Julia Gillard’s attempt to backpedal on gender laws is wild.
For those who missed it, Julia Gillard’s Labor government was responsible for controversial changes to the Australian Sex Discrimination Act in 2013 that effectively erased biology and replaced it with gender identity.
It is a bill that carried on from the failed Human Rights and Anti-Discrimination Bill (2012) which proposed changes to protections for gender identity. This, itself, followed a much longer public discussion on the topic of transgender rights.
The bill did make exclusions that should have, in theory, protected biological sex in some situations, but those exclusions were obviously not specific enough to stop them being re-interpreted. Scrolling through the detail in retrospect, those debating the bill were far more interested in guaranteeing religious exemptions than safeguarding biological protections.
According to fragments of speeches made by the Coalition to the Australian Sex Discrimination Act, the 2010 Federal Liberal team apparently took a version of gender identity inclusion to the election as policy. Although, it must have been a very quiet bit of background footnoting because it’s hard to find any trace of it online today. Perhaps they were referencing their sexual orientation policy direction.
The meat of the point is that both parties wanted credit for the changes to gender identity at the time. They genuinely thought they did a good job. Transgender rights were riding a cultural high after the victories of gay and lesbian acceptance. It was good politics…
On Wednesday last week, former Prime Minister Julia Gillard was speaking at Manchester University. The event was picketed by a very small group of feminists outside. Inside, one member of the audience managed to ask Gillard about the loss of women’s rights in Australia due to these definition changes in law.
This is the question asked:
‘I want you to reflect on your time as Prime Minister of Australia when you changed the sex discrimination law to reflect gender identity and not sex, meaning that women in Australia are no longer defined in law by biological sex. Did you consider or reflect on some of the unintended consequences of that?’
Gillard replied:
‘Look, I’m not sure this is going to be too interesting to the audience because it’s a very Australian matter. But let me just respond in the following way: if you look at the parliamentary debates in the changes to the Sex Discrimination Act in 2012, you’ll find that the issues you’re referring to were not raised by anyone because they simply weren’t a matter of public discourse the way they are today. So, it was a different time. It wasn’t something squarely before the Parliament at the time the legislation was being amended. So, I think we make an error in uplifting what we know now in public discourse now and just putting it down 14 years ago.’
If what Julia Gillard says is true, why were the changes made?
Why dissolve biological sex in favour of gender identity if the question of gender identity was not the central issue?
Surely the very existence of the change means it was raised sufficiently to make it into law…
It does appear, however, that the politicians involved did not properly debate this bill and made very little effort to war-game unintended consequences. Considering it was, effectively, the second time around for the topic, the political class really phoned this one in.
In the original amendment, there were exemptions made to the inclusion of gender identity over biological sex, including to section 39 (voluntary bodies) and section 42 (sport). The existence of these exemptions strongly suggests that the pitfalls and danger of the amendment must have been known, else, why are they in there? Exemptions exist because of an assumed conflict.
Gillard is being strongly criticised for saying, it was a different time.
The implication being that Parliament was naive to the pitfalls of disempowering biological sex in law.
Gillard may no longer be in government, but both major parties have had several chances to fix earlier mistakes and, just last week, chose not to do so. The Greens have made utterly outrageous comments directed at One Nation, who were effectively herding the Coalition into stepping up.
Ignorance can no longer be used as an excuse for the problem of trans activism interfering with sex protections, but what about in 2012-13? Was Gillard right?
Not really.
Concerns about gender identity clashing with biological sex protections had been hitting the news since the late 90s and was a significant topic by the 2010s. In the US and UK, issues were arising with transgender individuals, almost always biological men, seeking to use women’s changerooms and toilets. Women were making complaints about privacy and potential risk while transgender activist groups were putting legal pressure on colleges and businesses to accommodate their wishes. The US was issuing guidance on this in 1998.
There were certainly enough articles in the news and legal conflicts popping up to alert politicians in Australia of a problem with their legislation.
And they did not even have to go looking for it, because there was an excellent submission made to the Human Rights and Anti-Discrimination Bill (2012) by a professor at the University of Melbourne which spelled at the problem extremely clearly.
In one section titled: The right to ‘gender identity’: a clash with the rights of women.
It states:
‘This submission addresses the addition of a new “protected attribute” in the Human Rights Bill, that of “gender identity”. The protected attribute of “sex”, under which women are protected from discrimination, is still in the list, but adding the new category of “gender identity”, could potentially create a clash of rights between male-bodied transgenders on the one hand, and those disadvantaged on the grounds of sex, women. In other jurisdictions, such legislation has seen the emergence of successful legal challenges in which male-bodied transgenders have sought access to spaces previously reserved for women, including women’s services such as sheltered housing, women’s toilets, and women’s prisons.
‘The demands of transgender activists to have “gender identity” included in human rights legislation were first articulated in detail in the US in the 1995 International Bill of Transgender Rights (Frye, 2000). It demanded the right to express the “gender identity” of choice in whatever way the exponent desired, particularly in any spaces previously reserved for women. An important right in the Bill is that of entering spaces set aside or for women, “The Right of Access to Gendered Space and Participation in Gendered Activity”.’
Yes, it was for the earlier bill, but it was at a similar time to the same Parliament on the same topic.
For this to even be written confirms the debate existed, that the conflict of rights was documented, and that it was not a different time, but rather the beginning of a cultural conversation that was never properly considered.
No one, as far as I can see, has explained why these concerns were dismissed or why nothing was done when it became clear the legal interpretation of the law had veered sharply from the intention of Parliament.
Or indeed, why the Labor Party outright refuses to fix their earlier mistake.
Groups, organisations, politicians, and activists who are meant to protect the rights of women no longer appear to do so. The debate about having to prove if you are a woman only exists because the definition of woman was opened up to opinion and interpretation.
Anti-discrimination rhetoric has drifted from its intended goal of equality and morphed into the falsehood that all discrimination is bad. In reality, discrimination is a vital part of every human system. We discriminate who we let into our homes. We use marks to discriminate who enters a university. We discriminate upon entry to a country. We discriminate on the transaction of goods and services based on price. We discriminate (or used to) in sport based upon segregated genders to create competitive fairness. We discriminate based upon the human right of freedom of association. And we discriminated on biological sex for safety, comfort, and practicality.
We use discrimination to organise our society. The vast majority of the time, discrimination is not an abuse of human rights. Often, it protects those rights.
There are only two questions that matter in this debate:
Can a human being change their sex? Do we believe sex-based division in sports and private areas is valid?
The answer to the first question is obviously no. Your sex is decided at conception and nothing can change it.
Do we, as a society, believe in women’s sports? Do we want women’s bathrooms? Women’s clubs? etc
If the public answer is yes, then it is the duty of Parliament to change the law to reflect the voice of the people. As it stands, they outright refuse to do so. They are saying, by their actions, that transgender rights matter more than biological rights.
Politicians can make that argument if they wish, but they must be transparent about what they are saying and the laws they are inflicting on the 13.69 million women in this country who have been robbed of their hard-fought rights.
Flat White is written by Alexandra Marshall. If you would like to support her work, shout her a coffee over at donor-box.
