Posts

Is the Human Rights Commission Neutral?

I questioned the Sex Discrimination Commissioner, Dr Cody, regarding the Australian Human Rights Commission’s intervention as an amicus curiae in the Tickle v Giggle case.

I asked Dr Cody whether the Commission could genuinely claim neutrality when participating in the legal action.

I also raised concerns regarding the official report Equal Identities, questioning whether the Commission’s position treats the exclusion of trans females from sex-based spaces as unlawful discrimination under section 5B of the Sex Discrimination Act, and why the office has not actively advised teams and individuals about relevant sport exemptions under section 42.

Additionally, I queried the broader policy approach of recommending the repeal or narrowing of religious and sex-based exemptions, questioning how such positions align with an objective advisory role to the court as amicus curiae or friend of the court.

Finally, I brought up the definition of “gender identity” under the Sex Discrimination Act, specifically the wording regarding a person’s characteristics with or without regard to their designated sex at birth, highlighting my concerns about how these legal definitions operate in practice.

Transcript

Senator ROBERTS: Thank you for appearing here today. Dr Cody, my first question seeks to clear up your role in Tickle v Giggle. You did not prosecute the case and you did not fund the case, yet you presented a legal
opinion in an amicus curiae, a friend of the court, submission. Is that correct?

Dr Cody: That is correct that our role was as amicus curiae to assist the court to understand aspects of the Sex Discrimination Act.

Senator ROBERTS: For clarity, your submission set out the law under the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, passed under Prime Minister Gillard. It
changed the definition of ‘woman’, which can now be a person’s self-described gender identity, including appearance, mannerisms or other gender related characteristics with or without regard to the person’s designated
sex at birth. You argued Tickle was a transgender woman with female legal recognition and presentation, and therefore the treatment from Giggle was properly characterised as gender identity discrimination. Other sections around special measures to promote gender equity, including section 7D, were subordinate to the overarching definition of gender in the act. In simple terms, is that your advice to the court?

Dr Cody: No, it wasn’t. We did not make any submissions on whether or not Ms Tickle had been discriminated against. Our role was to assist the court to understand the constitutionality of the 2013 amendments
and to discuss meanings of sex and gender identity within the act, as well as the meaning of ‘special measures’ and how they would apply and any role for exemptions.

Senator ROBERTS: Amicus curiae—pardon my Latin—is a neutral or advisory role to help clarify legal questions. Are you neutral in the Tickle v Giggle case?

Dr Cody: Our submissions were to assist the court to understand and to interpret the Sex Discrimination Act. So, yes, that was our role as an intervener to assist the court.

Senator ROBERTS: Are you neutral?

Dr Cody: Our role was to assist the court to understand the provisions of the Sex Discrimination Act.

Senator ROBERTS: Are you neutral?

CHAIR: Senator Roberts, the commissioner has answered the question.

Senator ROBERTS: How can you be neutral when you marched into court at the head of the scrum of people on the Tickle side of it? You were making a clear statement in that action of support of one side of this case—a personal show of support not appropriate to an amicus curiae role—were you not?

Dr Cody: No, Senator. We took seats in the only space that was available in the courtroom. That’s why we were sitting on the right-hand side of the courtroom.

Senator ROBERTS: I saw your comments in the publication OUTinPerth in April 2024, where you said: We stand with trans communities and will continue to advocate for their rights and the rights of women.
You are making a very clear distinction here between the rights of women and the rights of transgender women. Do you agree your comments amount to a statement that trans women are not women?

Dr Cody: I’m sorry, Senator, could you repeat that question?

Senator ROBERTS: You talk about trans women, and you talk about women. Doesn’t that show that they’re different?

Dr Cody: Transgender women are a subset of the broader category of women. ‘Women’ includes First Nations women, women with disability, older women, younger women, women from culturally and racially marginalised backgrounds, trans women, lesbians—non-binary would sometimes be included in that as well.

Senator ROBERTS: I’ll come back to that. Moving on, this report titled Equal identities plus a long subtitle was published under your name as Sex Discrimination Commissioner. Can I confirm your official position, as
contained in this report, is that trans female exclusion from sex based spaces of services—for example, women-only apps, shelters, sports and bathrooms—is unlawful gender identity discrimination under section 5B of the Sex Discrimination Act. Is that correct?

Dr Cody: No, that’s not correct.

Senator ROBERTS: It’s not correct.

Dr Cody: That’s not what the report refers to and that’s not my position.

Senator ROBERTS: Section 42 of the Sex Discrimination Act provides an exemption specifically allowing sporting organisations to exclude someone, including a trans woman, from a competitive category of strength,
stamina or physique matters in a sport. I haven’t heard your office mention this exemption, which is directly relevant to controversies around, for instance, the Flying Bats Football Club. If you do in fact provide independent advice, as you claim to do in the Tickle case, why haven’t you advised the opposing teams that keep getting injured that there is an exemption to protect them in the act?

Dr Cody: It’s not our role to provide advice to individual parties. We conciliate complaints if someone makes a complaint of unlawful discrimination, and we advocate for the human rights of all people within society,
recognising that all people have a right to equality, respect and dignity. That is human rights law as it applies in Australia.

Senator ROBERTS: Do you want section 42—sport exemption—removed from the act?

Dr Cody: No, Senator. It has a legitimate place to play where strength, stamina and physique are relevant to a sporting activity.

Senator ROBERTS: Why strength, stamina and physique—that distinction between male and female?

Dr Cody: The words are ‘strength’, ‘stamina’ and ‘physique’. Different sports have different requirements around each of those, so that’s an important exemption that, when the parliament passed the Sex Discrimination
Act, it included, to ensure that sport enabled people to participate fully within it.

Senator ROBERTS: Let’s move on. Your report recommends repealing or narrowing exemptions in the Sex Discrimination Act—such as section 43A—that allow sex based or faith based exclusions. Broad religious
exemptions are criticised as creating uncertainty and legitimising exclusion. What right do you have to present an amicus curiae brief when you are already clearly heavily biased in favour of Tickle and opposed to religious freedom?

Dr Cody: Our role within the Australian Human Rights Commission is to advocate for the human rights of everybody within our community. That is a part of our role as a national human rights institution. Our role as
amicus curiae is a different role. We’re not advocating in that situation but rather providing clarification to the court on the meaning of the Sex Discrimination Act.

Senator ROBERTS: I note that the Gillard government legislation that caused this ludicrous outcome passed on the voices, with former senator Birmingham—then-head of the Liberal Party in the Senate—on behalf of the coalition calling the bill ‘a very welcome piece of legislation’ and specifically supporting the absurd and illogical gender identity provisions. I’m just clarifying the record. Dr Cody, what is the difference between gender identity and gender? In your answers to Senator Cash you implied there was a clear difference between gender identity and gender. What is the difference?

Dr Cody: I was referring, in my answer to Senator Cash, to how sex is understood within law and in terms of the protections provided in discrimination law. Sex looks at three aspects. Those are biology and physical
characteristics as well as how someone presents themselves as well as their social recognition. Those are the three aspects that relate to how sex is understood under the Sex Discrimination Act and within discrimination law more broadly.

Senator ROBERTS: What about with regard to the differences between gender identity, or people who identify as a gender, and real gender? Does it apply there?

Dr Cody: Within the Sex Discrimination Act, I can refer you to the provision for gender identity, but I don’t have it to hand right at the moment.

Senator ROBERTS: So gender identity is a construct of the law. Is that correct?

Dr Cody: Gender identity is protected as a protected attribute within the Sex Discrimination Act. It’s not only an aspect of the law.

Senator ROBERTS: If someone introduces a bill that says men are the same as women, and it gets through the Senate and the House, that’s the law. Is that correct?

Dr Cody: It’s up to the parliament to pass its own laws, Senator.

Senator ROBERTS: Right. So the parliament can say, ‘Men are the same as women’—end of story, that’s it. Is that right? Thank you. What is the meaning of ‘gender identity’ and ‘gender’?

Dr Cody: Gender identity—if you’d like me to refer to the Sex Discrimination Act?

Senator ROBERTS: Could you read it out, please.

Dr Cody: Yes, certainly.

CHAIR: Senator Roberts, I’m going to share the call after this.

Senator ROBERTS: Okay. I have another set later.

CHAIR: I’ll allow Commissioner Cody to answer your question and then I’m going to share the call.

Senator ROBERTS: Can you come back to me later?

CHAIR: Yes.

Dr Cody: Gender identity, within the Sex Discrimination Act, means ‘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’.

Senator ROBERTS: The keyword would seem to be ‘or’. I’m not a lawyer, I’m not a judge, but that would seem to be the keyword, and it’s used twice in the definition, separating the three characteristics. So you don’t
have to have a gender; you can be whatever you want to be if you identify as such or if you dress as such. Thank you very much.

/0 Comments/by

Restoring Biological Reality to Australian Law

,

I honour the original, genuine feminist movement – a movement of women who fought hard to establish rights that are now under attack.

I am deeply concerned by the recent Giggle v. Tickle Federal Court decision, which highlights how the rights of biological women to have safe, female-only spaces are being eroded by men pretending to be women.

I challenged the Office for Women on whether they truly stand with biological women. I find it incredible that in this day and age, we are even having this conversation.

I asked them directly if women are entitled to safe places where biological men are not welcome. The Office and the Minister repeatedly deflected my questions, claiming these issues are “medical” or matters for the Attorney-General.

They claim to stand for “all women,” yet when pressed on what that means for biological females, they offer no clear protection.

I view this trans activist movement as a destructive force intended to destabilise and divide western civilisation. Rather than encouraging people to continue down this path, we should be helping them love the bodies they were born in.

The irony is not lost on me that our first female Prime Minister, Julia Gillard, legislated the very version of the Sex Discrimination Act that created this mess, one that puts women at risk and ignores basic biological reality.

Australians are fed up with this.

One Nation’s Promise: We will not wait. One Nation intends to amend the Sex Discrimination Act to fix the loopholes created by the Gillard government.

I will continue to pursue this issue until we return to a society that recognises truth, protects women and restores common sense to our laws.

Transcript

Senator ROBERTS: Thank you for appearing today. Women rightly fought hard and long to establish women’s rights through the original, genuine and very real feminist movement. I honour them. I sincerely do. Does the Office for Women support Sall Grover in her case Tickle v Giggle? Sall is otherwise known as Giggle. This case result in the Federal Court recently clearly shows that women’s rights are under attack from men identifying as women as part of the so-called trans activists. Do you support Sall Grover?

Ms Raman: I don’t believe that’s a matter for us. I would direct you to AGD. I think you did canvass this at length last night.

Senator ROBERTS: I did. I will continue to do so. As part of a—

CHAIR: Just ensure your questions are directed to the right people, Senator Roberts. That would be really helpful.

Senator ROBERTS: I am coming to that. By the way, the trans activist movement is part of a movement wanting to destabilise and divide our country. They are modern Marxists. I can’t believe we’re living in a time where this is even a topic of conversation. Surely it would be better to help these obviously unwell people with loving the body they are already born in, not encourage them to continue down this destructive path, which puts women at risk. The Office for Women plays a critical role in driving policies to eliminate domestic, family and sexual violence. I applaud you for that. The recent decision in Tickle v Giggle has diminished the rights of biological women to have safe places.

CHAIR: Senator Roberts, I think we’ve covered this in the sense that case is not a matter for these witnesses.

Senator ROBERTS: My question, Chair, is: does this office accept that women are entitled to have safe places where men, biological or identified, are not welcome? Do women have the right to have that?

Ms Raman: We’re focused on tangible and practical outcomes to close gender gaps. We are guided by our strategy Working for Women. Our day-to-day work is focused on what the Commonwealth can do to keep women safe, ensure families have choice in relation to care and work, as I said before, and improve women’s health and their place in decision-making. When we deal with these things, everyone is safer. All Australians are safer and have freedom and opportunities. Our daily work is about ensuring that we keep women safe. We work on the issues in our strategy to ensure that we get to gender equality.

Senator ROBERTS: What could be more tangible than a man who identifies as a women but is still a man attacking a women? Nothing could be more tangible than that. Nothing could be more safety aware than that. I want to know why Australians should be forced to accept that men can be women when they are not.

CHAIR: It’s not relevant to these witnesses.

Ms Raman: When we deal with the issues that we have in our strategy, these issues almost never come up. When we focus on the issues that are about ensuring that we remove the barriers to ensuring that we can have gender equality in this country, these issues do not come up in our day-to-day work.

Senator ROBERTS: Does the Office for Women stand with biological women, or does this office also include men identifying as women?

Ms Raman: We stand with all women.

Senator ROBERTS: So that’s biological women?

Senator WHITEAKER: What does that term even mean? It’s a ridiculous question.

CHAIR: The witness said all women, Senator Roberts. You are trying to create a divide here.

Senator ROBERTS: Safe spaces for women. I want women’s rights back.

Senator WHITEAKER: How about you leave that up to us to figure out for ourselves.

Senator ROBERTS: That is what I am doing. They’re coming to me saying, ‘For goodness sake, pursue this issue with the Office for Women.’ Senator Cash knows all about it. That’s exactly what we’re doing. I stand for women’s rights as hard fought for and won by the feminist movement decades ago. Do you believe that a man that is born with male genitals and male chromosomes can be anything other than a male?

CHAIR: This is a medical question, Senator Roberts. You are better off in the health department, which is next week.

Senator ROBERTS: If men can be women, does that mean anyone can identify something they are clearly not? For example, if I consider myself to be a six foot six inch basketball player when I’m clearly not, would it be considered delusional?

CHAIR: Again, that is a medical question, Senator Roberts. I would direct you to the health department.

Senator ROBERTS: We’ll get to the final one. Minister, will the government change the law? The irony is that former Labor prime minister Julia Gillard, the first female prime minister in this country, created the legislation that created this mess. She accused Tony Abbott of being misogynist. One Nation will amend the Sex Discrimination Act legislated by the Gillard government that has created this mess. Why don’t you do it before the election and change it?

Senator Gallagher: It’s not a matter for the Office for Women.

Senator ROBERTS: I’m asking the minister.

Senator Gallagher: Well, it’s a matter for the Attorney-General. Her representative appeared last night, as did representatives from Attorney-General’s. I presume you asked the question of them. That’s where it is appropriately made.

Senator ROBERTS: I’m asking you as a minister of the government today.

Senator Gallagher: It does not form—

Senator ROBERTS: You have two years left in your term.

Senator Gallagher: It does not fall within my ministerial responsibilities, Senator Roberts. It is a matter for the Attorney-General.

Senator ROBERTS: You’re a woman and you’re a minister and you’re part of the government.

CHAIR: Senator Roberts, if you want to ask a question about changing that particular legislation, then you are in the wrong place. I believe you have already done that and asked in those areas. You may not have liked the answer—

Senator ROBERTS: I didn’t ask that question yesterday.

CHAIR: Well, you still have time to put it on notice, Senator Roberts, if you would like to do that, to the relevant agency.

Senator ROBERTS: Thank you very much.

/2 Comments/by