A Victorian lesbian group cannot exclude transgender and bisexual women from its public events as doing so would constitute unlawful discrimination, a tribunal has ruled.
In 2023 the Lesbian Action Group (LAG) applied to the Australian Human Rights Commission for a five-year exemption under the Sex Discrimination Act (SDA) to allow it to exclude transgender and bisexual women from its public events.
The commission ruled against the LAG, so the group asked the administrative appeals tribunal, now known as the administrative review tribunal, to overturn the decision.
Late on Monday, member Stewart Fenwick handed down his finding, upholding the commission’s original decision.
Exemptions carved into the SDA allow for discrimination in certain cases. The LAG argued that it should be treated similarly to the Peel hotel in Melbourne, wherean exemption under Victorian law enabled it to refuse heterosexual people on the basis that doing so would help gay men achieve equality.
But in his finding, Fenwick said the applicants identified as “a discrete minority within a group in the community that is already identified by their sex and sexual orientation, characteristics that afford them the protection of the SDA”.
“They seek to actively discriminate against another group in the community identifiable by their gender identity, a characteristic also protected under the SDA.
He said “endorsing overt acts of discrimination cannot be the intended effect” of exemptions within the act.
Nicole Mowbray from the LAG and the Lesbian Gay Bisexual Alliance Australia said the ruling was “extremely disappointing”.
The LAG was considering whether to appeal against the finding.
Anna Brown, the CEO of Equality Australia, welcomed the tribunal’s finding “which recognises discrimination laws exist to protect all of us, especially communities that have experienced historical discrimination and marginalisation”.
“Transphobia has no place in our society and groups seeking to divide our community … do not represent the vast majority of lesbians or queer people more broadly.”
At hearings in Melbourne in September, the tribunal heard that the LAG believes transgender women are men and that its seven members claimed they needed to hold public events – as opposed to private events that are not subject to the same laws – for the advocacy and wellbeing of lesbian feminists.
The commission argued that granting the LAG an exemption from usual gender discrimination laws could contribute to heightened health risks among transgender lesbians. It also looked to August’s landmark Tickle v Giggle federal court decision, which found transgender women were women and should have access to women’s services such as LAG events.
