A lawyer for a Victorian lesbian group that wants to exclude transgender and bisexual women from its public events has compared its request to a Melbourne gay bar that was granted the right to refuse heterosexual people.
But a lawyer for the Australian Human Rights Commission said the Peel hotel’s exemption had been granted under Victorian state law to help gay men achieve equality, unlike the Lesbian Action Group’s application, which discriminates against transgender women.
The Lesbian Action Group (LAG) has asked the administrative appeals tribunal to overturn the human rights commission’s October decision preventing it from excluding transgender and bisexual women from its public events.
During hearings in Melbourne on Monday and Tuesday, the presiding member, Stewart Fenwick, heard the LAG maintains that transgender women are men and seeks to discriminate against them under provisions in the Sex Discrimination Act (SDA) that carve out space for lawful discrimination for the purpose of achieving equality.
The LAG’s seven members claim they need 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.
But Dr Daye Gang, the commission’s counsel, said taking trans women out of the protections of the SDA was a high bar to meet.
She said every group under the SDA was guaranteed the same bundle of rights and there was no “hierarchy” of protected groups. “This is not a contest of who is most marginalised,” she said.
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 last month’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.
The LAG’s counsel, Leigh Howard, told Fenwick the Tickle v Giggle decision was “binding” but “plainly wrong”.
“We are seeking to discriminate,” he told the tribunal, adding, on behalf of his clients: “We’re female, and we’d like some rights, please.”
Howard cited Melbourne’s Peel hotel, which was granted an exemption under Victorian state law giving the venue the right to refuse entrance to heterosexuals and lesbians and, after changes to the exemption, to anyone who upset the “character” of the venue.
“That is a really good example of how these exemptions are supposed to work,” he said. “May we please have one as well?”
Under cross-examination, the LAG’s Carole Ann said it was a “statement of fact” that the group does “not believe humans can change sex”.
She said young lesbian feminists told her there was nowhere for them to go.
“They are so isolated, they have no one else to talk to and they don’t know where to find the support,” she said. “There’s nothing anti-trans about our application at all.”
Sheila Jeffreys, a professor of political science at the University of Melbourne and lesbian feminist scholar, provided expert evidence to the tribunal.
“The fact is, there is a clash of rights here,” she said, speaking from the UK. “When men claim to be women, a clash of rights exists because women have existing human rights as women.”
Jeffreys said parts of the 2013 amendments to the SDA – which make it unlawful to discriminate against a person on the basis of sexual orientation, gender identity or intersex status – “don’t make any sense”. She said she feared they “make the law an ass”.
The tribunal heard that there were many subsets of lesbians, some more exclusionary than others.
Dr Elena Jeffreys, a sex worker advocate and academic, told the tribunal that lesbians who believed transgender women were men, were not a large group.
She said that lesbians were one group of many marginalised groups that found it hard to find public venues in which to hold events.
In August 2023, the Victorian Pride Centre rejected a booking request by the LAG on the basis that a lesbian event only for people assigned female at birth was exclusionary and contrary to the venue’s values.
At one point during this week’s hearings, Howard sought an apology from Elena Jeffreys after she said that some lesbian feminists shared common ground with Nazi fascists.
Howard argued that the lesbian feminist community was subject to violence and abuse and people labelled “trans-exclusionary radical feminists” were the target of both online and physical hate.
Fenwick said the case was “challenging” and that it was of “no surprise that there’s been a little bit of heat” during the hearings.
The commission received about 500 submissions from Australia and around the world in response to the LAG’s application, including from the UN rapporteur for violence against women, Reem Alsalem.
A decision is expected by December, after which it is possible the case may advance to the federal court.
