Australian lesbian group’s fight to bar trans women to return to tribunal after federal court win | LGBTQ+ rights
A Victorian lesbian group has won a legal appeal in its case over the exclusion of transgender women from public events after the federal court overturned a decision by the Australian Human Rights Commission (AHRC).
The decision, issued Wednesday afternoon, means the case will return to the administrative review court for another decision. The Lesbian Action Group called the finding a “definite win”, while Equality Australia said the judge “identified legal errors in the court’s reasoning”.
In 2023, the Lesbian Action Group (LAG) applied for a five-year exemption from the AHRC under the sex discrimination act (SDA) to allow it to exclude transgender and bisexual women from public events said to be only for lesbians assigned female at birth.
The commission ruled against the LAG, and the group asked the administrative appeals court, now known as the administrative review court, to overturn the decision. The court upheld the AHRC last January, prompting the LAG to take the case to federal court.
On Wednesday, Judge Mark Moshinsky ordered the court’s decision to be annulled.
Moshinsky said exemptions to the SDA may be allowed, given that “the word ‘sex’ in the SDA, properly interpreted, means biological sex” and that the law is not intended to eliminate discrimination “at all costs.”
Contrary to the court’s decision, it found that it was possible for discrimination to be “justified” if it had an overall positive outcome.
It also found that the court had failed to take into account two fundamental principles: “the indivisibility and universality of human rights” and “everyone is free and equal in dignity and rights”.
The historic case is at the center of a heated debate over the rights of transgender people and their freedom to associate in public, and raises legal questions about gender-based rights in Australia.
In previous hearings, the commission cited the landmark Tickle v Giggle federal court decision, which found that transgender women are women and should be able to access women’s services, such as LAG events.
Moshinsky said that he would not consider it because the appeal of this decision was in the courts.
The AHRC said the court had not decided whether it would grant the relief sought by the LAG or make findings about the “lawfulness or merits of the proposed events”.
“The court has decided that these questions will be reconsidered by the Administrative Review Tribunal,” the AHRC said in a statement.
“The Court confirmed that when considering whether an exemption should be granted, it is appropriate to consider the extent to which the exemption would permit discrimination.
“The Commission will review the Court’s reasons for its decision. The Commission is committed to fulfilling its role independently, impartially and in accordance with the law, including due consideration of human rights issues.”
But LAG spokeswoman Nicole Mowbray told reporters outside court that the verdict was a “definite win”.
“We respect them [transgender people’s] space and their right to do what they want to do, all we want is our right to have our own space respected,” he said.
Equality Australia legal director Heather Corkhill said the LAG had succeeded “on two technical points of the legal process” and that the decision was “not a decision on whether it is legal or justified to exclude trans women”.
“The court did not uphold discrimination against transgender women and did not decide whether to grant immunity,” Corkhill said.
“He identified legal errors in the court’s reasoning, so the matter needs to be re-evaluated.
“More importantly, fundamental questions about transgender rights remain undecided in this case.”
