Sex is not an identity claim: it’s the material, unchangeable condition, shared by all women as a class, most obviously vulnerable to male violence, that makes women’s associations necessary and distinct from most other groups claiming the same right.
Women’s associations exist because women are a sex class, sharing a material condition that produces common vulnerabilities, most obviously to male violence, and a common interest in organising without men present to dilute or override that purpose. This is a structural fact about the world, and it is why a right to freedom of association carries particular weight for women organising as women, distinct from most other groups claiming the same right. It is not one identity claim among several.
The UN Human Rights Committee is currently finalising its interpretive guide to Article 22 of the International Covenant on Civil and Political Rights, the right to freedom of association. The draft is detailed and specific when it addresses trade unions, political parties, and civic organisations operating under hostile states. Its language loosens, however, where it reaches women’s organisations — in a document with no agreed-upon concept of sex as a material category, and only of ‘women’ as one identity group among many, entitled to the same generic protections as any other.
Membership criteria and the discrimination test
When a legal instrument cannot distinguish the structurally disadvantaged sex class organising on the basis of the trait that produces its disadvantage from the advantaged group excluding others on an arbitrary basis, it treats both as instances of the same abstract problem: discrimination. Framed this way, any membership criterion based on sex looks equally suspect regardless of its purpose because the framework has already flattened out the material difference that would otherwise justify it.
This is a general pattern, and it recurs wherever policy or law addresses non-discrimination without first asking what a given form of association is actually for. A right to associate freely, applied to a rape crisis centre, a domestic violence refuge, a lesbian social group, or a women’s advocacy organisation, is not a right to exclude on a whim: it is a right to organise around the very trait, biological sex, that makes our shared experience and shared vulnerability legible in the first place. A document that cannot hold that distinction will produce exactly the outcome this draft produces: precise, protective language for other groups, and an undefined, open-textured non-discrimination clause wherever sex-based association is actually at issue.
Acknowledging disadvantage without a remedy for it
A related failure appears when an instrument acknowledges, in general terms, that women face structural barriers to organising, without building anything on that acknowledgment. An acknowledgment is not a remedy. If a document cannot say what makes women’s structural position specific, materially different from that of other groups facing disadvantage, it has no basis on which to build a positive protection, and the acknowledgment lies unconnected to anything that follows.
This points to a significant limit in treating sex as simply one of several intersecting identity categories requiring equal, generic protection. Intersectional analysis has its uses, but it was never meant to substitute for an account of sex as a distinct material category with its own history of organised, structural subordination. Where that substitution happens anyway, whether by drafters, courts, or policymakers, the result is a framework that can describe disadvantage in the abstract but cannot recognise the specific associational response — organising as women — that disadvantage requires.
When advocacy is read as hostility
The furthest consequence of this conceptual gap is the one with the most immediate legal and policy consequence. Once a legal instrument has no agreed-upon concept of women as a material sex class with a legitimate basis for organising separately, any assertion of that basis starts to look, to the instrument itself, like an attack on some other protected group’s dignity, rather than what it actually is: women exercising an associational right for the reason that right exists. Advocacy for the maintenance of sex as a legally relevant category, or for the continuation of female-only spaces and services, gets read as hostile discourse rather than as ordinary, structural self-organisation.
Australian courts have already faced this reasoning gap directly. In the Lesbian Action Group’s case, a tribunal initially treated a female-only exemption request as impermissible “overt” discrimination, a decision the Federal Court later held to be legally erroneous, confirming that the exemption power exists precisely to permit this kind of association. In Giggle v Tickle, the Full Federal Court reached the opposite outcome, finding a women-only platform had unlawfully discriminated by excluding a trans-identified male, while noting that rebalancing sex-based and gender-identity protections was a matter for parliament, not the courts, under the legislation as it stands. Together, the two cases show the same absence working in opposite directions: without a clear, agreed-upon basis for treating sex-based association as a legitimate, structurally grounded right, its protection depends entirely on which way a given court or tribunal happens to read the law in front of it.
Applying existing tests rather than inventing new ones
An international human rights body does not need a new legal standard to fix this. The UN Human Rights Council, and any legislature or court facing the same question, can apply the tests it already uses elsewhere — proportionality, necessity, legitimate aim — to female sex-based association specifically, rather than treating it as automatically incompatible with non-discrimination before any such test is applied. Criticism of law or policy on sex and gender, however contested, is a different thing from the narrow, specific standard international law actually sets for restricting speech (incitement to hatred) and the two should not be treated as interchangeable. Women have a right to associate as a sex class, because we are the vulnerable sex class, and that right should not depend on how comfortable it is, at any given moment, for an institution to name it.
The specific amendments a submission like AAWAA’s proposes to a document like this follow from a fundamental correction: recognising female sex as a material basis for association, not a subordinate variant of a generic non-discrimination principle. Once that correction is made, the specific wording is the easy part.
Read the full submission, below.