It’s a mad, mad world. The Australian Club lawfully excludes women because men have stuff they like to do on their own. Religious schools, in some states, can impose faith-based exemptions from discrimination law for certain staff.
The University of Melbourne law school recently placed a job advert for an Indigenous person only. Australian companies, political parties and other groups have imposed sex-based quotas for certain jobs for women only. Many pay bonuses to managers who hit their positive discrimination quotas for female staff.
All within the law, apparently.
Sall Grover set up an online app for women called Giggle for Girls. It was a space where women could talk candidly among themselves about issues that concern women – a cheaper and more cheerful online Australian Club for women only, if blokes want to understand it on their terms.
Roxanne Tickle is a biological man who identifies as a woman. So, Tickle didn’t meet the membership criteria for Giggle. It was that simple for Grover who, after seeing a photo of Tickle, blocked the trans woman from accessing the women-only app.
In the real world, to most people, that probably seems eminently sensible.
Trans women, different from biological women, are free to join groups that accommodate their particular needs. That should have been the end of the matter.
Instead, three years on, Grover’s Giggle platform is still fighting for a women-only space. And we are forced to ask, almost a century after Virginia Woolf’s A Room of One’s Own, why can’t women have an online room of their own to express themselves freely?
Next month, Giggle is appealing Federal Court judge Robert Bromwich’s decision last year where he found that by blocking Tickle, the female-only app had illegally – though indirectly – discriminated against the trans woman based on gender identity.
The Bromwich judgment is a mess probably because the Sex Discrimination Act is a bugger’s muddle too. In 2013, the Gillard government amended the SDA to include gender identity as a basis for discrimination. By removing the definition “woman means a member of the female sex”, Labor left it to judges to work out. Bromwich decided that “in its contemporary ordinary meaning, sex is changeable”.
That will be news to many people who believe that sex is determined by our biology. Indeed, Grover’s lawyers say for the SDA to make sense, woman means biological woman. Also, that’s what a woman is – a biological female.
In setting up Giggle, Grover says she was doing no more or no less than what other groups across the country do when doing something for women only. All these groups rely on section 7D of the Sex Discrimination Act that says “a person may take special measures for the purpose of achieving substantive equality between men and women”.
Giggle’s appeal submission says the app’s purpose was to create “a digital refuge exclusively for women, designed to offer connection, support, and safety from male-pattern online harms”.
Grover set up Giggle after experiencing sexual abuse and harassment during her time as a scriptwriter in Hollywood.
During therapy she realised “the importance of female-only support environments” where women could talk openly about everything from mental health issues to motherhood “without surveillance or participation of males; and the need for a male-free space for respite from male harassment and the male gaze”.
Tickle is not a biological woman. There are differences between biological women and trans women. That’s why the word trans is attached to the word woman.
Bromwich rejected Grover’s arguments. While the judge found Tickle had suffered only a “modest degree of hurt feelings” after being blocked from the app, awarding the trans woman only $10,000 in damages, Bromwich also said “this quantum does not reflect the potential seriousness of gender identity discrimination that might emerge in another case”.
In other words, get set for more claims when another woman tries to set up a female-only space.
We should be grateful then that Grover, the mother of a three-year-old girl, is fighting back, putting her life on hold to raise money to fund an appeal.
It’s high time we heard from our courts about two critical questions.
The first is simple: what is the definition of a woman?
People not caught up in the politics of the trans movement will find it easy to define woman as a biological woman. Full stop.
If woman includes a trans woman, we had better prepare for all kinds of crazy, unintended consequences.
We should be grateful, too, for a group called the Lesbian Action Group. It has been granted leave by the Federal Court to make submissions in the Giggle v Tickle appeal that will be heard next month. The group set out some of the irrational consequences in its submissions filed on Monday.
If woman in the SDA includes a biological man who identifies as a woman, then schools will have to admit biological boys into all-girl schools, charitable accommodation providers will have to admit biological men into domestic violence shelters and rape crisis centres, lesbians will have to admit biological men into their clubs, employers will have to allocate jobs that involve body searches and entering into a women’s lavatory to biological men, vulnerable or disabled girls living in residential care will be cared for by biological men, actuarial data applied favourably to women in insurance or superannuation policies will be applied to biological men.
And “sex only” medical conditions won’t be able to be identified at all.
“Each of these propositions varies in impossibility, irrationality or unreasonableness,” says the Lesbian Action Group’s submission to the Federal Court. “None of them can be said to be the product of a reasonable interpretation of the words of the SD Act.”
Grover’s appeal, to be heard over four days in early August, comes down to a simple question: in the clash between women’s rights and trans rights, why should biological women come off second best?
Which is precisely what will happen if women such as Grover will not be allowed to host a space for biological women only.
This problem has already been identified and solved in Britain. Even accepting that there are differences in the law between Britain and here, the recent landmark ruling of the UK High Court, that woman means biological woman, should be a powerful precedent in this country. The court made clear that its decision does not mean the end of trans rights; it simply means that biological women are entitled to their own spaces.
Why are Australian women having to fight for these rights in the 21st century?
If we can’t yet hear from our own High Court on these fundament matters, then the full court of the Federal Court will do for now.
The other question crying out for judicial clarity in Australia is this: exactly how do special measures work as between men and women? Are measures that discriminate in favour of women, for example gender quotas, allowed to be permanent?
The scope of special measures is every bit as relevant as the meaning of woman in the real world. If special measures are used to justify discrimination in favour of women against men, how long do these measures last? In other words, when is substantive equality reached?
In practice, the use of special measures has become open slather, unlimited and uncontrolled justification for affirmative action. Both in relation to sex and racial discrimination, Australian employers and the search firms that do their hiring make no attempt to justify why special measures are required or why the measures planned do no more than is necessary, for any longer than is necessary, to achieve substantial equality as the Sex Discrimination Act expressly requires of the special measures.
It wasn’t supposed to be this way.
Both the Convention on the Elimination of All Forms of Discrimination Against Women and the UN Convention on the Elimination of All Forms of Racial Discrimination, each of which serves as the original fount of discrimination law in their respective areas, explicitly requires that affirmative action be specifically targeted for precise purposes and limited in time lest it become a new engine of oppression.
The Australian Human Rights Commission’s own guidelines about special measures also require that such measures be carefully monitored.
It suggests that those employing special measures identify the specific inequality they are targeting, think about how the proposed special measures will achieve substantive equality between men and women, consider whether the proposed special measures are proportionate and appropriately targeted, and consider how to monitor the proposed special measure.
Sadly, if there is a more widely ignored set of human rights guidelines in this country, I am yet to find it.
Even the AHRC is unconcerned by the near universal flouting of its guidelines. Given the Sex Discrimination Commissioner is also intervening in Giggle v Tickle as amicus curiae or “friend of the court” – meaning ostensibly that the Australian Human Rights Commission will not take sides, only “assist” the court – perhaps the commissioner could assist the Full Federal Court by pointing to their own guidelines concerning special measures.
Don’t count on the AHRC being that much of a friend to the court.
The Australian courts sure have some catching up to do. Britain’s highest court has sensibly defined woman to reflect reality. And in the US, the Supreme Court has called time on affirmative action, recognising that it cannot become permanent without becoming a new form of oppression.
With a lot of common sense to live up to, all eyes next month will then be on the Federal Court.
More Coverage
Collapse of trust in China reinforces value of US alliance
Even as faith in the Trump government wavers, the perceived military threat from Beijing weighs much heavier on Australian sentiment.
Trump 2.0 at six months – a revolution in 10 acts
If Donald Trump maintains a fraction of the pace of his presidency so far, the remaining 42 months are likely to be transformative of American power and politics. Here are 10 reasons the Trump revolution may succeed.