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Sex Discrimination Without Sex

Sex, according to the Australian Sex Discrimination Commissioner, means almost nothing at all.

· 10 min read
Sex Discrimination Without Sex
2008 San Francisco Gay Pride Parade "dykes on bikes". Alamy 

The controversial LGBTQI+ activist Peter Tatchell recently tweeted something heretical for his side of far-left politics: ‘People cannot change biological sex’.

Activists in Tatchell’s circles tend more often to insist that people can change sex, or to reject the concept of sex altogether as a ‘social construction’. Gender-critical feminists took gleeful enjoyment in some of the silliest replies to his tweet from trans rights activists, including University of Sheffield sociologist Sally Hines’ claim that hormones change a person’s biological sex, and minor celebrity transwoman India Willoughby’s agreement with Hines that if Tatchell were to take estrogen, ‘within 12-24 months he would absolutely have changed sex.’

Gender-critical feminists in Australia shouldn’t be too gleeful about this biological illiteracy, however, because it looks like the Australian Human Rights Commission (AHRC) agrees with Hines and Willoughby. The Sex Discrimination Commissioner was granted leave to appear as amicus curiae (‘friend to the court’) in the ongoing case of Tickle v Giggle, and the AHRC is currently reviewing submissions on an application by the Lesbian Action Group for an exemption to the Sex Discrimination Act. Both cases involve a clash between sex and gender identity—a clash which there is not a hope of resolving in a sensible way without a clear understanding of sex and a firm insistence upon the distinction between sex and gender identity.

In Tickle v Giggle, a female-only app excluded a trans-identified male. The Lesbian Action Group have applied for an exemption such that excluding everyone other than ‘Lesbians Born Female’ from an event held on International Lesbian Day would not count as discrimination. While this would mean excluding a lot of people, including all men, as well as straight and bisexual women, the group whose exclusion is most likely to be resisted is, like in Tickle v Giggle, trans-identified males. In both cases, but for different reasons, service-providers and event organizers (respectively) want to exclude on the grounds of (male) sex. There is a question of whether they are allowed to. But it’s a tricky question, because while plenty of sex-based exemptions have been granted at the federal level, it is never made explicit whether the exemption covers all males regardless of gender identity, or only all males without ‘woman’ gender identities (or to put this differently, all males except those who are trans-identified).

Before I depress you with the AHRC’s view of sex—or really, I should say, the AHRC’s view of “sex”, given how far their concept departs from the ordinary biological notion—let me say a little more about what is at stake in these two cases. Australia has law at both the federal and the state level to protect against sex discrimination. The Sex Discrimination Act 1984 has as one of its objects ‘to eliminate... discrimination against persons on the ground of sex’. The Victorian Equal Opportunity Act 2010—to give an example from one Australian state—protects Victorians from discrimination on the basis of a number of attributes, one of which is sex. You would think, therefore, that those administering the law or offering advice on interpretation of the law would have a good sense of what sex is—and because exemptions depend on whether exclusion advances substantive equality between the sexes, a good sense of what those groups are, and so what in/equality between them consists in.

One of the tools offered within the Giggle app (the female-only app named in the case Tickle v Giggle) helped women to find same-sex roommates, in order to have a safer housing experience. Because there is inequality between men and women (at the age they can only afford shared housing) when it comes to physical safety, facilitating connections between women for the purposes of sharing housing would advance equality. That means it would not count as discrimination against men to exclude men from the Giggle app. If it wouldn’t count as discrimination against men, it follows that it wouldn’t count as discrimination against black men, gay men, or men with disabilities. (This will be important later, when we come to the AHRC’s view of whether it would count as discrimination against trans-identified men).

Similarly, because there is inequality between homosexual and heterosexual people—with lesbians being only about 1 percent of the adult Australian population—holding an event that celebrates lesbians and facilitates social connections between lesbians would advance equality. That means it wouldn’t count as discrimination against heterosexuals to exclude them from a lesbian event. Arguably it wouldn’t count as discrimination against men to exclude all men either, even though gay men are homosexual too. A female-only event would be more open to the complexity of female sexual orientation, advance lesbian (and other female sexual minority) equality, and still not do anything to hurt gay men’s equality. If sex is roughly what the biologists say it is, and sex-based exemptions are permitted, then Giggle can exclude all males, including trans-identified males (or ‘transwomen’). (The ‘Tickle’ in Tickle v Giggle is the Applicant Roxy Tickle, a trans-identified male who was initially admitted to the app but then manually removed, and who alleges discrimination on grounds of gender identity). Similarly, the Lesbian Action Group can exclude all heterosexuals, including trans-identified heterosexual males, and can arguable exclude all males, including trans-identified males. There should be no question of it counting as sex discrimination to prevent Tickle from using the Giggle app, or to prevent any male from attending a lesbian-only event (or a female-only lesbian-centred event).

The reasoning so far is premised on two assumptions: one, that sex is biological sex; two, that sex is not gender identity (and vice versa). When we make these assumptions, attempting to make an exception for trans-identified males from the sex-based exclusion of all males looks patently absurd. It would be on a par with taking any other two protected attributes to interact, or one to trump. Compare: a Jewish school may exclude all non-Jews, unless they are indigenous. Or: a programme designed to help people with disabilities enter the workforce may exclude all non-disabled people, unless they are gay. This makes no sense, because the issues are separate. It doesn’t hurt indigenous students for there to be Jewish schools; it doesn’t hurt gay people for there to be disability and work programmes. The equality of these groups can be pursued independently, so there is no reason to make arbitrary exceptions that express a hierarchy of protected attributes.

This takes us to the heart of the issue: those who have accepted the ideology of gender identity appear unable to see a pathway to trans equality that does not involve believing in a change of sex, so they would say it does hurt trans-identified males for there to be female-only events (understood biologically). To be a male with a ‘woman’ gender identity is to be, not just in one terminological sense a ‘woman’, but in every relevant sense female. There are just some anatomical differences between females, on this way of thinking. Thus the two protected attributes sex and gender identity are unlike any other pair we could create from a list of protected attributes. They are the only two such that having one is thought by some people to change the other. It would be like believing in transracial identity or trans-age identity, and thinking that when a person has the relevant identity this also changes their race or age.

In the Sex Discrimination Commissioner’s submission to the Federal Court on the 10th of August (file number NSD1148/2022, obtained by request to the court), it is agreed that Tickle’s ‘claim is properly characterised as a claim of gender identity discrimination’ under the Sex Discrimination Act. The Commissioner redescribes Giggle’s purpose as being for users that are ‘cisgendered female’ or ‘determined as having cisgendered [female] physical characteristics... on review of a photograph provided during the application process’. In a footnote, she explains the term ‘cisgender’ as referring to ‘a person whose gender corresponds to the sex registered for them at birth’. This is trans activist language: instead of biological sex observed at birth, we have ‘sex registered... at birth’, as though things could change at any moment. (Things can change in a small number of intersex cases, but that has nothing to do with the conflict between sex and gender identity). ‘Gender’ appears to refer exclusively to gender identity (if it were a euphemism for sex it would make no sense to talk of it corresponding with sex, and if it were a set of norms and stereotypes imposed on the basis of sex, claiming it to correspond in ‘cisgender’ people would be to relegate the majority of women to being happy with sexism).

Giggle is female-only, so if there has been presumptive discrimination, it would be against biological males. But then it wouldn’t be discrimination under the Sex Discrimination Act, because excluding men to advance equality for women is permitted. But the Commissioner presents Tickle's reasoning that [they] can't have been subject to sex discrimination, because [they] are legally female. [They] takes ‘sex’ in the Sex Discrimination Act to include ‘a person whose sex is “female” by virtue of being a transgender woman’. If Tickle is female, then [they] cannot have been excluded from a female-only app on the grounds of being female. Thus: ‘The Applicant says that because she is “female”, she does not allege that she was discriminated against on the basis of being a “male”. Rather, the Applicant alleges the Respondents discriminated against her on the ground that she is a transgender woman, and not a cisgender woman”. By this reasoning, there is a category of people with ‘woman’ gender identities who we can refer to with either or both of the words ‘female’ and ‘woman’, and any space, service, or provision aimed at sex equality is for all of these people. Excluding some of those people because they are transgender would be morally on a par with excluding people with any other protected attribute.

The Commissioner goes on to agree with Tickle’s reasoning, stating that ‘the word “sex” is not a biological concept... Nor is it a binary concept, limited to the “male” or “female” sex’. She says it ‘takes its ordinary meaning’ (but does not say what this is, and seems to assume it is the trans activists’ meaning), and that ‘It is also broad enough to encompass the idea that a person’s “sex” can be changed’. (And later: ‘the word “sex” encompasses the idea that “sex” is changeable’). There we have it: Hines, Willoughby, and the Australian Sex Discrimination Commissioner all believe that sex (“sex”) can be changed. The Commissioner suggests that for the purposes of Tickle v Giggle, it is sufficient to being ‘of the female “sex”’ that female be recorded on the person’s birth certificate, or if the person has ‘undergone gender affirming surgery to affirm their status as female’. Birth certificates can be changed through statutory declaration in Victoria and Tasmania, and after a few counselling sessions in a number of other states of Australia.

She also doesn’t stop there: while ‘unnecessary to decide in the present case’ of Tickle v Giggle, ‘a person may also be of the female “sex” in other circumstances, [e.g.] if they have undergone hormonal therapy to affirm they are “female” and/or present themselves and are socially recognised as “female”, and even if their sex has not been recorded as “female” on any official register’.

Take a minute to let that sink in. Merely taking cross-sex hormones may be taken to change your sex: that’s Willoughby’s position. Not having surgically or medically transitioned, and not having changed the sex marker on one’s birth certificate, but merely presenting oneself as female and being socially recognised as “female” (whatever that means—securing the cooperation of one’s community by tacit threat of being hauled before the anti-discrimination commission?) may be taken to change your sex. Sex, according to the Sex Discrimination Commissioner, is almost nothing at all.

A Canadian Human Rights Spectacle Exposes the Risks of Unfettered Gender Self-ID
Sydney. London. Toronto.

So. Does Australia still protect against sex discrimination? Yes, and no. Yes, because individuals targeted on the basis of their sex, and on the basis of attributes relating to their sex including their sex characteristics and sexual orientation, still have recourse for being discriminated against. In this respect rights are not pie: expanding the Sex Discrimination Act to include more attributes is good for additional people and not bad for the people originally covered. But also no, because of how exemptions work. The Sex Discrimination Act excludes services delivered to one specific group from counting as discriminatory against everyone else, when those services advance the group’s equality. A second function of the Sex Discrimination Act, then, is to advance sex equality by permitting single-sex spaces, services and provisions where doing so would advance women’s equality. And the Sex Discrimination Act, on the reasoning of the AHRC, no longer does that, because it no longer has an adequate conception of what sex is.

Our only hope is a legal case—whether that will be Tickle v Giggle or some other case as yet unheard of—that challenges the rolling together of biological sex, legal sex, social sex, and gender identity, and clearly separates biological sex (objective, immutable) from gender identity (subjective, mutable) for independent protection. Trans people should be protected from discrimination targeting their being trans, but they should not be protected as the opposite biological sex simply in virtue of identifying as the opposite sex. Biological sex matters, and so do the words ‘male’ and ‘female’ that refer to it. We must keep these things clear, both in the law and in social life, so that we don’t inadvertently advance trans equality at the expense of women’s equality.

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