Liberal senator questions Human Rights Commissioners over transgender inclusion
Liberal Senator Michaelia Cash grilled several Human Rights Commissioners over their views on transgender women during a Senate Estimates Committee hearing on Tuesday.
The Western Australian senator questioned the commissioners about several decisions made by the Australian Human Rights Commission in recent years.
President of the Australian Human Rights Commission, Hugh de Kretser, was asked by Senator Cash who he considers to fall under the legal description of being a woman in Australian law. He responded: “An adult human female,” before adding, “and it includes transgender women.”
In his opening address, de Kretser noted that the recent Tickle v Giggle case had received significant public attention and had provided important judicial consideration of key terms in the Sex Discrimination Act.
Senator Cash repeatedly asked whether the Full Federal Court ruling had prevented a “women-only” app from excluding what she described as “a biological man who identifies as a woman.”
Sex Discrimination Commissioner Anna Cody responded that while the court had found discrimination had occurred, the terminology Senator Cash was using does not appear in the Sex Discrimination Act.
“That’s not the term the Full Federal Court was defining,” Commissioner Cody said. “What it defined was what sex means under the Sex Discrimination Act.”
Commissioner Cody explained that the ruling confirmed the Act considers biological factors while also accounting for social recognition and presentation.
When Senator Cash asked if the law now allowed men to put on dresses and be recognised as transgender women, Commissioner Cody replied that physical presentation is one of several elements considered under the Act.
Lesbian Action Group exemption
Senator Cash then turned to the Commission’s 2023 decision to refuse an exemption application from the Victorian-based Lesbian Action Group, which sought to run events excluding transgender women.
She asked each commissioner how they had voted on the request.
Commissioner Cody said she had opposed the application. Human Rights Commissioner Lorraine Finlay said she had supported granting the exemption. De Kretser and several other commissioners said they did not hold their roles at the time the decision was made.
De Kretser said he had reviewed the decision and agreed with its outcome, noting Commissioner Finlay was the only member in favour of granting an exemption.
International Women’s Day event
Senator Cash later raised an International Women’s Day event advertised as being “for and by” transgender women.
She told the committee the event had been organised by Jackie Turner, Director of the Trans Justice Project, and asked whether it was lawful to advertise a transgender-only event.
Commissioner Cody said she did not have sufficient information about the event but noted the Sex Discrimination Act allows for “special measures” to address substantive inequality.
Speaking to Star Observer, Jackie Turner said Senator Cash had her facts wrong. Turner said she was a guest speaker, not the organiser, and the event was open to all. The event was organised by the Sydney-based Inner City Legal Centre.
“It’s so bizarre to be singled out in this way, especially when she had the facts of the event totally wrong,” Turner said.
“Bullies like Senator Cash try to intimidate people in our communities, but it’s hard to take them seriously when they don’t even do their basic homework.”
When the hearing resumed after a break, Commissioner Cody informed Senator Cash that the event had been open not only to all women but also to men.
Pregnancy provisions debate
Senator Cash then asked whether Commissioner Cody’s amicus curiae submission in the Tickle v Giggle case argued that pregnancy protections under the Act applied to transgender women.
“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.”
When Senator Cash asked whether trans women could be “potentially pregnant,” Commissioner Cody again said no.
She explained that discrimination could still occur if someone treated a transgender woman unfavourably based on the mistaken belief that she could become pregnant.
“If someone is treated unfairly on the basis of pregnancy or potential pregnancy, that constitutes unlawful discrimination,” Commissioner Cody said.
Senator Cash said she remained confused by the explanation. A heated exchange followed as the Commissioner repeated that the issue concerned discriminatory assumptions, not biological capability.
