Recently my sister attended a meeting in Goulburn for women hoping to establish a women’s only space, possibly like a men’s shed. Most of the discussion was what you’d expect. Some wanted the group to focus on practical things – repairing furniture, learning basic building skills, fixing things around the home. Others thought it should also include art, knitting or breathwork activities. It was sort of civic association that sustains Australian community life.

But the meeting became tense and uncomfortable when a person who may have been a biological male asked if transwomen could join. There was an uncomfortable silence and then what had been a robust discussion fell flat. No one gave an answer. Subsequent discussions between women attending the meeting resulted in a number deciding not to get involved, including my sister. She anticipated that a transwoman attending would cause conflict in the group, and she personally did not approve of a biological man in a women’s only group. When she relayed it to me, she shrugged and said: ‘I want a place where I can relax, so I don’t want to be part of something like that.’

The incident captures where Australia now finds itself after the Full Federal Court’s decision in Tickle v. Giggle. These disputes are no longer confined to inner-city activist circles, universities or online platforms. They are moving into ordinary civic life – women’s groups, local sport and other community groups – leaving many moderate, tolerant people feeling exhausted, annoyed and increasingly alienated from the institutions supposedly overseeing these questions.

There is a danger in over-responding to this moment. Few people argue transgender Australians should be denied protection from discrimination in the ordinary course of events. In 2013, when the Gillard government amended the Sex Discrimination Act to include ‘gender identity’ as a protected attribute, the changes were broadly regarded as a humane and uncontroversial extension of fairness and dignity to a very small and vulnerable minority. The Abbott opposition accepted that premise. Senate speeches reveal that George Brandis supported the legislation while focusing primarily on preserving religious exemptions. Gary Humphries engaged philosophically with balancing equality and liberty. What is striking in hindsight is how the parliamentary debate did not touch on female-only spaces, shelters, sport, changing rooms or sex-based associations. These issues  were not on the agenda because the conflicts had not occurred. Nor were they foreseeable.

It is wrong to cast the 2013 parliament as knowingly ushering in the problem we face now. This is a classic problem of unintended consequences and – here we go again – institutional evolution. One cannot easily oppose problems that have not yet revealed themselves. Had a politician stood in the Senate in 2013 predicting that biological sex itself might later become legally contested in ordinary institutional settings, or that women’s apps, clubs and sporting competitions would become battlegrounds for competing rights claims, they would almost certainly have been dismissed as alarmist or eccentric.

Nor is it correct to denounce the Full Federal Court’s decision as judicial activism. Four judges have now looked at the matter and reached broadly the same conclusion. That is not to say an appeal will not be successful. It could well succeed. However, the Court is interpreting legislation the parliament enacted at a time when the knock-on impacts were not really foreseen. The parliament did not in any serious way turn its mind to the logic of where the amendments could lead: that eventually gender identity rights would cut across rights associated with biological sex.

The broader institutional framework is the real story. Over the past two decades, anti-discrimination law across much of the Western world has evolved from something relatively modest – prevention of clear and identifiable unfair treatment – into a far more expansive project of substantive equality and institutional transformation.

For example, the Respect@Work framework developed by the Sex Discrimination Commissioner now imposes through the Act positive duties upon employers and institutions. Organisations are now expected not merely to respond to actual sexual misconduct but to positively detect, prevent and eradicate potential harms before they occur. This necessitates a new apparatus devoted to supervision, compliance and behavioural oversight. This aligns with a substantive-equality framework now embedded in the Act which often appears detached from the views of everyday people around questions of sex, gender and fairness. These developments and protections go way beyond treaty obligations – in this case the 1981 Convention on the Elimination of All Forms of Discrimination Against Women – emerge from the expanding ecosystem of UN bodies or commissions, so-called ‘guidance’ materials, international soft-law norms, activist legal theory and institutional risk culture.

That is the deeper story behind Tickle v. Giggle The law sits on interpretive and institutional momentum that developed over many years. The Australian Human Rights Commission has played a role in that process. Institutions derive authority not merely from legal power, but from maintaining public confidence that they remain connected to practical reality and broadly shared social understandings. It is hardly surprising, then, that many sensible people now openly question whether the Commission itself retains public legitimacy due to the positions it takes on this and many other issues.

The difficulty for politicians, rather than judges, is that most Australians instinctively support both propositions at once: that transgender Australians should not be treated cruelly or unfairly, and that biological women and girls should be permitted to retain some protected sex-based spaces or associations. The Court has effectively held that the current law does not accommodate both instincts.

As gender identity is a protected attribute and there is no exception to that, gender identity prevails over biological sex. That is why the public reaction to Tickle v. Giggle has been so strong.

In anti-discrimination law’s infancy, most conservative thinkers did not regard it as a radical social project, though some raised concerns about unintended consequences.Along with the Sex Discrimination Act, the federal and state discrimination laws which proliferated in the period from the 1970s implemented what were seen as relatively modest international human rights norms into domestic law. Broadly speaking, Australians accepted the proposition that people should not be denied employment, services or participation in public life because of immutable personal characteristics.

But so called ‘beneficial’ legislation inevitably creates competing interests especially once protections expand and categories multiply. Every new protected attribute necessarily affects the rights, expectations, interests or freedoms of others in ways often impossible to foresee. Over time, the law increasingly slices and dices society into protected categories and competing claims.

Tickle v. Giggle is the point at which many Australians are reasonably asking how far this goes.