By Sarah Kingsley
United Nations Documents
There is a range of legislation including international covenants and Australian law that governs human rights. The base document that outlines all human rights is the UN Universal Declaration of Human Rights. There is also the International Covenant on Civil and Political Rights (ICCPR). The most important relating specifically to women is the UN Convention on the Elimination of Discrimination against Women (CEDAW). This was adopted in 1979 by the UN General Assembly, and entered into force on 3 September 1981.
Universal Declaration of Human Rights
https://www.ohchr.org/sites/default/files/UDHR/Documents/UDHR_Translations/eng.pdf
International Covenant on Civil and Political Rights
This gives effect to the provisions of the Universal Declaration of Human Rights.
https://www.ohchr.org/sites/default/files/Documents/ProfessionalInterest/ccpr.pdf
Convention on the Elimination of Discrimination against Women
CEDAW defines discrimination against women as:
“any distinction, exclusion or restriction made on the basis of sex which has the effect
or purpose of impairing or nullifying the recognition, enjoyment or exercise by
women, irrespective of their marital status, on a basis of equality of men and women,
of human rights and fundamental freedoms in the political, economic, social, cultural,
civil or any other field. (Article 1)”
Australian Law
“Human rights recognise the inherent value of each person, regardless of background, where we live, what we look like, what we think or what we believe. They are based on principles of dignity, equality and mutual respect, which are shared across cultures, religions and philosophies. They are about being treated fairly, treating others fairly and having the ability to make genuine choices in our daily lives.”
Overview:
https://humanrights.gov.au/about/what-are-human-rights
https://humanrights.gov.au/our-work/employers/quick-guide-australian-discrimination-laws
There is an excellent summary in the Submission from the Australian Affiliation of Women’s Action Alliances (AAWAA) to the 2023 Inquiry into Australia’s Human Rights Framework by the Parliamentary Joint Committee on Human Rights:
Australian Human Rights Commission Act 1986
https://www.legislation.gov.au/C2004A03366/2018-12-20/text
This Act articulates the Australian Human Rights Commission’s role and responsibilities. It gives effect to Australia’s obligations under international covenants.
There are both Commonwealth and State laws. These should theoretically not conflict. The Constitution (s. 109) provides that:
“When a law of a State is inconsistent with a law of the Commonwealth, the latter
shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”
Australia signed CEDAW on 17 July 1980 (ie it became a party to it). That means that Australia is obliged to put CEDAW into action in Australia. The most important piece of Australian legislation that does this is the Sex Discrimination Act 1984 (SDA).
Sex Discrimination Act 1984
https://www.legislation.gov.au/C2004A02868/latest/text
https://humanrights.gov.au/sites/default/files/content/pdf/sex_discrim/getting_to_know.pdf
The Act uses the word ‘sex’ not ‘gender’. ‘Sex’ is not defined at the beginning of the Act, but ‘gender identity’ is:
“gender identity means the gender related identity, appearance or mannerisms or other
gender related characteristics of a person (whether by way of medical intervention or
not), with or without regard to the person’s designated sex at birth.”
This definition does, however, imply that ‘sex’ is something you are born with and is distinct from gender identity, and the provisions of the Act make it clear that ‘sex’ and ‘gender identity’ are two different things.
Exemptions (Division 4):
Eg: exemption from the necessity not to discriminate on the basis of sex if:
“the occupant of the position is required to enter a lavatory ordinarily used by persons of the relevant sex while the lavatory is in use by persons of that sex”
“the premises are already occupied by a person or persons of the relevant sex and are not occupied by any person of a different sex from the relevant sex;”
“the occupant of the position is required to enter areas ordinarily used only by persons of the relevant sex while those persons are in a state of undress”
and Article 34:
“Nothing in Division 1 or 2 applies to or in relation to the provision of accommodation, where the accommodation is provided solely for persons of one sex who are students at an educational institution.” (ie it’s OK to do this).
So if it’s OK to provide women-only accommodation at a college, why isn’t it OK to have a women-only club?
and sport:
“Sport is an area where women often suffer discrimination in opportunity and status. Access to sporting teams and the provision of sporting facilities are covered under several sections of the Sex Discrimination Act. However there is an exception to this coverage. It is not unlawful to exclude persons of one sex from participating in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.”
It is clear that on the basis of this legislation and traditional practices in sport, men can be excluded from women’s sport. The problem is another piece of legislation: the Equal Opportunity Act 2010. This threw the cat among the pigeons by enabling men to be classified as women.
State Laws
Equal Opportunity Act 2010 (Victoria)
This is the primary Victorian legislation. It reverses previous understandings and law.
It is important to note that unlike the Sex Discrimination Act, the EOA refers to gender identity, which is defined at the beginning of the Act, rather than sex.
“Under the Equal Opportunity Act 2010, gender identity protects your right to identify as a gender that may or may not be the same as the sex you were designated with at birth. People can do this by living, or seeking to live, as a member of a particular sex or assuming characteristics of a particular sex.”
https://www.humanrights.vic.gov.au/for-individuals/gender-identity
“Examples of gender identity discrimination in the workplace:
Refusing to call someone by their preferred name or use their preferred pronouns. (Genuine mistakes are not against the law but it may be discrimination if it is done in a manner that indicates hostility.)
A clothes shop not allowing a transgender person to use the change rooms that align with their gender identity.”
There is much to be concerned about in the EOA legislation. The provisions erode freedom of speech and belief. They also rest explicitly on highly subjective criteria – the ‘genuineness’ of a ‘mistake’, and ‘a manner that indicates hostility’. How is that to be judged? On someone’s perception? How can it be proved? No test of proof is included.
Many of these provisions are also concerning in that they infringe on basic rights under the UN Declaration and CEDAW
It can be argued that these provisions infringe basic rights to freedom of speech. Freedom of speech and belief are protected in Article 19 of the Universal Declaration of Human Rights (UDHR) and Article 19 of the International Covenant on Civil and Political Rights (ICCPR):
“Everyone shall have the right to hold opinions without interference.
“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds.”
The Australian Government’s Guidelines repeat this protection, which is couched in strong terms:
“The right in article 19(1) to hold opinions without interference cannot be subject to
any exception or restriction…. The right protects not only favourable information or
ideas, but also unpopular ideas including those that may offend or shock.”
There is an excellent analysis and summary in this paper: “Freedom of expression and women’s equality: Ensuring comprehensive rights protection”
There are exceptions under the EOA. Eg:
“Sport exceptions
The Act also includes exceptions that apply to competitive sporting activities. It is not
against the law to discriminate against a person because of their gender identity when
it relates to competitive standards, that is, a competitive sporting activity in which the
strength, stamina or physique of the competitors is relevant.”
In the light of this provision, it is particularly hard to understand how sports organisations are allowing men who identify as trans to participate in women’s teams, and are ignoring protests by women.
“In some instances it is not against the law to provide targeted services when they are
established wholly or mainly for the welfare of people of a particular sex, age, race or religious belief. This could include legal services provided to women for family violence related proceedings.”
I would have thought that this provision would apply to Sal Grover’s app for lesbians. However, in the Grover case (Tickle v Giggle) the court decided that the app was illegal.
The government has issued a number of Guidelines documents which expand and explain the legislation. Eg:
Guideline: Trans and gender diverse inclusion in sport: Complying with the Equal Opportunity Act 2010
This document, issued by the Victorian government’s Victorian Equal Opportunity and Human Rights Commission, is alarmingly biased in favour of transgender ideology.
Among its worrying statements are:
“It is now known that biological sex characteristics include many variations and that sex is not binary.”
“Courts now accept that biological sex characteristics include many variations and that sex is not binary.”
“You should consider a person’s sex to be what they say it is, whether or not it aligns with their sex as recorded at birth.”
“This reflects increasing recognition that hormone levels may not be as relevant to participation as once thought.”
“There is no evidence at the international level of boys or men ‘changing gender’ to reap rewards in women’s sport.”
“It is important to remember that the exceptions that follow in this section only apply to single-sex competitions. It is still unlawful to discriminate against that person in most other areas related to sport – such as non-competitive sport, employment, appointment as a coach or umpire, or the use of toilets, change rooms and other facilities.”“The most important thing is to treat the person like you would anyone else. A trans man is a man, a trans woman is a woman and a non-binary or agender person is a person. Always put the person first and ensure that whatever you do enables them to participate in your sport.”
Anti-Discrimination Act 1998 (Tasmania)
https://www.legislation.tas.gov.au/view/whole/html/inforce/current/act-1998-046
The Act confusingly uses the word ‘gender’ when it seems to refer either to biological sex or to gender identity. This piece of poor drafting calls into question the meaning of many of the provisions of the Act.
Exemptions (Division 2)
Exemption from the provisions of the Act are allowed on the basis of gender but not sex. However, the Act contains many exemptions which are clearly directed towards providing for single-sex facilities etc:
“27. Gender
in the provision or use of facilities, if those facilities are reasonably required for use by persons of one gender only.”“A person may discriminate against another person on the ground of gender in respect of the use of any benefit provided by a club if –
(a) it is not practicable for the benefit to be used simultaneously or to the same extent by both men and women; and
(b) the benefit is provided –
(i) for the use of men and women separately from each other; or
(ii) to men and women in a fair and reasonable proportion.(3) A person may discriminate against another person on the ground of gender in
respect of membership of a club if the membership of the club is available only to
persons of one gender.”“29. Sport
A person may discriminate against another person in a competitive sporting activity by restricting participation to persons of one gender of 12 years of age or more.”
I would have thought that these provisions would apply to Jessica Hoyle’s plan to have women-only gatherings for lesbians.
Gender ID
The most serious question in women’s rights is the increasing tendency of governments to legislate to allow men who identify as women, to be so identified legally. The effect of this is that the word ‘woman’ in legislation means both biological women and men who identify as women.
In Australia, changing legal gender assignment for federal purposes such as Medicare and passports requires only a letter from a treating medical practitioner.
“You do not need to have had surgery and/or hormone therapy for the recognition of a change of gender in federal government records. This means that even though you may not have any related medical procedures, you can still apply to correct the gender information recorded on your personal record.”
Victoria:
Births, Deaths and Marriages Registration Amendment Act 2019 is the primary legislation and brought Victoria into line with many other States and Territories.
The sole requirement to change legal gender is a statutory declaration, ie the person’s signed statement. This is ‘Self-ID’.
Tasmania:
The relevant legislation is the Justice and Related Legislation (Marriage and Gender Amendments) Act (2019), which amended a number of existing pieces of legislation.
https://www.legislation.tas.gov.au/view/whole/html/asmade/act-2019-007
Part 4A is the most important. It allows people over 16 to change their gender legally and the terms under which they can do so.
To do so, all that is required is a statutory declaration. No medical or other interventions are needed. This is ‘self-ID’.