Lee is a woman in her late 30s. Three years ago, she was diagnosed with multiple sclerosis (MS). She recently wrote to the Australian Sex Discrimination Commissioner, asking whether she could—under the permanent exemptions to the Sex Discrimination Act—advertise for a biologically female personal disability carer.
In her reply to Lee, Sex Discrimination Commissioner Anna Cody noted that, while there are permanent exemptions for sex in relation to “employment to perform domestic duties at a person’s residence” including where needed to preserve decency or privacy, these permanent exemptions do not extend to gender identity. (Note that this is not a legal determination: ultimately, the relationship between sex and gender identity in sex discrimination law will have to be tested in court).
The Sex Discrimination Act is federal law designed to protect against sex discrimination. It has built-in exemptions intended to make sure that people can’t invoke “sex discrimination” to prevent others from accessing sex-selective services that advance substantive equality. In other words, you can’t refuse to hire a woman accountant because you think women are bad at maths; but you can refuse to deliver women’s health services to men.
That the permanent exemption relates to sex but not to gender identity means that Lee can advertise a position for a personal disability carer who is legally female, but that category would include a biological male who has changed the sex on his birth certificate, or a biological male whose gender identity is “female” (or who sees himself as a “woman” or “transwoman”).