Tribunal says men who identify as lesbians cannot be excluded from lesbian events

Tribunal says men who identify as lesbians cannot be excluded from lesbian events

A state Tribunal has denied Launceston woman Jessica Hoyle’s appeal (which was made in conjunction with LGB Alliance Australia) to obtain an exemption under Tasmania’s Anti-Discrimination Act in order to hold a lesbian women only event excluding trans-identifying males.

The application for the exemption was initially refused by Tasmanian Anti-Discrimination Commissioner Sarah Bolt in July. Last Thursday, the Commissioner’s decision was upheld by the Tasmanian Civil and Administrative Tribunal.

In her initial application for exemption, Hoyle sought to be able to “discriminate against biological men on the basis of sex”, because “as lesbians we find it difficult to meet each other and to be in a safe environment away from the eyes of biological men”.

In her July decision, the Commissioner regarded it odd that Hoyle would want to exclude biological males who identify as women, and yet considered using a male DJ/cameraman at the event. The Tribunal similarly could not get its head around this (nor the concept of biological sex), stating:

“The applicants propose to exclude “biological males” from their event. The substance of the application makes it clear that the intention is to exclude from the proposed female-only event some males (but not transgender or transexual men or Derek the DJ and cameraman) and also transgender and transexual women, that is, those persons identifying as female in circumstances where that identity does not correspond with the gender identity assigned them at birth or their birth gender. The exclusion of such persons engages the provisions of the act prohibiting direct discrimination on the basis of gender and gender identity.”

The Commissioner also said the exemption could not operate without undermining a person’s right to privacy and that intrusive questioning could result in potential breaches of the Act (which makes offensive, humiliating, intimidating, insulting and ridiculing conduct on the basis of gender identity unlawful) and could constitute sexual harassment. The Tribunal similarly raised concerns as to how the exemption would be given effect.

The Tribunal ultimately ruled that there was insufficient justification for the exemption under the Act, and that there was no other justification for an exemption.

“While the applicants may not wish to comply with the Act and find aspects of its application to transgender and transsexual women to be irksome, particularly in the context of the event they would like to hold, that is not sufficient justification for granting the exemption,” said tribunal member Kate Cuthbertson.

Hoyle told The Australian she was disappointed with the decision, but would fight on, all the way to the High Court if necessary.

“This decision erases the rights of women and freedom of association for lesbians,” said Hoyle.

“It is harmful to everyday, average lesbian women and gay men, who just want to be able to meet one another in a safe environment, and not have members of the opposite sex harass us.”

“I’m all for transgenders and transsexuals having their own events, their own spaces, but (they ought) not force themselves on to anybody else’s rights. We are seeing in this country the erasure of women’s rights.”

Without commenting on the legality of the decision, a couple of points are worth noting here.

First, there doesn’t seem anything particularly odd about wanting to exclude men who identify as lesbian women (who are attracted to lesbian women) from an event for same-sex attracted lesbian women, while simultaneously hiring a gay man to provide services at the event (the man was a member of LGB Alliance Australia and known to and trusted by the women). Part of the purpose of the event appears to be so that same-sex attracted women can meet and socialise with women of the same sex without being bothered by males who are either romantically attracted to them or otherwise.

Indeed, in her original application, Hoyle notes that “this is an event to celebrate Lesbians and in particular, provide a safe venue without unwanted presence, attention or aggression of male-bodied people...Our experience is that trans-identifying males who are heterosexual have pressured and bullied women to make themselves accessible to the sexual advances of men.” (the BBC published an in-depth story on this last year). A gay man who is providing a service at an event does not seem problematic in this regard.

It is somewhat ironic that sex not being a protected attribute under the Act, the applicants sought to exclude on this basis in order to hold a women-only event, and yet the protections for gender-identity are such that they could not even do this. In other words, sex-based protections are nil and void no matter how you swing it.

Second, the Tribunal does not appear to have given fair consideration to the applicants’ argument that “if the exemption was granted there would be no need to undermine a person’s right to privacy or undertake intrusive questioning as they ‘can tell the difference between males and females’.” The Tribunal dismissed this point as an assertion that was “not further explained”. But does it really need further explanation? In the vast majority of cases, most people can tell the difference between a biological male and a biological female. The exceptions under the Act allow discrimination on the ground of “gender” when it comes to religious institutions, education, types of employment, accommodation and the provision of facilities, without envisaging problems when it comes to distinguishing between genders (at first glance “gender” appears to refer to biological sex, however, unlike “gender identity” is left undefined, allowing it to be interpreted more widely). The problem is, that with Tasmania’s laws which allow people to change their legal sex purely on the basis of self-identification, sex has become an amorphous concept under law, now ascertainable only by common sense.

In a press release on Monday, LGB Tasmania condemned the Tribunal’s decision. It called on the state parliament to review and amend legislation, like the Anti-Discrimination Act, that removes women’s sex-based rights, and prioritises the rights of trans-identifying males over the rights of women when those rights collide.“Lesbians have been conducting women only Lesbian events across Australia for more than 50 years without restriction,” said LGB Tasmania spokesperson Silver Moon.

“The decision of the Tribunal is a direct attack on Lesbian rights, Lesbian culture and Lesbian community.

“Similarly it is an attack on organisations that provide single sex services like health care, sports and education along with risks to single sex religious and cultural practices throughout Tasmania.”

The introduction of “gender” and “gender identity” as protected attributes under anti-discrimination law at both the state and federal level, particularly when combined with self-identification laws, has meant that prior protections (both explicit and implicit) on the basis of biological sex have been abolished or rendered meaningless. The upshot is that female-only spaces, services and sports – which were once uncontroversial – generally cannot refuse admission to males claiming a female “gender” or “gender identity” without falling foul of anti-discrimination law.

As lobby group Women Speak Tasmania explains, by corroding biological sex-based protections, it is women and girls who predominantly lose out, as biological sex is the basis of most discrimination against females (for example, when they are pregnant or while raising children), as well as the reason for their vulnerability to physical and sexual violence from males. Women predominantly suffer discrimination because they have female bodies, not because they identify as female.

Like LGB Tasmania, we too call on the Tasmanian state parliament, as well as the federal parliament, to restore the sex-based rights and protections of women and girls in law.

**Jessica is now applying to have the decision judicially reviewed in the Australian Federal Court. Please consider supporting this important cause**

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