Reem Alsalem - the definition of woman

The thread called Tickle v Giggle has more details and also info about crowdfunding - she still needs help. Don't get excited yet because the Australian Fed court may decide against Sall. And even if it decides in her favour, it might not be on the grounds of CEDAW obligations - they might have a different basis.

But she says she will take her case all the way to the highest court in the land if she has to.

Thank you for explaining, this is great news, really gives me hope.

I had no idea how heavy the burden of all that loathing has been - DECADES now of an insidious colonisation of all our women only clubs and festivals and rape support groups and child abuse survivor networks and gyms and dance classes and sporting leagues and knitting circles for goodness' sake.
WE MIGHT GET THEM BACK!!!!!!!!!!!!!!!!!!!
I will personally bathe Sal Grover in champagne all the days of her life if she brings us all this back.

Oh wow on reading this, this Aussie is actually in tears.

In addition to knowing that she was using the definition of woman = biology and had distinguished gender, I read it as the intersectionality under discussion was that of sex (i.e., female biology) + at least one other factor:

The CEDAW Committee also took a very strong stance on to intersectionality, i.e., imploring States Parties to take measures to address the discrimination that they may suffer from as a result of both sex and other factors.

That may be bc my understanding of intersectionality is based on Kimberlé Crenshaw's analysis in "Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Anti-discrimination Doctrine Feminist Theory and Antiracist Politics" and her TED talk. Demarginalizing was a critique of a US federal court decision that found that there was no discrimination against black women bc GM hired black males to work on its factory floor and white females to work in the office. It did not hire black females. The court looked at sex and race separately and since GM hired both blacks and women, it found no discrimination in its failure to hire black women. It seemed to me that was how intersectionality was being used here (i.e., the person in question is female and has at least one other protected characteristic, which would include trans men but not trans women) but Snowypeaks knows much more about Reem Alsalem's position than I do.

From reading other threads, it seems like others may have a different understanding of intersectionality.

To PPs
I now realise why some people thought RA was including TW in her definition of woman - but the bit at the end is governed by her interpretation of "woman" as bio female, therefore "transgender" refers to TM.
Apologies, we were talking at cross purposes to some extent.

Yes, is the short answer.

IANAL either, but from what Sally has said in interviews, if the Australian Federal court accepts that this is the only way CEDAW can be interpreted, then it should reinforce the accepted meaning of the word "woman" as a biological female and that our rights are sex-based (as in the first para you quote) and that our rights cannot be restricted under any circumstances (as in the second quoted paragraph).

So any signatory countries which have conflated sex and gender in law, or restricted women's rights to associate, for example, could be argued to be in breach of CEDAW obligations.

Other states wouldn't be obliged to decide the issue the same way, but a positive judgement for Sall based on CEDAW would tip the scales heavily in our favour.
Just my understanding, IANAL.

I don't understand legalese so I'm grateful to @Snowypeaks and others for translating. Can I ask those who do understand what is written here, could the following have positive implications for those of us outside Australia where laws are being interpreted differently (e.g. I'm in Scotland where the recent Hate Crime Bill doesn't include sex at all)?

"states that disapply the obligation to avoid discrimination based on sex will be in breach of international human rights law

states that place other rights above the obligation to avoid discrimination on the basis of sex will be in breach of international human rights law."

Thanks for sharing.

This is helpful.

“international human rights law does not endorse an interpretation that allows either for derogations from the obligation to ensure non-discrimination based on sex or the subordination of this obligation not to discriminate based on sex to other rights”

In other words…..

states that disapply the obligation to avoid discrimination based on sex will be in breach of international human rights law

states that place other rights above the obligation to avoid discrimination on the basis of sex will be in breach of international human rights law.

I agree with Snowypeaks. I thought the position paper was a very clear and strong endorsement that sex means biological sex and not gender, which is defined separately. IOW, a transwoman is a man, not a woman, for the purposes of the treaties.

Excerpts:

-While not addressing or defining the terms “sex” or “gender”, many foundational human rights treaties, and declarations, including CEDAW, enshrine a prohibition of discrimination based on sex which can only be taken to mean as referring to biological sex

In General Recommendation No. 28, the CEDAW Committee defined “gender” as “socially constructed identities, attributes and roles for women and men and society’s social and cultural meaning for these biological differences resulting in hierarchical relationships between women and men [emphasis added]”. “This understanding of gender clarifies that the term ‘gender’ is not to be equated with women”. It is also clear that the CEDAW Committee did not equate a person who may identify as a woman and a man with someone who is a woman or a man – the latter being defined as either biologically male or female.

it is clear that sex and gender are two different concepts. However, international law does not permit any derogation to the prohibition of discrimination against women based on sex. Where tension may arise between the right to non-discrimination based on sex and non-discrimination based on gender or gender identity, international human rights law does not endorse an interpretation that allows either for derogations from the obligation to ensure non-discrimination based on sex or the subordination of this obligation not to discriminate based on sex to other rights . . .
It is my view that international human rights treaties, including CEDAW, prohibit such derogation under any circumstance, including during a public emergency.

Building on the implicit understanding that the word “woman” refers to biological females, the CEDAW Committee’s reference to lesbian women can only be understood to mean biological females that are attracted to biological females.

Here it is, ahag

Building on the implicit understanding that the word “woman” refers to biological females, the CEDAW Committee’s reference to lesbian women can only be understood to mean biological females that are attracted to biological females. Such a conclusion can be inferred from its description of the term “lesbian” as reflected in the Committee’s view under article 7(3) of the Optional Protocol concerning communication No. 134/2018, which refers to “same sex sexual activity”.
In expressing its view, the Committee mentions lesbian women as one of the groups
of women that experience discrimination (in addition to bisexuals, transgender, intersex, and others).

whoops - and as ahagwearsapointybonnet said (very important, this) - a lesbian is a woman. A biological female.

All I can say is, I hope Reem Alsalem never reads this thread! She has been a strong voice for women and she is being criticised unfairly IMO for writing in a professional manner. She was not asked to elucidate "What is a woman?". She was asked "What is the meaning of the word "woman" in CEDAW?". Unlike the EA, CEDAW does not give a definition of the word woman. So she had to look at the wording of the treaty and analyse it, along with the official guidance. She has to show her workings, if you like, so it's bound to be a longish answer but I think it is very clearly expressed and succinctly argued. She doesn't waste words.

If she had written "Dear Australian Human Rights Commission, a woman is an adult human female. HTH. Regards, Reem Alsalem", (I exaggerate to illustrate my point) they would dismiss it. This is a serious, comprehensive paper which anticipates and deals with potential objections and resolves possible ambiguities. And her conclusions about CEDAW are:

1. CEDAW is unequivocal that a woman is a biological female
2. That her right not to be discriminated against is based on sex, and that this right cannot be restricted.
3. That Gender is not Sex, and woman is not a gender or to be equated with it.
4. All biological females are protected.

The defence have been sent a copy as well as the AHRC, so the AHRC can't pretend they haven't received it or had time to read it.

I read it the same way as Snowypeaks, as a relatively clear (for legalese!) statement that "woman" in the treaty refers to sex, that protections against sex discrimination may not be set below any other claimed rights, and that "lesbian" refers to females attracted to other females. She also refers to "intersectionality", but in the context that lesbians may be at particular risk of discrimination due to being both female (sex) AND lesbian (sexual orientation).

The 3rd paragraph on P3 is especially clear and relevant to the case (tried to copy/paste but can't get it to work on phone!). The bit about "reference to lesbian women can only be understood to mean biological females that are attracted to other biological females"!

So it takes FOUR pages to describe something that dictionaries can describe in three words? Bloody hell, they like justifying their wage packet don't they 😳

What do you mean, please?

I know what a woman is but I also want a career.

I'm quite surprised to read that. Anyway, it's written to assist the Aus Fed Court judges, who of course will be familiar with this kind of thing and will no have no issues with understanding it.

@Emotionalsupportviper
To be honest I wouldn't put much faith in my reading of it. Others in this thread seem to have taken a different meaning from it, and I would tend towards trusting their interpretation more than mine.
There does seem to be this skill that when you are paid a lot of money, you make it more difficult to understand what you are saying. Justifiying all the money perhaps? Academics love doing it, the more words they use, the more authority they think they convey while the rest of us just scratch our heads wondering what on earth they are saying. I guess if you've not really got much to say, or little proof of what you are saying, padding it out with tons of words, especially embiggened words is perfectly cromulent, and who's going to know?

Thank you. I read it and couldn't make any sense of it.

Here's a much nicer image of something to make holes bigger, a stepped drill bit. I confess I bought a set from the middle aisle in Lidl just cos I thought they looked like cute little Xmas trees. But I did actually use one of them the other week in a DIY project.

Alsalem has also previously written about people with trans identities in a very compassionate way, so Tickle's team will struggle to portray her as a raging bigot who can be ignored for that reason.

Exactly, Baroness

MissScarlet,
It's a legal opinion on the interpretation of a treaty. She has to justify her conclusions with reference to the words in the treaty, the guidance about the interpretation of the treaty and concepts of international law. A politician can just say "adult human female" as in the EA2010, but that's not the legal instrument in play here.

It seemed succinct and clear to me, really well written and no wiggle room for the Federal court. They will have to accept it entirely or reject it entirely.

It reads to me as twam and tmaw so intersectionality is important but under the category of biological women and that includes trans and intersex people who are biologically women.

I too agree that that is what she was saying, but she was trying to say it in a non TERFy way, which doesn't really work.