The Human Rights Law Alliance (HRLA) says the Federal Court has moved Australian discrimination law one step closer to acknowledging biological sex.
That matters dearly to HRLA, which “defends the rights of Christians to live in accordance with a Biblical understanding of sex and human identity.”
It says Australia’s “legal and political framework has, for too long, elevated gender identity over the biological reality of male and female.”
“The law must acknowledge the reality of biological sex and uphold the fundamental freedoms of speech, association, and religion.”
THE CASE THAT OFFERS HOPE FOR CHANGING THE LAW
At the centre of the case which offers hope that may now happen is the Lesbian Action Group (LAG).
It applied for a five-year exemption under the Sex Discrimination Act (SDA) to exclude men who identify as women from participating in its social events.
The application was denied by the Australian Human Rights Commission (AHRC) — a decision which was then upheld by the Administrative Review Tribunal.
So LAG appealed to the Federal Court which found the Tribunal had erred on two grounds.
FIRST ERROR OF TRIBUNAL RULING
HRLA writes that the first error goes to the heart of how discrimination law should work.
“The SDA’s object is not, as Justice Moshinsky put it, to eliminate discrimination ‘at all costs‘”.
“Parliament built exemptions into the law precisely because competing interests sometimes deserve protection.”
“The Court made clear that those exemptions are not limited to cases of ‘positive discrimination,‘ but extend to any situation where other legitimate interests are at stake.”
SECOND ERROR OF TRIBUNAL RULING
HRLA continued that the second error cut even deeper.
“The Tribunal had treated the human rights principles in the AHRC Act, including the indivisibility and universality of human rights, as though they were merely aspirational.”
“The Court disagreed, finding they carry real legal weight.”
WHAT THESE RULINGS MEAN FOR AUSTRALIANS
HRLA explains that the legal principle here matters for all Australians.
“For years, the Commission has read the SDA in a way that elevates gender identity above sex-based rights, religious conviction, and freedom of association.”
“The Federal Court has moved against that reading, and its decision has consequences that extend well beyond this case.”
“These issues matter to groups like LAG and others who want a space for women to meet without having to allow men.”
THE BIG QUESTION THAT HAS YET TO BE RESOLVED
This case is still not over because the Court did not resolve whether “sex” in the SDA means biological sex.
That question remains live in the pending Giggle v Tickle appeal before the Full Court.
The answers to these questions matter enormously to HRLA and the clients it represents.
People like Jasmine Sussex, who is defending a vilification complaint for raising concerns about male breastfeeding and Binary Australia’s Kirralie Smith who has been ordered to pay $95,000 for publicly questioning a male playing in women’s football.
HRLA underlines these are not isolated incidents in a nation without a legal definition for male and female.
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