The slowly simmering cultural and legal conflicts between the rights of natal females and males who identify as female has finally become a serious issue in federal politics.

There have been major public controversies over the so-called ‘Safe Schools’ transgender sex-education program, numerous calls for federal and state inquiries into the medical transitioning of children, and the British Cass Report that led to the shutting of the Tavistock children’s clinic. Despite these developments, Australia’s federal and state governments have continued to roll out an extraordinary matrix of laws replacing a person’s sex with the term ‘gender identity’.

These laws have undermined the sex-based rights of girls and women, undermined parental rights, made it illegal to counsel a gender-confused person to identify with their sex at birth, and had a silencing effect on public debate over the nature of sex, marriage and family.

New political climate

Last month in the Federal Court, Justice Robert Bromwich ruled in the Giggle v Tickle case (see News Weekly, September 7, 2024). He said that, regardless of biology, ‘sex is not confined to being a biological concept referring to whether a person at birth had male or female physical traits’ but is changeable, and takes its new fluid meaning from federal, state, and territory laws.

Writing on the case in The Australian, Angela Shanahan cited our book, Transgender: One Shade of Grey, which, she says, points out the implications of recognising ‘gender identity’ over ‘sex’ in the widening matrix of gender identity laws; they have, ‘…dissolved the meaning of sex as being biological and binary. In the process, it means that males who identify as female can claim access to women’s sports, toilets, showers, change rooms, shelters, and lesbian organisations.’

What is more, dissolving the meaning of sex also ‘dissolves the meaning of homosexual, lesbian, bisexual, and heterosexual’. Indeed, laws have made the meaning of these terms ambiguous, with implications for the 2026 Census.

In the wake of Tickle v Giggle case, on September 12, One Nation’s Pauline Hanson moved a bill in the Senate to reinstate the definitions of ‘man’ and ‘woman’ in the federal Sex Discrimination Act (SDA). These definitions were repealed and replaced with ‘gender identity’ in 2013 by then (and current) Federal Attorney-General Mark Dreyfus. Hanson’s bill also sought to remove gender identity from the SDA.

Senator Hanson’s bill was defeated. While 32 voted ‘No’, 27 senators voted ‘Yes’. With this level of support, the issue is not going away. It can no longer be swept under the rug as the Greens, some independents, and Labor sought to do when they used their numbers to refuse the customary first reading of Hanson’s bill.

Between these two events, the British Office for National Statistics (ONS) had an embarrassing setback when it was forced to announce that its 2021 Census estimates of the number of transgender people in England and Wales had to be stripped of their accredited status. The ONS found that too many people misunderstood the 2021 Census question.

This should have been a warning to Prime Minister Anthony Albanese over controversial plans for the next Australian Census.

As the above events were unfolding, Albanese first announced that he was reneging on Labor’s election pledge to include questions about sexuality and gender in Australia’s 2026 Census, then backflipped under pressure, saying there would be one question ‘on sexuality’. Treasurer Jim Chalmers then announced that a new Census topic would canvass both sexual orientation and gender identity.

Just as there was confusion over the sex/gender question in the last British Census, there was equal confusion in Australia’s 2021 Census.

The following describes what has become of a mess of the Albanese government’s own making.

About the Census

The Census is a major activity of the Australian Bureau of Statistics and costs around $600 million. Over the years, the number of questions asked has grown like topsy.

Whereas the US Census is every ten years with only nine questions, the Australian Census is conducted every five years. The last, in 2021, had 65 comprehensive questions over 26 pages.

It is said that new questions on sexuality are needed to provide a profile and deliver health services based on the needs of transgender and LGBIQ people. But will the proposed question deliver anything useful?

2021 Census confusion over ‘non-binary’

The question on sex on the 2021 Census had three options – ‘Male, Female, Non-binary sex’ (non-binary means not male or female).

Reporting on the outcome, the ABS said the results from the non-binary sex category provided no usable data because ‘the concept of non-binary sex was not consistently understood and was perceived in different ways by different people’.

Of the 43,220 (0.17 per cent) who ticked the non-binary sex option:

• 10 per cent selected ‘Non-binary sex’, but at the same time said they were ‘Female’.
• 7 per cent selected ‘Non-binary sex’, but at the same time said they were ‘Male’.
• 83 per cent selected only non-binary sex.

Also, of the one-third of respondents who provided a written response in the additional comments box, about 93 per cent either wrote in their gender identity (for example, agender, gender fluid, transwoman) or restated that they were ‘non-binary’. The remainder responded with a sexual orientation (for example, gay, lesbian) or an intersex term, none of which are gender identities.

Notably, this ABS analysis was externally peer-reviewed by representatives of four leading LGBTIQ support and research organisations.

2026 sex/gender-identity question

ABC News has sighted the draft 2026 Census questions. They are analysed below.

What is the person’s gender?

Man; Boy; Woman; Girl; non-binary; uses another term; prefer not to answer (Mark one box.)

(Gender refers to current gender, which may be different to sex recorded at birth and may be different to gender recorded on legal documents.)

Q 1: Given that these options are little different to the 2021 options (Male, Female, Non-binary sex), and that the ABS found such a confused understanding of ‘Non-binary sex’ that the responses could not provide useful data, what is the point of asking virtually the same question again?

Q 2: How does the term ‘Non-binary sex’ identify transgender people when many male-to-females say they strongly identify as female, and when many female-to-males say they strongly identify as male?

Rather than identifying transgender people, the question leaves them, and their special health needs, invisible. At the same time, the question fails to identify their birth sex, which is important for planning for the provision of regular health needs, many of which are specific to a person’s biological sex.

2026 sexual-orientation question

How does the person describe their sexual orientation?

Straight; gay or lesbian; bisexual; uses another term (specify); don’t know; prefer not to answer. (A question for people aged 15 and over.)

This question raises a number of issues.

First, the ABS says that sexual orientation is ‘fluid’, ‘a subjective view of oneself and can change over the course of a person’s lifetime and in different contexts’. Hence, ‘any data captured using this question will only represent a point in time’.

Second, the sex/gender identity question, allowing for transgender self-identification of other than natal sex at birth, points to further confusions with the meaning of ‘sexual’ orientation.

Q 3.1: Are attractions involving transgender persons now ‘gender orientations’?

Consider these examples.

Q 3.2: Would a female-to-male transgender person in a relationship with a female who identifies as a female (cisfemale) be regarded as being in a heterosexual or a lesbian relationship?

Q 3.3: Would two male-to-female transgender persons in a relationship be considered to be in a lesbian or gay relationship?

Q 3.4: Is a natal male, who identifies as a male (cismale), and who is attracted to other natal males and to transgender male-to-females to be considered gay or bisexual?

Q 3.5: Is a natal male in a relationship with a female-to-male transgender to be considered heterosexual or gay?

These are not academic questions. As transgenders change their sex to identify as opposite to their birth sex, this changes their sexual/gender orientation.

Q 4: As many people regard their sexuality as a private matter – and given the definitional problems and confusions about what is sexual orientation, and with sexual orientation being an optional census question – how is the sexual-orientation question going to provide useful, high-quality data to the ABS?

Q 5: If these questions cannot be answered satisfactorily – that is, if these census questions cannot provide high-quality, useful data – then, what is the point of having them on the 2026 Census?

Data on natal sex is important for many reasons. Hence:

Q 6: If the question on sex is determined by ‘self-identification’ only, then how does the ABS provide important, high-quality, population-wide data on males and females by age for planning health services specific to natal sex?

As the ABS has explained, it does not ignore LGBTIQ groups. It conducts other detailed surveys which specifically focus on their needs. Sex, gender and intersex questions are contained in the National Health Survey, the National Mental Health Survey and the Disability, Ageing and Carers Survey.

Considering all these ambiguities and difficulties, regardless of what other questions are in the new census, to provide high-quality data for the planning of future services, the Census should include this question: Sex at birth: male, female.

Finally, the ABS has planned a sensible, optional, third question for intersex people (those with variation of sex characteristics) to record their difference of sexual development.

Patrick J. Byrne is a former national president of the National Civic Council and Terri M. Kelleher is a former national president of the Australian Family Association.