At the same time Harry Potter author, JK Rowling, is challenging highly contentious gender ideology in Scotland’s anti-hate speech law, gender ideology law is also being tested in Australia’s Federal Court.

Ambiguously, gender ideology says that either fluid gender identity replaces, or is separate from, a person’s sex. This contested theory stands juxtaposed to the biological worldview that sex is immutable and unchangeable. The resultant conflicts are being played out across the world.

On April 1, Scotland made it illegal to ‘stir up hatred’ in speaking about a person’s gender identity, (or other characteristics). In the following week, many complaints were lodged with police, some against Rowling.

As the law came into force, Rowling stated on Twitter:

‘It is impossible to accurately describe or tackle the reality of violence and sexual violence committed against women and girls, or address the current assault on women’s and girls’ rights, unless we are allowed to call a man a man.’

And as she wrote in 2020:

‘If sex isn’t real, there’s no same-sex attraction. If sex isn’t real, the lived reality of women globally is erased. I know and love trans people, but erasing the concept of sex removes the ability of many to meaningfully discuss their lives. It isn’t hate to speak the truth.’

In Australia, claims that gender and/or sex are fluid are being comprehensively written into federal, state, and territory anti-discrimination, birth certificate, marriage, anti-conversion therapy, and anti-hate speech laws. Perhaps the most significant was the 2013 writing of gender identity into the federal Sex Discrimination Act 1984 (SDA), which was originally designed to eliminate all forms of discrimination against women.

Currently, the Federal Court of Australia is considering the case of Roxanne Tickle, a transgender male-to-female. Tickle has made a discrimination complaint, based on Tickle’s gender identity as female as recognised by the SDA, claiming Sall Grover refused Tickle access to Grover’s female-only web app Giggle for women and girls.

Notably, the Sex Discrimination Commissioner has joined the case. Their submission to the court claims ‘that the word “sex” is not a biological concept referring to whether a person at birth had male or female physical traits. Nor is it a binary concept, limited to the “male” or “female” sex…’

The source of this ‘ordinary meaning’ of ‘sex’ is not from biology, but from federal, state, and territory laws defining and protecting a person’s gender identity. This mechanism for redefining sex is reminiscent of Humpty Dumpty’s explanation to Alice in Wonderland: ‘When I use a word, it means just what I choose it to mean.’

The 2013 amended SDA said that ‘gender identity’ means ‘the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth’.

This ambiguous description of gender identity creates serious legal problems.

It is a circular argument: ‘gender identity’ means ‘gender-related identity’, without any definition of ‘gender’ or ‘sex’.

Claiming that sex is ‘designated’ at birth, just as parents choose and assign a newborn’s name, makes identification of birth sex as a subjective choice, and therefore fluid, rather than an objective, observable, immutable, biological reality. This puts the government’s ‘thumb on the scale’ of a major contested issue in modern philosophy and politics and creates a variety of interpretive ambiguities.

For example, does ‘gender-related appearance’ mean a woman who wears a suit be considered as having the gender identity of a man? Does ‘gender-related mannerisms’ mean that a boy who throws a ball underarm rather than overarm has the gender identity of a girl?

If ‘gender-related characteristics’ refer to typical socio-cultural characteristics attributed to the person’s biological sex, then don’t ‘gender-related characteristics’ really mean characteristics based on biological sex?

While ‘sex’ and ‘gender’ are not defined in federal law, they do have commonplace meanings from biology in the community. Biology defines sex as ‘physical attributes such as chromosomes, hormone prevalence, and external and internal anatomy’ that distinguish biological males from biological females by their reproductive function, regardless of whether reproductive functions are impaired or not being used for reproduction.

‘Gender’ commonly refers to either of the two sexes (male and female) with reference to social and cultural differences rather than biological differences. At the same time, these social and cultural differences are characteristics that point back to inherent biological sex differences.

The crux of the legal problem is this: while the Sex Discrimination Commissioner may say that the word ‘sex’ is neither ‘a biological … [n]or … binary concept’, the SDA definition of ‘gender identity’ functionally relies on a person being biologically male or female in the first place. While it says ‘gender identity’ can be determined ‘with or without regard to the person’s … sex at birth’, in reality, all descriptors for gender identity without regard to a person’s sex do, in fact, depend on binary, biological sex.

A person can only transition to the opposite sex if there are first two sexes.

‘Non-binary’ (pangender, genderqueer, etc.) is defined against binary, two opposites, male and female. ‘Non-binary’ is predicated on there first being ‘binary’.

Those who say they are escaping sex or gender categories, as ‘genderless’ or of ‘unspecified sex’, depend on binary biological sex, or else there would be no sex/gender from which to escape.

The concept of being at a point on a spectrum between 100 per cent male to 100 per cent female is dependent on the biological reality of male and female at opposite ends of the spectrum.

Nor are rare cases of intersex evidence of a third sex, as intersex is an anomaly, a disorder or difference of sexual development. As feminist philosopher Rebecca Reilly-Cooper says, ‘The fact that some humans are intersex in no way diminishes the truth of sexual dimorphism [sex being two distinct forms], any more than the fact that some humans are born missing lower limbs diminishes the truth of the statement that humans are bipedal [standing upright on two legs].’

These ambiguities and mistruths lead to a conundrum.

The SDA says that biological sex is the ground for adverse discrimination against women, not female social characteristics. However, the 2013 amended SDA also says that gender identity is defined by social characteristics, which create wide grounds for conflict with, and adverse discrimination against, natal women when biological males adopt female social characteristics to identify as female.

Furthermore, because the SDA embodies the notion that gender identify is fluid and one can have an unlimited number of identities according to how a person feels at any given point in time, this ultimately leads to radical subjectivity and uncertainty, which makes for bad law.

So, will the Federal Court align with JK Rowling’s biological view on the reality of sex and allow Sall Grover to exercise her sex-based right to run an app only for natal females, or will Grover to be convicted of discrimination under a law that is radically subjective, uncertain, ambiguous, and now conflicted in its fundamental objectives?

Patrick J Byrne is former national president of the National Civic Council and author of the book, Transgender: One shade of grey – The legal consequences for man & woman, schools, sport, politics, democracy.

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