Parliament, not the courts, holds the key to fixing the Sex Discrimination Act. Dr Megan Blake explains what workable reform would need to address, from the meaning of ‘sex’ to the limits of the exemption process.
Dr Megan Blake is co-counsel for the Lesbian Action Group in its case against the Australian Human Rights Commission (AHRC), and a member of Sall Grover’s legal team in the High Court application in Giggle v Tickle. The Women’s Advocate recently sat down with Dr Blake and the full video interview is available below. We also publish a summary of the main questions put to Dr Blake and the substance of her answers.
What is the fundamental problem identified in the Giggle case?
Dr Blake explained that the Giggle case turns on the meaning of ‘sex’ under the Sex Discrimination Act 1984 (SDA). When the Act was passed, sex was understood as biological, so the Act did not define the term. That definition has since shifted in some quarters, including at the AHRC and in the courts. The Giggle case argues that this shift dilutes women’s sex-based protections and rights, where those protections and rights are properly understood as attaching to biological sex.
Does the Lesbian Action Group face the same problem?
Not exactly, according to Dr Blake. The Lesbian Action Group is seeking an exemption to conduct events for women who are lesbians, defined by the group as women who are attracted to other women on the basis of biological sex. Whichever definition of sex applies, an exemption is required either way — the definition only changes which categories of people the group must argue for excluding.
Is court action the only way to resolve this?
No. Dr Blake noted that Parliament can amend the SDA at any point, regardless of how the courts interpret it. If Parliament disagrees with a judicial interpretation, it retains the power to legislate a different outcome.
Where would Parliament need to start if it wanted to amend the Act?
Dr Blake said a statutory definition of sex would be the first logical step for anyone who considers sex-based protections and rights should be grounded in biological sex. Beyond that, she identified two further areas Parliament could address: clarifying what gender identity means and how it interacts with sex, and clarifying how state and territory discrimination law interacts with federal law.
Would services such as women’s refuges need express statutory protection as well?
Dr Blake said such protection would not be strictly necessary once sex is defined, but that it would be useful. Explicit protection would give service providers greater confidence without requiring them to seek an exemption on each occasion. Asked whether this protection should take the form of a general category or a specific list, she said it should be both: a general, inclusive category to capture services not currently foreseen, combined with a named list covering services such as rape crisis shelters and women’s sport, provided the list remains illustrative rather than exhaustive.
Is the exemption model a sound basis for women’s sex-based protections and rights?
Dr Blake was asked directly about AHRC President Hugh de Kretser’s comment that women can apply for exemptions to run women-only groups or services such as refuges. She said the exemption model is not the right foundation if ‘foundation’ means a necessary or default step. Where a service is listed in the Act as a permanent exception, it should not need an exemption at all. She said the exemption process still has a role for genuinely ambiguous or short-term situations, but should not be what every service has to rely on from the outset.
How would federal reform interact with state and territory law on identity documents?
Dr Blake explained that if federal Parliament defined sex as a biological constant, the SDA would protect biological sex rather than whatever appears on an identity document. The practical difficulty is proving biological sex where documents have been altered. She noted that federal law can override inconsistent state law only in specific circumstances: where compliance with both is impossible, or where the federal Act is worded to cover the whole field.
Will courts continue to have the power to interpret the Act, even after reform?
Yes. Dr Blake said courts will always retain interpretive power, since legislation cannot anticipate every future circumstance; however, the more precise and detailed Parliament’s drafting is, the less scope courts have to depart from it. She compared this to the Marriage Act 1961, which operated without a statutory definition of marriage for around 40 years, and to native title, which courts recognised before Parliament legislated on the subject. Whether that judicial flexibility is desirable, she said, often comes down to a value judgment about the direction courts have taken.
You can watch the interview above, or listen on Spotify or Apple: