In April 2026, the Federal Court found legal error in the Australian Human Rights Commission’s approach to the Lesbian Action Group’s exemption application and held that the Commission’s own guidelines were deficient. In June, the Commission went to Adelaide to talk about human rights. Some of the women most affected by its decisions went too.
On 25 June 2026, the Australian Human Rights Commission held the Adelaide leg of its ‘The Answer is Human Rights’ public seminar series at U City. The panel featured AHRC Chief Executive Leanne Smith and Age Discrimination Commissioner Robert Fitzgerald, with women’s advocates in the audience.
AHRC found to be in error
Women attending were already familiar with Lesbian Action Group Inc v Australian Human Rights Commission. The Lesbian Action Group (LAG), a small volunteer group of lesbians, had applied for a five-year exemption under section 44 of the Sex Discrimination Act 1984 (Cth) to hold regular publicly advertised events for ‘lesbians born female’, beginning with a celebration of International Lesbian Day on 15 October 2023. The Commission refused the exemption; the Administrative Review Tribunal affirmed that refusal.
In April 2026, the Federal Court allowed the LAG’s appeal, found error in the Tribunal’s approach to section 44, and held that the Commission’s 2009 exemption guidelines were “deficient”. The Court remitted the matter for redetermination and directed the parties to address costs.
The distinction between seeking costs and being awarded costs
The first question from the floor was put by AAWAA member Vicky Rose and was addressed directly to Ms Smith. Ms Rose referred to the Commission’s 30 January 2026 written submission in the Federal Court and to evidence given at Senate Estimates in May:
VICKY ROSE: The Australian Human Rights Commission’s written submission to the Federal Court in the Lesbian Action Group appeal states, “The Commission submits that the appeal should be dismissed with costs.” At Senate Estimates, the Commission said it had not sought costs, but there is a distinction between seeking costs and being awarded costs. Can you please clarify the Commission’s understanding of the costs matter?
Ms Smith replied that costs were not her area of responsibility at the Commission and said: “We did not seek costs, but that’s just the normal practice of the court.” A member of the LAG, Ms Stacey McCain, soon responded from the floor: “Costs were sought. They were not just awarded, they were asked for and sought.”
The Commission’s ‘Respondent’s Outline of Submissions’, filed on 30 January 2026, states at paragraph 4 that “the appeal should be dismissed with costs”. This was the third time since late April that the costs question has been raised with the Commission in public settings: at the National Press Club, at Senate Estimates, and now in Adelaide. In each instance, the wording of the AHRC’s written submission and the prospect of costs against a small volunteer group have been at the centre of women’s concerns.
“Never about privileging one set of rights over another”
Ms McCain from the LAG then turned to the substance of the LAG case. She explained that the LAG is a small volunteer group of lesbians who had sought an exemption to hold lesbian-only events, and that the Commission had opposed their exemption at every stage, including in the Federal Court. She asked what studies the Commission had done on the impacts of the 2013 amendments to the Sex Discrimination Act on lesbians.
In response, Ms Smith described the legislative framework. She said that the SDA was changed in 2013 to extend definitions and “to include transwomen as women under the Sex Discrimination Act”. She said it was the Commission’s responsibility as the national human rights institution to implement that legislation and to ensure that everybody included under the Act is protected. She stated that the LAG litigation was “never about privileging one set of rights over another”, and added that everyone working at the Commission would “stand up and defend women’s rights to the day we die” because that work is the Commission’s “bread and butter”.
LEANNE SMITH: … human rights are not about privileging one person or one group’s set of rights over another, and that is absolutely the perspective we take as Australia’s National Human Rights Institution. The Sex Discrimination Act was changed in the 2010s — I think it was 2013; I wasn’t here — to extend definitions and to include transwomen as women under the Sex Discrimination Act. And so it’s our responsibility as the National Human Rights Commission to implement that legislation and to ensure that everybody included under that Act is protected. So this legal case was never about privileging one set of rights over another. And I hope that you can believe that every one of us working at the Australian Human Rights Commission will stand up and defend women’s rights to the day we die, because it’s our bread and butter and it’s what we all care about doing. So we need — this is probably the pointiest end of the stick when we’re talking about sharing rights in Australia at the moment — and we will apply international human rights law to do our best to make sure that everyone is protected under that legislation. So thank you for the question.
The 2013 amendments inserted new protected attributes into the SDA, including ‘sexual orientation’ and ‘gender identity’. They did not amend the references to ‘women’ in the Act’s title or objects, and they did not expressly redefine women to include males who identify as women. The objects clause continues to refer to giving effect to CEDAW (the Convention on the Elimination of All Forms of Discrimination against Women) and to achieving substantive equality between women and men. CEDAW itself is an international instrument directed at discrimination against women on the basis of sex.
The Commission did not touch on the Federal Court’s findings on section 44 or on the Commission’s 2009 exemption guidelines. The question about studies on the impacts of the 2013 amendments on lesbians also remains unanswered on the public record.
In practice, the Commission’s approach to exemptions and its interpretation of the SDA has material effects. In the LAG matter, the refusal of an exemption meant that a group of lesbians could not hold events that excluded males with a ‘gender identity’, while protection for gender identity remained fully available to males who identify as women — and as lesbians — in the Commission’s interpretation of the SDA. Ms Smith’s statement that the case was “never about privileging one set of rights over another” sits alongside this outcome and the Court’s finding that the exemption power had been applied too narrowly.
Do older women fit into the exemptions framework?
Age Discrimination Commissioner Robert Fitzgerald separately made a contribution about how the Commission approaches exemptions. He said that every time the Commission is asked to deal with an exemption it could be said that it is preferencing one group over another, but that this is “not how it operates at all”. He stated that to say the Commission sits down to privilege one group over another “completely misunderstands both the law and completely misunderstands the approach we take”.
He then spoke about older people and human rights. He said that “human rights benefits everyone in this room” and that “as you get older, as you start to lose your cognition, you will want to be protected by those rights”. He cautioned that “every time we try to show that it’s a privileging, it’s a taking away, we damage the very rights that are going to be important to you later in life as they are early in life”.
ROBERT FITZGERALD: So can I just make a comment? Every time the Human Rights Commission is asked to deal with an exemption, it could be said that you’re preferencing one over another every time you make a decision. That’s not how it operates at all. And yet that’s how people see it. Because every time you want an exemption, it’s an exemption that’s doing something different to the law. So, to say that in this particular case or in any other case the Human Rights Commission sits down to privilege one over the other completely misunderstands both the law and completely misunderstands the approach we take. But the challenge in Australia is: if we continue to see my right and your right as being in conflict, then it’s almost impossible to see how we embrace human rights. And yet human rights benefits everyone in this room. And as you get older, as you start to lose your cognition, you will want to be protected by those rights. So every time we try to show that it’s a privileging, it’s a taking away, we damage the very rights that are going to be important to you later in life as they are early in life. So, I don’t want to comment on the individual issue, but fundamentally, if you think the Human Rights Commission or the equal opportunity commissions in the states sit there and talk about privileging, it misunderstands completely the way that these processes are designed. But are there choices and challenges in the decision-making? Absolutely. And sometimes we will get it right and sometimes we will get it wrong. You know, the Commission’s been around for 40 years. I’m sure we’ve made mistakes during that. But I’m sure we’ve also got a lot of things right. What I really do urge is not to see this thing as a privileging of one over the other. It will not advance your rights and it will not advance the rights of those most in need of protection.
In this contribution, Mr Fitzgerald focused on the Commission’s approach to exemptions and on the general importance of human rights protections for older people. He did not refer to the Federal Court’s decision in the LAG appeal or to the Court’s finding that the Commission’s exemption guidelines are deficient, and he did not distinguish between the position of older women and older men.
AAWAA’s work on older women has documented that older women face specific, sex‑based discrimination in the implementation of the age pension, as well as risks in residential and institutional settings, including higher rates of male violence and coercion, and that many older women require intimate personal care from workers they did not choose. In both our submissions to the UN Special Rapporteur on violence against women and girls, AAWAA recommended a statutory right for older women to request and receive intimate personal care from female workers. Under the current framework, older women seeking such care may need to rely on exemption mechanisms under the SDA and on associated guidelines.
The Adelaide seminar provides a record of how these issues were described to women who raised concerns about female-only spaces and care — including older women for whom the intersection of age and sex discrimination is directly relevant to the Age Discrimination Commissioner’s statutory role.
A fuller picture now on the public record
The Adelaide seminar adds several points to the existing public record on the LAG case and on the Commission’s approach to exemptions.
First, on costs, Ms Rose’s question drew attention to a specific ask in the Commission’s written submission to the Federal Court: “the appeal should be dismissed with costs”. Ms Smith’s answer in Adelaide — that the Commission did not seek costs — is inconsistent with that wording. The costs question has now been raised multiple times since April by those concerned about the risks faced by small volunteer groups that challenge Commission decisions.
Secondly, on the legislative framework, Ms Smith’s answer linked the LAG case to the 2013 amendments and to the Commission’s role in implementing CEDAW. The 2013 amendments inserted sexual orientation and gender identity as protected attributes but did not amend the references to ‘women’ in the Act’s title or objects and did not expressly redefine women to include males who identify as women. The Federal Court has found that the exemption power was applied too narrowly and that the Commission’s exemption guidelines are deficient – findings not mentioned at the seminar. Ms McCain’s question about what work has been done on the impacts of the 2013 amendments on lesbians remains unanswered on the public record.
Finally, on exemptions and older people, Mr Fitzgerald emphasised the indivisibility of human rights and the importance of rights protections in older age, while cautioning against viewing exemptions as privileging one group over another. His remarks did not refer to the individual issue of Federal Court’s findings on the Commission’s exemption framework or to the specific situation of older women who may need female‑only care. Older women seeking to secure such care remain would appear to remain reliant on a framework that has been found deficient and that may be difficult for small groups or vulnerable older women to navigate.
Taken together, Adelaide adds to the public record of how, after the Federal Court’s judgement, the Commission’s senior officers describe the LAG case, the SDA and CEDAW, and the exemption process to women — including older women — who are directly affected by those decisions.
Read the full transcript, below.