In the dying weeks of the Gillard government, Labor’s Mark Dreyfus quickly and quietly up-ended the rights of Australian women.
What was positioned as ending discrimination for LGBTIQ people has actually ended up stealing hard-won gains for women and girls to have a “room of one’s own”. Quite literally. And if last week’s Federal Court decision between Roxanne Tickle and Sall Grover that relied on Dreyfus’s legislative changes goes unchallenged, then officially sex is no longer anchored in biology, at least for the purposes of the federal Sex Discrimination Act.
It doesn’t matter that a person’s DNA can’t change. If you can call yourself a woman under the relevant state law, that’s that. So, absent a successful appeal or further legislative change, when biology and the law part company it’s the law that prevails even though no law can give someone XX chromosomes.
It’s probably unfair to blame the judge for this absurdity, although there was no suggestion in Robert Bromwich’s judgment that he was uncomfortable with the law as he has found it to be. This predicament is the largely unanticipated outcome of Gillard era changes to the Sex Discrimination Act to include “gender identity” as a ground for claiming unlawful discrimination. This was defined as “the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth”.
Given what we now know, these words should have rung alarm bells but didn’t at the time. In introducing the bill, then (and now) Attorney-General Dreyfus didn’t elaborate at all about the gender identity provision – perhaps because he didn’t want to draw attention to its potential ramifications.
His second reading speech outlining the legislation was a scant 410 words long and claimed the bill was just about ensuring there was no discrimination against LGBTIQ people in accessing services. The House of Representatives Standing Committee on Social Policy and Legal Affairs declared “the protection of citizens from discrimination” was “a core matter of social justice” and merely observed that the proposed change would “address gaps in the current anti-discrimination legal framework”. When it was later subject to a Senate inquiry, even Coalition members of the Senate Legal and Constitutional Affairs Legislation Committee were “broadly supportive” of the bill.
The only concern about the legislation that was raised by opposition speakers at the time was the possibility that the amendments might make it harder for church-run institutions to employ people who’d sustain their ethos.
Yet as it has now turned out, in yet another example of how well-intentioned change can have unintended consequences, this is the opening that has been exploited by trans activists in their latest attempt to insist that biological males can actually be women when immutable scientific fact makes clear this is impossible.
In 2020, Queensland woman Grover established the Giggle for Girls smartphone app, which was billed as a safe online space for biological females to connect and support each other. As she told the court, it was created to be “a place without harassment, ‘mansplaining’, ‘dick pics’, stalking and aggression and other male patterned online behaviour”. Grover doesn’t accept that sex can be a matter of self-identification and has been branded as a “trans-exclusionary radical feminist” like author JK Rowling. Because Grover always intended that her app would be for females only, she required users to submit a selfie that artificial intelligence would scan to weed out men.
In February 2020, Grover said, the Giggle app received more than 5000 unwelcome applications from people she determined to be male and excluded. By 2021, the app reportedly had 20,000 subscribers in 88 countries, despite, Grover said, a regular “flood of male abuse”.
In February 2021, Tickle, a biological male who’d had gender reassignment surgery, was initially accepted to join the app but subsequently excluded once Grover herself had studied the selfie that Tickle had submitted.
In December 2021, Tickle complained to the Australian Human Rights Commission about unlawful discrimination. When Grover refused conciliation, the matter went to the Federal Court for determination. After a three-day hearing in April, last Friday Justice Bromwich brought down a judgment that found for Tickle, with costs plus $10,000 in damages.
Justice Bromwich accepted submissions from the Sex Discrimination Commissioner that he described as “propositions grounded in logic and longstanding authority”. These were, he said, that sex “is not confined to being a biological concept referring to whether a person at birth had male or female physical traits, nor confined to being a binary concept, limited to the male or female sex, but rather takes a broader ordinary meaning, informed by its use, including in State and Territory legislation … accordingly, sex can refer to a person being male, female or another non-binary status and also encompasses the idea that a person’s sex can be changed”. It is sufficient, the judge said, “that Ms Tickle is recorded as female on her updated Queensland birth certificate for her to be, at law, of the female sex”.
He went on: “The acceptance that Ms Tickle is correctly described as a woman, reinforcing her gender identity status for the purposes of this proceeding, and therefore for the purposes of bringing her present claim of gender identity discrimination, is legally unimpeachable.”
The judge conceded that if a biological male who hadn’t transitioned (a “cisgender man”) had sought to join the app, his exclusion might have been justified. Presumably, though, that did not apply here because Tickle was legally a woman though biologically a male. The judge found “the real injury from her exclusion” from the Giggle app was not the stress and anxiety attacks that Tickle claimed but “the hurt of not being treated as a woman” and that “prohibition on discrimination on the ground of gender identity is to address this kind of injury”. Hence the award of $10,000. Notwithstanding Grover’s “misgendering” of Tickle, the judge declined to award aggravated damages and conceded that “what the word ‘woman’ means is deeply contested and there must be scope in which persons can put forward an argument … where it is genuinely held”.
And that’s the point, isn’t it? The definition of woman is indeed deeply contested, between a vociferous and aggressive trans lobby, and those who think that allowing biological males claiming to be women to invade women’s spaces makes a mockery of female equality. Ask yourself how many trans men are demanding to be included in male sports or in male-only clubs?
In the real world, there’s furious division over what defines a woman, but at least as far as Justice Bromwich is concerned the law is crystal clear. Did this come about because MPs debated the issue and decided that anyone who claims to be a woman really is a woman; or because this question was openly put to voters and decided by an election or at a referendum? Of course not. What we are now saddled with is something that has been insinuated into law by stealth.
Sall Grover deserves support to appeal this case. To put this matter beyond the reach of judicial activism, the parliament must remake the laws to protect the rights of women and girls.
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