Australia’s Discrimination Commissioner asserts that sex should not be limited to a person’s biological characteristics.
Australia’s Sex Discrimination Commissioner Anna Cody believes that the concept of “sex” is not limited to biology or the binary notion. According to her, the term is broad enough to encompass the idea that a person’s “sex” can be changed. This means that sex should also include non-binaries, transgender individuals, and those who identify as having no gender.
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Ms. Cody presented these arguments to the Federal Court of Australia in response to a legal action by Roxanne Tickle, a biological man who now identifies as a woman, against the female-only social media app Giggle.
As part of Australia’s Human Rights Commission, the sex discrimination commissioner submitted her views to assist the court in defining “sex,” “gender identity,” “male,” and “female” under the Sex Discrimination Act (SDA).
According to Ms. Cody’s submission (pdf), the SDA was intentionally amended in 2013 to use the term “different sex” instead of “opposite sex” to acknowledge that sex is not a binary concept.
Tickle Vs. Giggle
In December 2022, Roxanne Tickle filed a claim with the Federal Court, accusing the Giggle app of discriminating against his gender identity after his attempts to register on the platform were denied. The 2013 amendment made it illegal to discriminate against someone based on their gender identity.
Giggle, described as a social media app “made for women by women,” removed Mr. Tickle from the platform because his uploaded profile photo depicted a male appearance.
Mr. Tickle, from New South Wales, is now seeking damages, a written apology, and access to the app.
However, Giggle CEO Sall Grover argues that the removal was not based on gender identity but on sex, referring to a person’s biological features.
This argument falls under the exemptions outlined in Section 7D of the SDA, which allows for ”special measures” to achieve gender equality.
Nevertheless, lawyers argue that the 2013 amendments have nullified this exemption, leading to inconsistencies in the law.
“Gender shouldn’t be there. If you want to have anti-discrimination laws for gender, have it in the general anti-discrimination act, don’t have it here because it’s just muddled the whole thing,” Ms. Grover previously told The Epoch Times.
Ms. Grover believes that this case is significant because if laws protecting gender identity are deemed unconstitutional or unlawful, all gender identity laws in the country would be invalidated.
The Australian Human Rights Commission (AHRC) has intervened in the case as amicus curiae (friend of the court) since they were involved in drafting these laws. They are determined to defend their own legislation.
The trial is scheduled for April 9, 2024.
What Is the Definition of A ‘Woman’?
In her submission, Ms. Cody argues that the definition of “women” in Section 7D can include transgender women.
She states, “Just as the female ‘sex’ can include a trans woman, so too can the word ’woman’.” She also believes that discrimination protections granted to women, such as those related to pregnancy, should be extended to transgender women.
Ms. Cody emphasizes that the repeal of the definition of “woman” and the comments made during the 2013 amendment suggest that a trans woman should have access to these protections, confirming that the term ”woman” is intended to include transgender women.
Ms. Cody, who became the sex discrimination commissioner in September, has made LGBT concerns a priority in her role.
“I think that now is a really good time to focus on those priorities,” she told the Sydney Morning Herald.
What implications could the outcome of the legal battle between Roxanne Tickle and the Giggle app have on the interpretation and application of the Sex Discrimination Act
Sex, it should be based on biological sex, not identity,” said Giggle CEO Sall Grover.
A Broad Definition of Sex
Commissioner Anna Cody believes that the definition of “sex” should be broadened to include non-binary individuals and those who identify as having no gender. She argues that the concept of “sex” goes beyond biology and should encompass a person’s self-identified gender.
This understanding of “sex” aligns with the larger conversation surrounding gender identity and inclusivity. It recognizes that gender is not solely determined by biological characteristics, but also by an individual’s deeply held sense of self. By expanding the definition of “sex,” the rights of transgender individuals and non-binary people are upheld and protected.
Ms. Cody’s submission highlights that the 2013 amendment to the Sex Discrimination Act was a deliberate step towards recognizing the non-binary nature of gender. By replacing “opposite sex” with “different sex,” the law acknowledges that sex is not limited to a binary system of male and female. This amendment reflects a growing understanding of gender diversity and the need for legal protection for all individuals, regardless of their gender identity.
The Legal Battle
The legal battle between Roxanne Tickle and the Giggle app brings into focus the question of how the law defines “sex” and “gender identity.” Mr. Tickle argues that his gender identity as a woman should be recognized and respected by Giggle, thereby allowing him access to the female-only app. However, Giggle contends that their decision to remove Mr. Tickle was based on his biological sex, which they believe is a valid factor for determining eligibility for their platform.
This case raises broader questions about the balance between accommodating gender diversity and allowing for gender-exclusive spaces. While it is crucial to promote inclusivity and ensure equal rights for transgender individuals, there are situations where certain spaces are designed with the intention of providing a safe and supportive environment for individuals of a particular gender. Striking a balance between inclusivity and the preservation of such spaces is a complex challenge that courts and lawmakers must navigate.
The outcome of this case will have important implications for the interpretation and application of the Sex Discrimination Act. It will shape the legal landscape surrounding gender identity and the rights of transgender individuals in Australia. The court’s decision will provide clarity on whether sex should be understood as a broader concept that encompasses gender identity, or if it should be limited to biological characteristics.
A Step Towards Equality
Expanding the definition of “sex” to include non-binary individuals and those who identify as having no gender is a significant step towards achieving gender equality and inclusivity. By recognizing and affirming the diverse experiences and identities of all individuals, society can move towards a more inclusive and accepting future.
It is crucial that laws and policies reflect the evolving understanding of gender identity and ensure that all individuals are protected from discrimination and prejudice. By broadening the definition of “sex,” Australia can take a progressive stance towards inclusivity and affirm the rights of transgender individuals and non-binary people.
The outcome of the legal battle between Roxanne Tickle and the Giggle app will shed light on the direction Australia is taking in terms of gender equality and inclusivity. It will provide an opportunity to establish clear guidelines and legal protections for transgender individuals, ensuring that they are not discriminated against based on their gender identity.
Commissioner Anna Cody’s arguments before the Federal Court of Australia underscore the importance of a broader understanding of sex and gender identity. Through her submission, she contributes to the ongoing dialogue and paves the way for a more inclusive and equitable society.
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