Dear Dr Cody,

I am a retired Humanities and Social Sciences academic.

I am well read in third wave feminist and queer gender theory scholars, such as Judith Butler and Gayle Rubin. Bulter, for example, maintains that sex and gender are co-constructed. To Butler both physical sex and social and personal gender are performative and linguistic constructions. Here all clear distinctions between sex and gender are undecidable. To this outlook there is no objective way of determining a person’s sex on the basis of their reproductive physiology, genetics, or the size of the gametes they produce. Technically, such gender theorists adhere to a philosophy of science outlook called anti-realism, and are hence called sex-antirealists.

I am also well read in radical and gender critical feminist philosophers, such as Holly Lawford-Smith and Kathleen Stock. To such thinkers there are clear distinctions between sex and gender. Here, sex is a physiological and scientifically discernible reality, and gender refers to broadly expected social and linguistic conventions, family roles, and personal identity constructions that are derivative of one’s sex. Note, the tie between sex and gender here is not co-constructivist as sex is objective and fixed whether one is gender conforming or not, and whatever one’s sexual orientation is. Gender critical theorists adhere to a scientific realist outlook and are called sex-realists.

I understand the philosophical arguments that aim to justify both sides of this debate.

In your role as Sex Discrimination Commissioner, it is clear, in my opinion, that you are upholding a legal positivist stance where the words that define the law, and the art of legal interpretation, do not have any reference beyond law as regards their validity. It is also my opinion that you are reading the 2013 amendments to the Federal Sex Discrimination Act as embedding sex-antirealism in Australian Sex Discrimination law.

Assuming these premises, I believe I can work out what answers you would give to a series of questions I would like to ask you. I shall ask those questions, and suggest what answer your legal positivist and sex-antirealist stance entails, but if I am wrong I would very much appreciate you correcting me, and explaining where I have misunderstood you.

Q1: Would any person who gender-identifies as female be, for all legal purposes, of the female reproductive sex, even if their – to quote the 2026 census – ‘observed at birth sex’ was male?
A1: Yes.

Q2: As regards a person’s sex, is there any distinction in reality, beyond legal definitions, between a mother, meaning a female who has given birth, and a transwoman who had an ‘observed at birth’ male sex?
A2: No.

Q3: Is there any distinction in reality, beyond legal definitions, between a father, meaning a fertile small gamete producing human who has successfully sired a child, and a transman?
A3: No.

Q4: Given that you are reproductive-sex-blind as regards any distinction between biological mothers and biological fathers on the one hand, and transwomen and transmen on the other hand, would it be fair to say that you are a Sex Discrimination Commissioner who cannot scientifically discriminate between the reproductive sexes?
A4: Yes.

Q5: In light of your apparent stance regarding the Lesbian Action Group and Sall Grover, would it be fair to say a prominent role of the Australian Human Rights Sex Discrimination Commissioner is legal advocacy advancing transgender activist causes against sex-realist women?
A5: Yes.

Q6: Does it concern you in any manner that the Sex Discrimination Commissioner firmly opposes all Australians who are not anti-realists and who expect sex-based women’s rights to be upheld by Australian law?
A6: No.

Q7: Would ‘sex-realist’ be a protected gender identity that justifies a claim to legitimately discriminate against transgendered physiological males wanting access to physiologically defined female-only spaces as you read the law?
A7: No.

Q8: Does it concern you that ancient social customs protecting the reproductive family, and protecting the relative vulnerability of females to male perpetrators of sexual violence, are being radically undermined by the Australian Human Rights Sex Discrimination Commissioner?
A8: No.

If I have mis-characterised your stance in any way, please correct me publicly, preferably on this forum.

Regards,
Dr Paul Tyson