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A long-running legal battle over whether a lesbian group can exclude transgender women from its events has made its way to the Federal Court.
The Lesbian Action Group (LAG) is appealing a decision by the Human Rights Commission, which ruled it could not legally exclude transgender women.
The case, described as a “clash of rights”, will determine whether the rights of cisgender lesbians come at the expense of trans lesbians.
The Victorian-based LAG says it subscribes to the philosophy of lesbian feminism and does not believe humans can change sex.
It wishes to hold public political and social events exclusively for “lesbian-born females” that would exclude all males irrespective of whether they identify as women.
The LAG was denied a five-year exemption in 2023, when it applied to the Human Rights Commission.
It then lodged an appeal to the Administrative Review Tribunal, which found “overt acts of discrimination” should not be allowed and the exemption could have a detrimental impact on trans women.
The group has now appealed to the Federal Court after running a crowdfunding campaign that raised close to $40,000, with donations made by people from around the world.
Today the LAG’s lawyers told the court the group had the freedom to associate in a way that catered to their own needs.
Counsel Leigh Howard said there was “no human right to be invited to the party” and that the exemption should be granted on the same basis that female-only gyms were given exemptions.
Co-counsel Megan Blake said the Sex Discrimination Act should be interpreted in a way that gave biological women priority over trans women.
She said the Human Rights Commission had no issue with heterosexual and homosexual men being excluded from the group and that trans women should likewise be considered biological men.
“[Lesbians] are united by one or more common features … mainly biology,” Dr Blake said.
The commission’s counsel, Celia Winnett, said the object of the act was to protect many people “on an equal footing”.
“There’s an objective of eliminating discrimination on the basis of gender identity just as much as there is an objective of eliminating sex discrimination,” she said.
Even without the legal exemption, the LAG can still exclude trans women from private gatherings, but LAG spokesperson Nicole Mowbray said public events were necessary in order to attract new members.
“Young and emerging lesbians cannot find their people because we’ve been underground in order to keep [biological] males out of our dating pool and our events,” she said outside court.
“There’s plenty of trans-only events and that’s fine. We would just like to be afforded the same right.”
Australian National University Emerita Professor of Law Margaret Thornton said exemptions were uncommon and generally quite narrow if granted.