A lawyer for a Victorian lesbian group that wants to exclude transgender and bisexual women from its public events has compared its request to a Melbourne gay bar that was granted the right to refuse heterosexual people.
But a lawyer for the Australian Human Rights Commission said the Peel hotel’s exemption had been granted under Victorian state law to help gay men achieve equality, unlike the Lesbian Action Group’s application, which discriminates against transgender women.
The Lesbian Action Group (LAG) has asked the administrative appeals tribunal to overturn the human rights commission’s October decision preventing it from excluding transgender and bisexual women from its public events.
The commission argued that granting the LAG an exemption from usual gender discrimination laws could contribute to heightened health risks among transgender lesbians. It also looked to last month’s landmark Tickle v Giggle federal court decision, which found transgender women were women and should have access to women’s services such as LAG events.
The LAG’s counsel, Leigh Howard, told Fenwick the Tickle v Giggle decision was “binding” but “plainly wrong”.
Howard cited Melbourne’s Peel hotel, which was granted an exemption under Victorian state law giving the venue the right to refuse entrance to heterosexuals and lesbians and, after changes to the exemption, to anyone who upset the “character” of the venue.
“That is a really good example of how these exemptions are supposed to work,” he said. “May we please have one as well?”
Under cross-examination, the LAG’s Carole Ann said it was a “statement of fact” that the group does “not believe humans can change sex”.
She said young lesbian feminists told her there was nowhere for them to go.
“They are so isolated, they have no one else to talk to and they don’t know where to find the support,” she said. “There’s nothing anti-trans about our application at all.”
Sheila Jeffreys, a professor of political science at the University of Melbourne and lesbian feminist scholar, provided expert evidence to the tribunal.
“The fact is, there is a clash of rights here,” she said, speaking from the UK. “When men claim to be women, a clash of rights exists because women have existing human rights as women.”
Jeffreys said parts of the 2013 amendments to the SDA – which make it unlawful to discriminate against a person on the basis of sexual orientation, gender identity or intersex status – “don’t make any sense”. She said she feared they “make the law an ass”.
A decision is expected by December, after which it is possible the case may advance to the federal court.
