Background: In March 2024, I made an application to submit an amicus brief in the case of Roxanne Tickle versus Giggle for Girls Pty Ltd & Anor (NSD1148/22). I was not granted leave to intervene by the Federal Court of Australia on grounds that the submission was made late. I was asked instead to provide input to the Australian Human Rights Commission, which is intervening in this case, on the meaning of the word “woman” in the Convention on the Elimination of All Forms of Discrimination against Women and Girls (CEDAW) by the 18th of March, which I havedone. I conveyed my expectation that given my application, the Australian Human Rights Commissioner would bring my submission to the attention of the Australian Federal Court and other parties. At the time of sending my submission to the Commissioner, I had copied the respondents’ solicitor on the communication, acknowledging their assistance to date in navigating the Australian federal legal system up to that point.. The below position maintains the core message of the input sent to the Commissioner, while expanding some of the supporting arguments.
. . .
States have an obligation to guarantee non-discrimination in the enjoyment of human rights, including based on sex (i.e. biological sex). Articles 2 and 3 of the ICCPR mandates States Parties to take all steps necessary, including the prohibition of discrimination on the ground of sex, putting an end to discriminatory actions, both in the public and the private sector which impair the equal enjoyment of rights by women.
Based on the above analysis of relevant international law, it is clear that sex and gender are two different concepts. However, international law does not permit any derogation to the prohibition of discrimination against women based on sex. Where tension may arise between the right to non-discrimination based on sex and non-discrimination based on gender or gender identity, international human rights law does not endorse an interpretation that allows either for derogations from the obligation to ensure non-discrimination based on sex or the subordination of this obligation not to discriminate based on sex to other rights.
Source: position-paper-on-definition-of-women-in-CEDAW-04.04.2024-final79.pdf
Unfortunately it appears that the Australian Human Rights Commission no longer adheres to the notion that CEDAW has meaning or that it governs the Sex Discrimination Act 1984 (as a Schedule to the Act), and nor (apparently) does the Australian government – at least in its 2010 configuration. The judge in Tickle v Giggle, having advised the Special Rapporteur to submit her expert witness statement to the Australian Human Rights Commission and effectively the Australian Human Rights Commission to reference that expert witness statement in its submissions, surprisingly appears to have overlooked his original view that the Special Rapporteur’s expert witness statement had some (sic) relevance. He took as his position that of the Australian Human Rights Commission which was not consistent with the Special Rapporteur’s expert witness statement. I do not suggest here, contrary as it appears to the position taken by the judge, that a judge should put forward an expert witness statement (or view of a body in that notional category namely the Australian Human Rights Commission) as her/his own or simply accede to it without critique or analysis so as to come to her/his own view, and particularly in light of the Special Rapporteur’s expert witness statement which has a position different from the Commission’s. However it would appear to me that (a) the Australian Human Rights Commission had a duty and responsibility consistent with the judge’s direction to put forward the Special Rapporteur’s expert witness statement in some way; and (b) the judge to refer to it in his judgment and at least to engage directly with it.
This case, and the way it was run and its outcome, is troubling indeed. It raises fundamental questions as to legal process and jurisprudence going beyond the facts of the case itself and transcending the pleadings and the way the case was run.