Law ‘never intended boys to sleep in girls’ dormitories’, court told | The Australian

Parliament never intended that boys would sleep in girls’ dorms or that men would go to lesbian parties when it introduced new sex discrimination laws, the Federal Court has been told.

The consequences of saying sex is non-binary and changeable “cannot be objectively sustained”, counsel for the Lesbian Action Group, Leigh Howard, told a Full Bench of the Federal Court on Wednesday.

The court heard final submissions in the appeal by Giggle app founder Sall Grover against a decision by judge Robert Bromwich that she indirectly discriminated against transgender woman Roxanne Tickle by rejecting her from the female-only Giggle networking app because she appeared to be a man.

The LAG has been granted intervener status in the case because of its special interest in creating female-only spaces.

It says the conclusion that a biological man who identifies as a woman is a “woman” under the Sex Discrimination Act has serious unintended consequences, including that charitable accommodation providers would have to admit biological men into domestic violence shelters and rape crisis centres and police body searches of women could be carried out by biological men.

“This is an act that touches upon all aspects of society … it needs to be interpreted by the nurse at St Vincent’s Hospital, the market stall operator at Paddy’s Markets, the Big Four bank on Market Street, and the institutional department in Canberra – it has to work for everyone,” Mr Howard said.

“It has to be read sensibly and logically, produce coherent results that are understandable and capable of application by everyone and also all stakeholders of differing sophistication.”

Mr Howard also raised what he referred to as “the female elephant in the room” – the For Women Scotland case in which the UK Supreme Court ruled in April this year that “the terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex”. While acknowledging the different jurisdiction, Mr Howard suggested that, after analysing the balance of the act in that case, “you cannot in their situation lead to the conclusion that the legislature intended there to be a concept of anything but a biological woman under their legislation.”

Counsel for Equality Australia Ruth Higgins SC told the court sex was not binary or biologically fixed at birth but rather could be “liberally construed” by reference to social recognition and personal identification. 

Counsel for the Sex Discrimination Commissioner, Celia Winnett, also argued that sex is non-binary and that the word “woman” in the Sex Discrimination Act included trans women.

Ms Grover’s legal team has argued that the word has its ordinary meaning and has pointed to the Macquarie Dictionary definition of a woman as a female human being, which in the normal case produce ova and can be fertilised by male spermatozoa.

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