experience discrimination on the basis of their gender identity. It does not extend CEDAW’s framework to people who are not women by sex. Whether the SDA as currently interpreted is consistent with Australia’s CEDAW obligations — given that it now treats gender identity as equivalent to sex for the purposes of women’s protections — is a matter of genuine legal debate.
The question of when the Commission would publish updated, legally sound guidance was not returned to at any point in the exchange. No timeline was offered. No AHRC officer acknowledged the Federal Court’s finding of deficiency.
‘Celebrated, not debated’
Commissioner Kayess closed the exchange. Commissioner Kayess’s portfolio is disability discrimination — she was not a decision-maker in the Lesbian Action Group matter, and the exemption guidelines in question are not within her portfolio; her remarks nonetheless carry institutional weight as a member of the Commission.
She described the exemption framework — the same framework under which the Lesbian Action Group’s application was refused, and whose guidelines the Federal Court found deficient — in these terms:
ROSEMARY KAYESS: The fact that we recognise transwomen, and the fact that we recognise the rights of lesbians should be respected and celebrated, that both of those minority groups have a history of having their rights, their rights denied and not respected. Yet here we are with a situation where both those groups can have their rights respected and considered should be celebrated, not debated. We should be very thankful that we’re in that position.
The framing raises a question about what this framework means in practice for the women who depend on it. Women with disability are among those for whom female-only care is not an abstraction. Women with disability are disproportionately subject to sexual violence, including from male carers. The proposition that a disability service seeking to assure female clients that their intimate personal care will be provided by a woman must apply for an exemption — case by case, with legal justification, subject to refusal — is not for those women or their advocates, we suggest, a cause for celebration.
A misunderstanding that needs correcting
Also on the panel was Mr Sharif Deen, Acting CEO of the Aboriginal Legal Service. Mr Deen offered what he described as a sympathetic response — acknowledging that women should not have to apply for exemptions, and saying “Absolutely. Any day of the week” — before suggesting that the question was misdirected:
SHARIF DEEN: I don’t think that the people on the panel or the organisations that you’re addressing the question to are necessarily the ones with the power to do that. If they’re the ones that are responsible for advocating for what their remit is, then if they weren’t advocating for it, that would be an issue. But sitting here in my space, and seeing and understanding what you’re saying, I don’t think that the question is actually best directed at them. I think it’s actually better directed at government, ministers, the people who have the power to change the legislation, the regulations, and those sorts of things.
Mr Deen is not an AHRC officer and was not speaking for the Commission. But he appeared on an AHRC-convened panel, and his response did not reflect the Commission’s actual powers in this regard. Under section 11 of the Australian Human Rights Commission Act 1986, the Commission can inquire into acts or practices it reasonably suspects may be inconsistent with human rights, examine laws for inconsistency, and report to the Minister with recommendations: it does not need Parliament’s permission to start such an inquiry.
The question was not about legislative reform — that point was already on the public record from the Perth seminar. It was specifically about the AHRC’s own published exemption guidelines, which the Federal Court found deficient in LAG v AHRC. Updating those guidelines does not require an act of Parliament. It is within the Commission’s own administrative power, exercised on its own initiative. Redirecting that question to ministers misreads both what was asked on the night and what the Commission can do.
An explainer on LAG v AHRC: ‘Happy to take that back’
After the seminar, The Women’s Advocate spoke with Ms Smith. Asked whether the Commission would publish an explainer on LAG v AHRC as it had done for Giggle v Tickle — and if not, why not — Ms Smith said:
“I would be really happy to take that idea of an explainer back to the Commission, to the Commissioners involved and see if they’d be interested in doing that. Sharing information about our decisions is always something we’re happy to do, be transparent about it.”
The AHRC’s explainer on Giggle v Tickle was published on the day of the Perth seminar, 11 June. As of the time of publication of this article, no equivalent explainer on LAG v AHRC — a case in which the Federal Court found against the Commission, allowed the appeal, and remitted the matter for redetermination — has been published.
The Commission’s position, again on the public record
Perth established that the AHRC has no plans to use the Commission’s section 11 powers to recommend legislative reform restoring women’s pre-eminence in the Sex Discrimination Act. Sydney has now established something equally concrete: that when women ask, in public, at an AHRC-convened event, when will the Commission fix its own deficient administrative guidelines — guidelines that the Federal Court has specifically found wanting — the answer from AHRC officers is to point back to those same deficient guidelines and defend the legal framework that produced them.
Read the full transcript below.