Sarah Henderson, Sall Grover (the founder of Giggle, a female-only social media app), and Michaelia Cash. Photo: Michaelia Cash Facebook.
Australian Human Rights Commission executives got a grilling they hadn’t expected on Tuesday (26 May) during a relentless session of Senate Estimates over the issue of gender identification and the current legal definition of a woman.
Shadow attorney-general Michaelia Cash took no prisoners as she demanded to know how the law defines biological sex and exactly who, from among all the Commission’s bosses, believed transgender women should be allowed to be part of exclusive women’s gatherings, no exceptions.
When she asked the Commission’s president, Hugh de Kretser, “What is a woman?”, he replied that a woman was “an adult human female” before adding “and includes a transgender woman”.
Senator Cash could barely believe what she was hearing and demanded to know how an adult human female could also be a transgender woman.
Mr de Kretser referred to the Giggle v Tickle judgments of the Federal Court, regarding the legality of the membership policies used on Giggle, a social media app for women.
Giggle excluded trans women from their membership policy and withdrew membership from transgender woman Roxanne Tickle.
Tickle brought the case against Giggle, and in August 2024, the court found that Tickle had been indirectly discriminated against under the Sex Discrimination Act.
Senator Cash said the Estimates exchange has exposed “the madness” of the Act and its failure to define biological sex.
“Most Australians would find that astonishing,” she said.
“The Giggle v Tickle case confirmed what many women already feared: the law as it stands does not adequately protect single-sex spaces for women and girls. The law that was meant to protect women is now being used against them.”
The Liberal Senator took Sex Discrimination Commissioner Anna Cody to task over the Commission’s refusal to allow the Lesbian Action Group (LAG) to exclude transgender women from its public events.
LAG had sought an exemption to the Act so it could hold public events exclusively for lesbians who were born female.
It particularly wanted to do that for an International Lesbian Day celebration, but the Human Rights Commission rejected the request and LAG’s later appeal to the Administrative Review Tribunal was also dismissed.
But the Federal Court allowed LAG’s appeal and ruled that the tribunal’s decision should be set aside.
Senator Cash called all of the relevant AHRC Commissioners present at Tuesday’s hearing to the microphone to demand whether they had personally voted to deny the exemption for the lesbian women’s group.
Dr Cody confirmed she had voted against LAG’s request; Mr de Kretser said it all happened before his time at the Commission, as did Race Discrimination Commissioner Giridharan Sivaraman.
But Human Rights Commissioner Lorraine Finlay said she had voted to allow the Lesbian Action Group to meet publicly without transgender women, but was overruled in the Commission.
An even more bizarre exchange between Dr Cody and Senator Cash arose over the issue of pregnancy.
Dr Cody conceded that a transgender woman, a biological male, cannot become pregnant, but argued that pregnancy protections in the Sex Discrimination Act could still apply to a transgender woman based on potential pregnancy.
When asked what then stops a man from putting on a dress and walking in to claim the same protections, Dr Cody answered that it would be up to a court to decide.
“That is not satisfactory. The law is in chaos,” Senator Cash subsequently said.
“It is an insult to women who face real discrimination because they can biologically become pregnant, to have those protections twisted beyond all recognition.
“This is not a fringe debate. These are real consequences for real women, in shelters, in prisons, in sport, and in online spaces created specifically for them.
“A Coalition government will fix this. We will amend the Sex Discrimination Act to define biological sex as male or female, the sex a person was at birth.
“It’s not radical. It’s common sense.”
Fellow Liberal Senator Sarah Henderson joined the session late but also vigorously pursued the issue.
She related the example of an (unnamed) women’s refuge centre with a policy to ban all men from the premises after 10 pm each night, out of concern for the safety of the women inside.
But men were turning up at 9:45 pm wearing dresses and saying they identified as women and must be allowed inside – and the centre was unable to refuse them by law.
When Mr de Kretser suggested that the centre could contact the Human Rights Commission for help, Senator Henderson said the Commission had already done immense harm.
Greens Senator David Shoebridge tried to change tack when it came to his turn to ask the Commission questions, but Senators Cash and Henderson kept forcefully bringing it back to the issue of the rights of biological women versus those of transgender women.
The AHRC’s battered president and commissioners only found relief from the Coalition’s onslaught during One Nation Senator Malcolm Roberts’ line of questioning.
His questions were so nonsensical that the commissioners couldn’t have answered even if they wanted to.
When asked to explain his questions more clearly, Senator Roberts resorted to lines such as, “that’s all I’ve got”; “the law is an ass”; “thanks for your attendance”.