On 23 Aug 2024 in the Federal Court of Australia, a judge ruled in favour of trans woman Roxanne Tickle in her anti-discrimination case against social media app ‘Giggle for girls’. Most of the proceedings thus far, including a hearing in April 2024, have concentrated on what constitutes the legal definition of woman. This has centred on whether Tickle can identify into the category of woman, and therefore whether sex can be changed. Federal Court Justice Robert Bromwich found Tickle was indirectly discriminated against on the basis of gender identity because app owner and CEO Sall Grover removed Tickle from the women-only app.
The landmark case has answered the question: ‘What is a woman?’ And come down categorically on the side of gender-identity, paradoxically discriminating against natal women in the process. Let me explain. The app was set up as a single-sex space, which is by definition discriminatory. Thus, discrimination in favour of natal females cancels out discrimination against trans-identifying males (aka ‘transwomen’) and vice versa. This is why it is a landmark case. What is really at stake here is the definition of woman — specifically, will ‘woman’ be defined in the old way as an ‘adult human female’ or in the new way, as encompassing natal males who identify as women? We need to back up here and understand what happened in Australian law.
The Sex Discrimination Act, 1984 was amended in 2013 to include protections on the basis of sexual orientation, gender identity and intersex status. This created an implicit ontological conflict between competing claims to the category of woman. The conflict concerned the question: what is a woman? Was a woman defined by biological sex or by gender identity, which are overlapping but not identical categories. In a Venn diagram, for example, sex category and gender identity overlap for the vast majority of men and women (boys and girls) however, for trans people this is not the case; they identify as the opposite sex. Their sex category and gender identity are discordant, hence the term ‘gender dysphoria’.
For all of human history and cross-culturally, a woman was an adult human female, a person in the biological sex category of female. This was an undisputed fact of nature institutionalised in law and social custom. Outliers and exceptions – for example, hermaphrodites or transexuals – did not alter this fact a jot. However, the 2013 amendment to the SDA generated an implicit conflict in adding ‘gender identity’ to its list of protections under the Sex Discrimination Act, 1984. This meant that a competing claim was going to eventually emerge. It was baked into the law. Simply waiting to rise up from the body politic.
By protecting both sex and gender identity, an inevitable conflict was built into Australian law because both cannot be protected at once for the same category; they are in fact mutually exclusive.1 One definition refers to natal females – those with XX chromosomes, female genitalia and hormones – and sets a definitional and legal limit around biological sex. The other newer definition includes those who identify as women, and given the human species is dimorphic, these individuals necessarily belong to the sex-category male (or they once did, depending on your perspective). What the 2013 SDA amendment did was create a conflict in law by protecting both categories of woman. This conflict was ‘resolved’ in the Federal Court today in favour of trans-women.
While the court found Roxanne Tickle did not face direct unlawful treatment on the basis of gender identity, her exclusion resulted in ‘indirect discrimination’. However, the real bombshell, the one that ends women’s claim to their own sex-category (and so much else besides) was this: Justice Robert Bromwich concluded that, “in its contemporary ordinary meaning, sex is changeable”. Moreover,
“The acceptance that Ms Tickle is correctly described as a woman, reinforcing her gender-identity status for the purposes of this proceeding, and therefore for the purposes of bringing her present claim of gender identity discrimination, is legally unimpeachable.”
As I have said before,
Assuming this debate is like other debates between say, liberals and conservatives, or between opposing philosophical paradigms … is sadly mistaken. This debate, like so many in the contemporary culture wars, is on an entirely new epistemological terrain: what is at stake here is nothing short of reality itself!
The ‘priors’ … of either side are no longer shared; we need rather to understand this issue… as a disagreement not on a shared understanding of reality but rather a disagreement about the nature of reality itself.
While one definition of woman relies on the political notion of sex-class founded in the materiality of the sexed body; the other definition of ‘sex’ (but really, of gender) is that it is changeable. If sex can change, where has the ‘sex’ in sex change gone? In truth it has been culturally eviscerated, elasticised beyond all recognition, and ‘disappeared’ into a superordinate category of gender. Again, to quote from my earlier article,
… The newer definition replaces sex with gender and defines the category of woman (or man) as one that can be opted into [or out of]…Thus, we haven’t even got out of the paradigmatic gate before we are fighting over the nature of reality itself. The category of sex is the site of the struggle. If we cannot agree that sex exists or is materially, politically and linguistically distinct from gender, then we are not arguing about the same thing. To invoke Smith’s famous aphorism regarding the two women arguing from their respective balconies: they were arguing from different premises!
To protect gender-identity as the superordinate category of woman means that transwomen now legally have the right to call themselves women, but natal women have lost the right to call those same individuals “men” or “natal males”. This prevents legitimate exclusions hitherto built into the law to protect women’s sex-based rights and single-sex spaces (sports, awards, toilets, change rooms, prisons, apps). Gender identity has, in effect, trumped sex. This outcome therefore has significant implications for Australian society and serves as a precedent across the West. We are well on our way to a transhuman future.
- More specifically, the SDA, 2013 amendment allowed the older definition of woman to persist which has a limit defined by natal (biological) sex. The new definition encompasses natal females but also includes trans-identifying males – i.e., ‘transwomen’ ↩︎
