Letter to Attorney General Mark Dreyfuss

We wrote to the Attorney General, Mark Dreyfuss, about the failings of the amendments to the Sex Discrimination Act (2013). We will be following this up with his office.

The Hon Mark Dreyfus KC, MP, Attorney-General

PO Box 6022
Parliament House
Canberra ACT 2600
02 6277 7300

Dear Attorney-General,

We write to you as Australia’s largest Lesbian, Gay and Bisexual advocacy organisation, LGB Alliance Australia. https://www.lgballiance.org.au/

We have major concerns regarding the rights of LGB people in Australia particularly in light of changes made to the Sex Discrimination Act in 2013 (SDA henceforth) under the Gillard Labor Government.

Currently in Australia, there are implications for same-sex attracted people based on the 2013 amendments to the SDA in that lesbians and gay men can no longer designate a public event or gathering to be an exclusively single-sex event, with sex defined in the traditional way. i.e. men are adult human males, women are adult human females.

While we agree that ‘diversity and inclusion’ laws have their place, these laws are actively discriminating against same-sex attracted people in that we are forced to congregate in mixed-sex spaces and we are forced to accept opposite-sexed peoples in our dating pools. Gay men, lesbians and bisexual people have a proud history of single-sex events and because we are exclusively attracted to people of the same sex, it’s important for us to have single-sex events.

We want gay men and lesbians and bisexual people to have a permanent exemption from the Australian Human Rights Commission in order to be able to have single-sex events. We want this exemption because of the confusion and insecurity surrounding the issue of single-sex space, and because that exemption validating our legal right to single-sex space would help in safeguarding door admission and discouraging stressful and expensive complaints.

To date, every lesbian group who has applied for an exemption both federally through the AHRC and through State Human Rights Commission’s, have been refused.
We assume that these have been refused because the AHRC and State Human Rights Commissions are interpreting the SDA in a particular way. That being that sex and gender identity are interchangeable and not two distinct and separate things.
In your explanatory memoranda of the SDA it is clear that sex is different from gender identity and yet the AHRC is conflating the two and this may not be what the SDA amendments were intended to do. This is something that needs to be rectified by Parliament because there is no way to follow the Act without running up against these conflicts.

We’ve identified issues in the SDA which are affecting the LGB as follows:

1. The term sex is not defined in the SDA. How can you protect something that isn’t defined? How can same-sex attracted people be protected when sex is not defined?

2.The SDA defines ‘gender identity’ as “the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person”. This is a nonsensical circular definition. What is the SDA protecting with this definition? Is it sex stereotypes?

3. The words ‘man’ and woman’ are no longer defined in the SDA. The Amending Act repealed the definitions of ‘man’ and ‘woman’ that had previously existed. Prior to the Amending Act, ‘man’ and ‘woman’ were defined in s4(1) of the SDA as follows:
“Man means a member of the male sex irrespective of age.
Woman means a member of the female sex irrespective of age. “
How can men and women be protected in legislation that no longer defines what we are?

Real World Application: how is this affecting the LGB community?

1.      If ‘sex’ in the SDA is to be defined according to gender identity, as the AHRC argues, lesbians and gay men are only protected by the Act if they claim to be ‘same-gender’ attracted not same-sex attracted. This completely erases our rights as same-sex attracted people. Gay men, lesbians and bisexual people are attracted to people of the same sex NOT gender.

2.      That the AHRC argues the ‘special measures’ provision CANNOT be used to favour women (or men) if that would discriminate against a person on the basis of their gender identity. This renders special measures inoperable for sex-based measures, because every sex-based measure based on biological sex WILL NECESSARILY AND ALWAYS discriminate against someone of the opposite sex based on their gender identity. Therefore, special measures on the basis of biological sex no longer exist under the AHRC’s reading.

3.      When lesbians and gay men object to this denial of their experience of sexual attraction, we are labelled ‘sexual racists’ and accused of practicing ‘sexual apartheid’ and of being bigots, when in fact we are just maintaining safe boundaries.

4.      Lesbians and gay men are now expected to include members of the opposite sex in their dating pool lest they be accused of ‘transphobia’ and ‘genital fetishism’.

This is deeply homophobic, a denial of our rights to be same-sex attracted and a denial of our history.

 5.      Lesbians have been denied the rights of association to hold lesbian and women-only events. Lesbians have been forced back into the closet and are seeing their hard-won rights taken away. It’s ironic that lesbians can legally get married but cannot legally meet at a club or event that is women-only and neither can they meet in any online spaces that are single-sex because these no longer exist.

6.      If our sex-based reality is not adequately defined, how can it be protected? Instead, we have an Act that protects the circular definition of “gender” and stereotypes and not that which is important to 99% of the Australian population which is sex-based rights. This is particularly important for women and lesbians who are both oppressed classes. It is particularly important for women who are being killed, raped and harassed because of their sex. How can women be protected by the SDA if “woman” and “female” are not defined? Or, even worse, are defined to include biological males, the ones who are overwhelmingly doing the raping and killing of them?

Australia is signed up to CEDAW which acknowledges that extensive discrimination against women continues to exist and emphasizes that such discrimination "violates the principles of equality of rights and respect for human dignity". As defined in article 1, discrimination is understood as "any distinction, exclusion or restriction made on the basis of sex.” And yet the SDA no longer recognises what a woman is.

There are real world implications for same-sex attracted people because of these changes to the SDA and we would like to draw your attention to how these amendments are making life much more difficult for LGB people in that our right to assembly and association is denied and we are being forced to accept opposite-sexed people in our dating pools.

We are writing to request a meeting with you to discuss these important issues and are available to meet via Zoom at your convenience.

Regards

Nicole Mowbray

LGB Alliance Australia