Twelve years ago, when both sides of politics supported big changes to the Sex Discrimination Act, there was little dispute on the floor of parliament.
Labor and the Coalition both believed outlawing discrimination on the basis of gender identity was a step in the right direction.
But with the benefit of hindsight, there appears to have been a gap between parliament’s understanding about what it was doing, and how the new law has played out in practice.
If parliament knew it was approving a law that would force the community to treat certain men as if they were women, this would probably justify a clear and explicit reference in the second reading speech of Mark Dreyfus, who was attorney-general at the time.
Given the significance of such a move for the legal position of women, it might also be expected to show up clearly in the second reading speech of former senator George Brandis, who was shadow attorney-general.
But it’s not there.
Nor is there any mention of such a legislative purpose in the explanatory memorandum that accompanied the law which made this change: the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013.
Yet the purported ability of this law to require men to be treated as if they are women – based on their gender identity – is the focus of next month’s appeal in the bizarrely named case of Tickle v Giggle.
The issue is whether the Sex Discrimination Act imposes a legal obligation to treat certain biological men as if they are women.
Does the law, in other words, require us to deny reality?
Sall Grover, who ran the female-only app Giggle for Girls, is attempting to overturn last year’s Federal Court ruling that she unlawfully discriminated against Roxanne Tickle, who identifies as a woman but is biologically male.
Last year, when Justice Robert Bromwich ruled against Grover, he relied on the 2013 legislation and declared that sex “is changeable and not necessarily binary”.
If Bromwich’s decision is upheld, the implications will be significant, not least in the troubled childcare sector.
It will mean that any move to deal with the paedophilia scandal in those centres by excluding men from certain positions could be sidestepped by men who identify as women.
This could be overcome but it might require parliament to take another look at those 2013 amendments and consider winding them back.
There is an important point in this debate that is frequently overlooked.
Roxanne Tickle and others in the same position deserve to be treated with compassion. They did not choose their path in life and should not be ostracised because of an innate characteristic.
Parliament does have a duty to help these people. But that duty should not extend to forcing the community to deny reality and give certain men women’s rights.
There is, however, another possibility. What if the judge has misconstrued the law?
In August last year, soon after Bromwich ruled against Grover, legal academic Neil Foster published a detailed analysis that said the decision was incorrect as a matter of law with implications that were bad for society as a whole and women in particular.
Foster, who is an associate professor of law at the University of Newcastle, made the point that Bromwich’s view that sex was changeable and this was “grounded in logic and longstanding authority” did not withstand careful analysis.
“Such authorities as there are, are either not binding propositions but comments made in passing, or have never been approved by the High Court of Australia,” he wrote on his Law and Religion blog.
Foster argued that it was perfectly possible to read the Sex Discrimination Act’s prohibition against gender identity discrimination as applying to cases whereby a person who has a transgender identity is denied employment or services in areas where such identity is irrelevant.
“But this would not require that such discrimination be found where a person with such an identity was seeking to access a service which had legitimately been restricted to persons of either the male or female sex, if they were not of that sex (determined by their biology)” he wrote.
This might explain why the new law’s explanatory memorandum contains relatively modest examples of how the ban on gender identity discrimination was expected to operate.
Neither of the two examples in the explanatory memorandum raised the possibility that certain biological men would need to be treated as if they are women.
If parliament did intend to have the Sex Discrimination Act introduce such a radical change it would have been logical to include a very clear reference to this in the explanatory memorandum.
But again, it’s simply not there.
The first example in the memorandum underpins Foster’s argument. It says it would likely be discrimination for an employer to refuse to employ a transgender man on the basis of his gender identity.
The second example is just as benign. It says it would amount to indirect discrimination if a human resources policy did not permit transgender women to change employment records, thereby forcing them to disclose their transgender status.
So while there is a possibility that Bromwich is wrong, what happens if his judgment is upheld? Does that make Foster wrong?
That raises an more worrying possibility: it might mean our elected representatives took their eyes off the ball in 2013 and failed to notice that those amendments could be applied in a way that was not spelled out in the material before parliament.
Chris Merritt is vice-president of the Rule of Law Institute of Australia.
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