By Stephanie Bastiaan
The Lesbian Action Group’s (LAG) three-year legal battle against the Australian Human Rights Commission (AHRC) begins in the Federal Court today, as the group fights for the right of same-sex attracted women to hold lesbian-only events.
This case marks yet another significant battle for women’s sex-based rights in Australia.
History
In 2023, LAG applied to the AHRC for a five-year temporary exemption under section 44 of the Sex Discrimination Act 1984 (Cth) (SDA). The exemption would have allowed the group to publicly advertise, and host events restricted to “lesbians born female only.”
Amendments introduced by the Gillard Government in 2013 expanded the SDA to prohibit discrimination not only on the basis of sex, but also sexual orientation and “gender identity”.
LAG argued the exemption was necessary to permit lawful discrimination on the basis of biological sex and to shield the group from potential lawfare, including from heterosexual males who identify as lesbians seeking entry to female-only events. The group maintained that same-sex attraction is inherently sex-based and that female-only spaces are essential to lesbian community life.
The AHRC declined the exemption, concluding that granting the request would be inconsistent with the purpose of the SDA and would undermine protections for people covered by the “gender identity” provisions.
LAG appealed the AHRC’s decision to the Administrative Review Tribunal. In January 2025, the tribunal upheld the refusal. Tribunal member Stewart Fenwick ruled that the applicants were “a discrete minority within a group in the community that is already identified by their sex and sexual orientation, characteristics that afford them the protection of the SDA.” He found that LAG sought to “actively discriminate against another group in the community identifiable by their gender identity, a characteristic also protected under the SDA,” and concluded that “endorsing overt acts of discrimination cannot be the intended effect” of the Act’s exemption provisions.
Federal Court Appeal
The focus of the Federal Court appeal will be whether the Administrative Review Tribunal made an error of law in upholding the AHRC’s refusal.
Lawyers for the Lesbian Action Group are expected to argue that the tribunal misinterpreted section 44 of the SDA, applied the exemption power too narrowly, and failed to properly weigh sex-based rights when balancing them against gender identity protections.
The AHRC, in response, will argue that the tribunal correctly interpreted the Act’s purpose and that exemptions cannot be used to authorise discrimination against another class expressly protected under federal law.
The Court will hear detailed submissions on statutory construction and legislative intent before reserving its decision – a ruling that could clarify how single-sex exemptions operate nationwide and set an important precedent for future disputes involving competing protected attributes.
Erosion of women's sex-based rights
This case is another stark reminder of how the 2013 amendments to the SDA have reshaped the legal landscape for women and girls. By inserting gender identity into the Act without explicitly safeguarding female-only boundaries, the Gillard Government left unresolved tensions that are now playing out in courtrooms.
Women are increasingly being forced to defend sex-based rights through litigation, whether in Tickle v Giggle, where Sall Grover was sued for excluding a trans-identified male from a female-only app, or in this case, where lesbians are seeking clarity about their ability to set boundaries based on sex.
The AHRC’s Sex Discrimination Commissioner – funded by taxpayers and originally established to protect women’s rights under legislation introduced following Australia’s commitments under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) – now actively works to oppose women seeking to rely on sex-based protections.
It’s incredibly frustrating to watch the role created to defend women from sex discrimination spend public funds fighting women who want their sex-based rights upheld. The AHRC is an institution captured by activists and is no longer fit for purpose.
Even more frustrating is our weak politicians leaving ordinary Australians to fight for their sex-based rights in court rather than recognising the amendments to the SDA have been an abysmal failure that have promoted gender ideology fiction over biological reality.
LAG’s appeal before the Federal Court is a critical test of the scope of exemptions permitted under the SDA when protected rights collide. Most significantly, it will determine whether biological sex remains an enforceable category under sex discrimination law when weighed against claims based on “gender identity.”
Stephanie Bastiaan is Head of Advocacy at Women’s Forum Australia
Women’s Forum Australia is an independent think tank that undertakes research, education and public policy advocacy on issues affecting women and girls, with a particular focus on addressing behaviours and practices that are harmful and abusive to them. We are a non-partisan, non-religious, tax-deductible charity. We do not receive any government funding and rely solely on donations to make an impact. Support our work today.
| I’ll stand with women ▷ |