Australia’s Sex Discrimination Commissioner Anna Cody says “sex” is a broad term not limited to biology or the binary concept.
In a submission to the Federal Court of Australia, Ms. Cody said the term was “broad enough to encompass the idea that a person’s ‘sex’ can be changed.”
The Commissioner said this meant sex should also include non-binaries which would open the door to those that identify as transgender or having no gender.
Ms. Cody submitted these arguments to the Federal Court of Australia, which is considering a legal action by biological man—Roxanne Tickle, who now identifies as a woman—against female-only social media app Giggle.
The sex discrimination commissioner, who is part of Australia’s Human Rights Commission, made the submission to assist the court on the legal definitions of “sex,” “gender identity,” “male,” and “female” under the Sex Discrimination Act (SDA).
Tickle Vs. Giggle
In December 2022, Mr. Tickle filed a claim to the Federal Court accusing the Giggle app of discrimination of his gender identity after his attempts to register on the social media platform were denied. The 2013 amendment made it unlawful to discriminate against someone on the basis of their gender identity.
The app is described as “made for women by women” and its CEO, Sall Grover, removed Mr. Tickle because he had the appearance of a male in an uploaded profile photo.
Mr. Tickle, from New South Wales, is now seeking damages, a written apology, and access to the platform.
However, the Giggle CEO Grover is arguing that she was not discriminating on the basis of gender identity but on sex, defined as a person’s biological features.
This is allowed under exemptions in Section 7D of the SDA, which states that a person may take “special measures for the purposes of achieving equality between men and women.”
However, since the 2013 Labor government amendments, lawyers argue that the exemption has been nullified but there are now inconsistencies in the law.
She said the case was significant because if gender identity protection laws are found to be unconstitutional or unlawful, every gender identity law across the country would be rendered invalid.
“The Australian Human Rights Commission (AHRC) has intervened as amicus curiae [friend of the court] ... the AHRC wrote these laws,” she said. “They are there defending their own laws, so they’re not going to go down without a fight.”
What Is the Definition of A ‘Woman’?
In Ms. Cody’s submission, she states that the definition of “women” in Section 7D can include transgender women.“The Commissioner adopts the submissions made above as to the meaning of ‘sex’: just as the female ‘sex’ can include a trans woman, so too can the word ‘woman,’” she said.
She also argues that other discrimination protections granted to women, such as for “woman’s pregnancy or potential pregnancy,” should also be extended to transgender women.
“Section 4B defines ‘potential pregnancy’ to include the fact that the woman has expressed a desire to become pregnant, or that the woman is perceived as being likely to become pregnant,” she said.
“The repeal of the definition of ‘woman,’ together with the comments in the 2013 [amendment], suggest that a trans woman should be able to access protections like this, which in turn confirms that the word ‘woman’ is intended to include a trans woman.”
Ms. Cody became the sex discrimination commissioner in September. When stepping into her role, she said LGBT concerns were “part of my mandate.”
