Back in January I wrote a piece for The Spectator Australia on the US Supreme Court’s (SCOTUS) hearing of an appeal concerning the right of transgender women athletes to compete in female sports. The SCOTUS judgment is still pending but the clear indications from the hearing are that the SCOTUS will uphold the right of sporting bodies to exclude transgender athletes from competing in defined sex sporting contests. I wrote that the fact the SCOTUS was forced to wade through thousands of pages of pseudo-scientific debate and hear evidence of scores of so-called experts about the physical differences between men and women shows us where we are as a society.
Concerningly, this is not unusual. There are many recent examples of the Courts being called on to determine head-scratching controversies with no obvious commonsense bases, but which are thrust on the judicial system by various organisations, including government bodies, making decisions that are out of step with mainstream opinion.
Closer to home, this week the Australian Federal Court determined an appeal by the Lesbian Action Group Inc (LAG) against the Australian Human Rights Commission (HRC). The LAG sought an exemption from the Sex Discrimination Act (SDA) to allow them to host female (i.e. biological females) only events including to celebrate International Lesbian Day. The SDA prohibits discrimination on various grounds in connection with the provision of goods and services, including ‘gender identity’. Back in October 2023, the HRC declined LAGs exemption application. The LAG appealed the decision to the Administrative Review Tribunal (ART) which in turn affirmed the HRC’s ruling. The LAG then appealed to the Federal Court, arguing the ART made errors of law.
The appeal ran for two days before Justice Mark Moshinsky, who this week overturned the HRC and ART rulings and sent the matter back to the ART to be decided by a different group of Commissioners, but this time according to law. From a legal perspective, the case turned on how the relevant provisions of the SDA should be construed. Much of the Court’s reasoning is therefore technical and not overly interesting to the casual observer. A central issue in the case was whether certain exemptions in the SDA should apply to allow the LAG to exclude biological males. One of the exemptions is for the discrimination to be a special measure for the purpose of achieving equality. In this regard, the LAG’s articles of association state: ‘The LAG [is] a political advocacy group for, by, and about lesbians in Australia and internationally, to assert the biological fact that sex is binary and immutable, and to fight the oppression of and discrimination against lesbians wherever they see it.’ To fulfil these objectives, the group say they: ‘Wish to meet on a regular basis as Lesbians Born Female for our own well-being in order to exchange information, hold workshops around a range of issues pertinent to Lesbians, and celebrate our many achievements.’
In the exemption application, the LAG described a proposed October 2023 social event as an ‘all-day fun-filled culturally appropriate lesbians born female event’. Now to me at least this all seems entirely reasonable and the LAG took the laudably responsible and transparent step of seeking a lawful exemption from the HRC in advance.
The ARC and Tribunal found otherwise. Evidence against the grant of the exemption led by the HRC included an expert report of a professor who gave evidence on the impacts on trans women of inclusion and exclusion from public spaces and the ART determined that the evidence and arguments raised failed to make the case that lesbians born female in particular experience substantive inequality compared to ‘lesbian trans women’. In a decision handed down on April 15, 2026, the Federal Court rejected the ART’s approach and held that the exemption can be applied to allow positive discrimination and to allow lesbians born female to hold their own exclusive events.
A spokesperson from the LAG stated that ‘males in lesbian spaces has been forced on the lesbian community with no consultation’. Sall Grover, Giggle CEO and women’s rights campaigner who has led her own fight with the HRC, was quoted in the media as saying the ‘Sex Discrimination Act was never intended to erase sex and replace it with subjective feelings’ and made the seemingly obvious statement that ‘no man is a lesbian’. Whilst these issues where at play in the LAG case, they were not critical to the legal controversy, which is whether the LAG should be allowed to determine who participates in their own events, based on their own criteria of who is a lesbian, or whether the HRC should be allowed to prohibit this.
I think most reasonable members of the public believe that this type of ‘discrimination’, if you can properly call it that, is completely reasonable and to force the LAG to allow transgender women who claim to be lesbians to gate crash their party seems unfair and to be a major overreach. A three-year battle, culminating in an expensive Federal Court hearing, seems a big price to pay to hold an event that caters for lesbians who want to enjoy their own designated freedom of association and ‘fun-filled social event’. The LAG showed admirably strong resolve to maintain their right to determine who attends their events, based on their common- sense criteria as to who is a lesbian, rather than to have their group’s rules forced on them by the HRC.
