The ordinary meaning of words is as old as the language itself, and the words “male” and “female” have carried stable, biologically rooted meanings in English for more than 600 years. Most Australians understand what those words mean and the Oxford Dictionary defines sex as “either of the main divisions (male and female) into which living things are placed on the basis of their reproductive functions”. By treating a legislative novelty a dozen years old as the measure of ordinary meaning, the commissioner has abandoned the highway of plain speech for a legal cul-de-sac of confusion.
When Labor’s Susan Ryan introduced the Sex Discrimination Bill in 1983, she made her purpose clear. The law was to give effect to the United Nations convention on the elimination of discrimination against women. That convention, and the Australian law that followed, were built on the recognition that women had been held back precisely because of things proper to their sex. Pregnancy and the possibility of pregnancy were named because they had long been used as reasons to sack women, deny them jobs, or block their advancement. Ryan told the Senate the bill would outlaw discrimination on the grounds of sex, marital status, or pregnancy. These protections were grounded in biology and were designed to secure equality for women as a group.
That clarity did not last. In 2013, the act was amended and the definitions of man and woman were quietly repealed to accommodate protections for gender identity. Where the law once spelled out that a man was a member of the male sex and a woman was a member of the female sex, the federal parliament now said those words should take their “ordinary meaning”. It was presented as a technical change, but it was nothing of the sort. It was a Trojan horse wheeled inside the walls of the law. The effect has been to light a fire that now burns the city of meaning to the ground. What was once fixed was unmoored.
This has opened a door for the commissioner to argue that even the act’s pregnancy provisions – protections written precisely for biological women because of their capacity to conceive – should be read as extending to trans women.
The terrifying thing in this is it takes a highly intelligent person to make an argument so reckless. Only an academic or a lawyer could do it. Only a court, a campus, or an inner-city dinner party could entertain the argument that the ordinary meaning of male and female is meaningless. It would not pass the pub test anywhere west of Chippendale.
The Sex Discrimination Act itself recognises that women sometimes need protections that are single-sex. Section 32 permits single-sex services where the nature of the service requires it, and section 42 expressly allows exclusion in competitive sporting activities where strength, stamina or physique are relevant. So, the act was written with the clear understanding that biology matters, and that there are circumstances in which women need spaces and protections of their own.
In dissolving the boundary between sex and gender, the commissioner is engaging in institutional betrayal. The office created to defend women now seeks to erase them. If the word “female” can be colonised by biological males, the law cannot protect women as women and every protection won over generations collapses. Even the experience of pregnancy and childbirth will be claimed by those who can never endure it. In the end, women lose not only their rights but their recognition. They will be pushed into a legal limbo, where their very existence as a class is denied.
The commissioner seems determined to etch a dangerous precedent into law. Its staff may feel on the right side of history, but they are morally adrift. They are defending a lie – and no law or court can make it true.
Source: The office created to defend women now seeks to erase them
Very well written and argued. Thankyou for making it clear. This is so fundamental to women’s existence.
These are extracts from an opinion piece by Chris Uhlmann from The Australian newspaper. I am sorry this was not originally clear from the heading when first posted. This is a news digest from articles published elsewhere and not generally original content of FLC.