Australian legislation discussion, to avoid derailing other threads

[ChokkaQuokka]

Since this has come up in a few threads, to avoid derailing them here is a new Oz-specific thread.

The key document to note is the federal Sex Discrimination Act. https://www.legislation.gov.au/Details/C2014C00002

Within that, Clause 42(1) makes it clear that single sex sport is allowed.

42 Sport
(1) Nothing in Division 1 or 2 renders it unlawful to discriminate on the ground of sex, gender identity or intersex status by excluding persons from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.

In addition, Clause 39 allows for single sex and/or orientation-specific voluntary bodies.

39 Voluntary bodies
Nothing in Division 1 or 2 renders it unlawful for a voluntary body to discriminate against a person, on the ground of the person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, breastfeeding or family responsibilities, in connection with:
(a) the admission of persons as members of the body; or
(b) the provision of benefits, facilities or services to members of the body.

anyone who tries to say different is lying about Australian law – and yes, Kieran Perkins, I’m looking at you. After our World Cup loss just now, believe me, everyone in this country knows what a woman is, and knows what a lesbian is.

what does this mean for the Tasmanian case? Tasmania is the one state where sex has been replaced with “gender” (and separately “gender identity”) in its anti discrimination legislation. The request for an exemption was almost designed to be rejected. In any other state, single sex sporting events, swimming events and organisations don’t get exemptions because they don’t need them. But it seems to me that federal law would override Tasmanian law if someone took it to the High Court (that said, IANAL).

if there is interest I will summarise other state legislation in subsequent posts.

There’s a good article by Miroslav Imbrišević that also discusses the Australian Sex Discrimination 1984 Act:

https://idrottsforum.org/feature-imbrisevic220623/

Thanks very much @ChokkaQuokka

i would be interested in learning about the Victorian position.

Thanks Chokka. I got too busy to look up where Kieran Perkin’s statement I discussed, but have done so now. Although, you probably remember it from the news in June yourself.

The way he has discussed the law is clear that he believes the bar for evidence is low. He has shown that he fully believes that in some cases lowered testosterone maketh ‘a woman’.

And his description of women’s concerns as ‘angst’ and the gaslighting terminology of denying those males are still ‘men’ is deplorable.

https://amp.abc.net.au/article/102486230

“If Australia's governing bodies from those same sports adopt the ASC guidelines it would put them at odds with their international federations, but if they follow their international federation policies, they risk breaking Australian law.
Australian sport must comply with the Sex Discrimination Act, which makes it unlawful to discriminate, harass, or victimise on the basis of sex or gender identity.”

”Exemptions are allowed in sport where unfair advantage or safety risks can be objectively proven.”

And then later.

“Complications could arise where Australia hosted an international event in a sport where domestically transgender women were allowed to compete, but internationally they were not.”

“An athlete excluded under such conditions could challenge the decision in court.”

“"When an international governing body is owning and managing a competition in Australia, do their international guidelines supersede the, I guess the context of Australian law? That would be an interesting one for us to navigate," Perkins said.”

There is a well organised group of female athletes who continue to lobby against inclusion on the basis that hard fought gains in women's sport are being eroded by the inclusion of transgender women.

"I understand their angst," Perkins said.

"I think one of the things we can all agree on is that gender equality does not exist in Australian sport.

"There is so much ground still to be made to get equity for women in… on-field validation and performance, executive roles, coaching roles, and on it goes.

"There is important ground being made already and there's more ground to be made, and we absolutely cannot let that go and nor would we look to let that go.

"What I asked them to acknowledge and work with us on is an understanding is that the blunt imagery that's brought forward in this dialogue, that's creating those very extreme positions that people are taking, is not helpful and does not actually reflect the reality.

"We've only recently heard in political debate the usage of the language of 'men wanting compete in women's sport'. That's not the case.

"That's not the problem that we're trying to contend with here. This is a very different and nuanced issue."

Thanks Chokka, I am interested in learning about the NSW position.

Also, regarding community sport as quoted in the above article: "Community sport is one area where obviously inclusion is unquestioned and absolutely needs to be open and safe for all”. How is that supposed to work? I can’t see how inclusion can be safe when it comes to team sports like football/soccer

This might be a place to start.

https://reduxx.info/thousands-of-complaints-filed-after-trans-youtuber-allowed-to-play-on-womens-football-league-reportedly-injured-players/

https://www.mumsnet.com/talk/womens_rights/4775535-womens-fifa-world-cup-2023?reply=125085650

and this link is pretty important too as it shows the ramifications of speaking out:

https://www.dailymail.co.uk/news/article-12040505/amp/Transwomen-female-sport-critic-Kirralie-Smith-hit-AVO-protect-trans-activist-player.html

https://antidiscrimination.nsw.gov.au/anti-discrimination-nsw/organisations-and-community-groups/exemptions-and-certifications.html/#:~:text=The%20Anti%2DDiscrimination%20Act%201977,essential%20requirement%20of%20the%20job.

NSW law specifically allows for exceptions and exemptions, including for single sex devices and on the grounds of homosexuality.

fun fact: NSW law doesn’t proscribe discrimination against heterosexual people, though federal law would.

Furthermore in NSW law

Section 57 of the Anti-Discrimination Act says that voluntary bodies (other than registered clubs, building or friendly societies, credit unions and some cooperative housing societies) can discriminate in relation to their admission to membership and the provision of benefits, facilitates or services to members.

https://antidiscrimination.nsw.gov.au/anti-discrimination-nsw/organisations-and-community-groups/volunteers-and-voluntary-organisations.html

Thank you, interesting to read both the NSW legislation and about men / trans women in women’s football here in Australia. Does this mean that, as men are able to access women’s sports teams by identifying as women, they could potentially access women-only groups set up using exemptions under the ADA? I suppose it hasn’t been tested yet.

Tbh I am quite surprised that Australia so far has been accepting of men in women’s sports - perhaps because this isn’t widely known/heard about/understood as a possibility? Also interesting that the highest profile player (though not the only the only one) is from the US

This is an interesting Insight episode done by the SBS. they aimed for balance. It was teeth grinding in some spots but I think they might have got better balance than we have seen.

On it is Caroline Layt who played NSW representational rugby in the 00s and even won a 'Women in sport' award at that time. There is also Mianne Baggar who is a Danish Australian gold pro who in the 00s changed the global ruling so that Baggar could compete as a woman. Baggar now understands what they did and is vocal about how this should not be happening now. I listened to a seminar with Baggar and Dr Hilton and Coach Blade (I think it was Coach Blade) and watched the strengthening of Baggar's mind about the topic.

Harper was on there too. Tickle got to contribute too.

Miller the current male who plays rugby in Broken Hill was not included. Miller is an ex-champion aquatic sportsman who transitioned and is in their 50s and plays with the local women's team. Miller is very vocal on twitter. Hates it pointed out that there are no females of equal age on the team, it is all 20s & 30 year old women. And that female people in their 50s are unlikely to be playing rugby against women who are that much younger, due to injury risk and because they may not be able to keep up. Miller absolutely hates that unarguable logic being stated.

Some awesome women were on the panel though.

You’re right, these exemptions have never been tested. Which is why the Tickle vs Giggle case is so important.

My read is that because single-sex sports are allowed, but not single-gender, sports that choose to allow TW in women’s sport leave themselves open to being required to make the sport fully mixed sex. If you Google exemption discrimination lawn bowls, you’ll see that in Australia lawn bowls can’t be single sex anymore because strength, size and other physical factors aren’t relevant to competition, which is the requirement in federal law.

I don’t think TW in women’s sports is widely accepted in Australia – the soccer case linked above resulted in numerous complaints but the administration responded by requiring the complainants to be “educated” about gender.

Oh look

https://x.com/salltweets/status/1695195948379525372?s=46&t=HTxp6zC_d4GZ2FFv4a-YeQ

Here is Gillard explaining what a woman is! I wish they had asked her about the Anti-discrimination act to get her to clear up what she believes it means since her government made the additions .

@Helleofabore
didn’t they ask that as another question and she said “well I’m not going to tell a subsequent government what they should do?” I’m sure I saw that as a different tweet, perhaps this one ?

twitter.com/Maggie_Shhh/status/1695219015332106522?s=20

@ChokkaQuokka that case makes it seem pretty entrenched to me, if you’re not allowed to complain 😖
thanks to the people updating this. Separately but related, does anyone know where the link is for the Vic lesbian group applying to hold a women only session? Have I missed the deadline on signing that?

Gillard might have thought she’d erased Sex in the Sex Discrimination Act but they forgot to remove the bit about only women being subject to pregnancy discrimination. So I wonder if efforts to define sex as a feeling in men’s heads would actually survive a High Court challenge.

I’m not a lawyer but I wonder about the legal tactics of GC activists in Australia.

Tickle v Giggle might well fail because of the specific circumstances and because Giggle is a commercial entity offering a commercial service. As such it can only provide a single sex service if one of the exemptions applies. And I’m not sure Section 32 (“services the nature is which is such rba r they can only be provided to members of one sex”). So even if Tickle is ruled to be male, it’s not clear that a social media platform can be single sex.

Likewise I don’t understand why Lesbian Action Group doesn’t just use its section 39 exemption as a voluntary body to have a service just for lesbians instead of asking for permission from the Human Rights Commission, and then sue anyone who won’t rent them space for discrimination. Especially any space that rented to a trans specific group. Let the genderists argue that males who haven’t changed their bodies or their birth certificates are nonetheless female according to an Act that clearly makes out that sex and gender identity are different.

@Helleofabore you’ve got until 28th August I think. I thought I posted the link before - it’s just an email address I think.

DM me if you want drafting help. I’ve not submitted under my own name but have helped with another draft.

https://humanrights.gov.au/our-work/legal/exemption-applications-under-sex-discrimination-act-1984-cth

found it. You’ve got until Tuesday

@Codlingmoths Here is the link to make a submission

https://humanrights.gov.au/our-work/legal/exemption-applications-under-sex-discrimination-act-1984-cth

DM me if you want drafting help

I don't know if this would be of interest to any Australians but Sky New are cockahoop over it. Facebook up to shenanigans regarding one of the companies they employed as fact checkers. In this instance it's regarding partiality over the forthcoming referendum.

Gosh, pushing a particular narrative over a devisive issue, couldn't possibly be happening with regard to something else, could it?