OPINION
News organisations have been lapping up a heated exchange between Senator Michaelia Cash and Sex Discrimination Commissioner Dr Anna Cody, centred on the redundant question of whether transgender women can become pregnant.
What we should really be asking is why the Liberal Party’s senior law officer appears not to understand anti-discrimination law, or why she believes transgender people should not be protected under it.
This week’s Senate Estimates hearings saw Liberal Senator Michaelia Cash questioning Sex Discrimination Commissioner Dr Anna Cody about how protections in the Sex Discrimination Act apply to transgender women.
During the exchange, Senator Cash asked Dr Cody if transgender women could become pregnant, referring to evidence Dr Cody had given in the Giggle v Tickle case.
“No, Senator, clearly trans women cannot become pregnant,” Commissioner Cody said. “The discussion concerned the technical meaning of pregnancy and potential pregnancy within the Sex Discrimination Act.”
A prolonged exchange followed, with Dr Cody repeatedly stating that she did not believe transgender women could give birth, and Senator Cash expressing difficulty in understanding discrimination based on an assumed protected status.
With each round, Senator Cash’s responses became more animated. She exclaimed that if biological men could fall pregnant, she would have to return to school, joking that her convent education may not have covered all the facts.
A cynical observer might conclude the senator was performing for the cameras, generating moments that would translate easily into media outrage, social media engagement, and extended Sky News coverage.
Some sections of the Australian media indeed seized on the moment. Sky News presenters focused heavily on clipped segments of Dr Cody using the phrase “potentially pregnant”, despite longer exchanges making clear her actual meaning.
Commentator Chris Kenny described the Senate Estimates exchange as “tortured” and suggested government policy resembled Monty Python’s Life of Brian, before playing a clip from the film.
Similar themes were repeated by James MacPherson, Peta Credlin, Andrew Bolt, Rita Panahi, and Danica De Giorgio, several of whom characterised the situation as comical or “lunatic”, often accompanied by Monty Python references. Guests called for Dr Cody to step down from her position, and much was made of her annual salary.
Across these segments, a consistent claim was made that Dr Cody had asserted that transgender women could become pregnant. This claim was demonstrably incorrect based on the public hearing transcript.
On Friday Rowan Dean visited the exchange for second time, describing Dr Cody’s explanation of discrimination as “idiocy” and proclaimed that during the hearing she’d said that transgender woman “could potentially become pregnant”. At the time Dean was interviewing Liberal Senator Leah Blyth who had been sitting next to Senator Cash at the hearing.
Senator Blyth claimed that Dr Cody had told the hearing that men could not become pregnant, but transgender women had the potential to become pregnant.
“It was certainly frustrating to sit there and listen to her say a biological men can’t be pregnant, but a trans woman has the potential to be pregnant.” Senator Blyth said describing the current laws as Orwellian.
The West Australian, The Daily Telegraph and The Australian also reported the story, often using framing that suggested Dr Cody had made statements she had, in fact, explicitly rejected.
Prime Minister Anthony Albanese declined to engage in what he described as “culture wars” when asked about the matter on ABC’s Afternoon Briefing.
The takeaway from the exchange should be clearer than the media reaction suggests.
The law exists to prevent discrimination based on assumptions. A woman may be denied employment because an employer assumes she might become pregnant. The discrimination occurs regardless of whether pregnancy is possible or intended.
The same principle applies to transgender women. If discrimination occurs based on perceived potential pregnancy, the protection applies.
This is neither radical nor confusing. It is how discrimination law operates.
One journalist who declined to join the outrage was Ben Harvey from The West Australian. In his Up Late video, Harvey noted that Senator Cash appeared to take “theatrical delight” in the confrontation.
“I absolutely do agree with Anna Cody when she says a trans woman who cannot get pregnant can be discriminated against if someone thinks they might be about to be pregnant,” Harvey said.
“You know it happens, I know it happens, and Senator Cash known it happens. The reason I know she knows that is, because she said so.” Harvey said, before cutting to a section of Senator Cash’s tirade at Dr Cody where she’s states that young women face discrimination from people who are concerned they may fall pregnant.
Senate Estimates is supposed to be a process that provides for accountability and transparency. I think we can see completely through Senator Cash and her colleagues.
