Thread by @cakarena

#LAGvAHRC 23/02/26 - typing up Dr Megan Blake of LAG first - as she covered every argument you wanted to hear, with reference to law, relevant guidelines, rationale and logic. It was pure sweetness . 🤩
(Correct/Savage anything I get wrong, I'm paraphrasing - I'm not typing everything word for word it would take hours.) 🧵

Overall Dr Blake argued that the Tribunal made a legal error when refusing a Section 44 exemption by misidentifying who the relevant protected class is under the Sex Discrimination Act (SDA). This error flowed directly from how sex and sexual orientation were construed.

She started her argument - has 2 independent pathways.
Pathway 1 - Sex for the purposes of the SDA is a biological category, that is not changed by gender identity.

Pathway 2 - if it’s found by Judge or the full court, that Tickle and Giggle was not decided incorrectly on this point, the SDA (Sex discrimination Act) still gives a priority to the female sex and that this category exists with unique needs and interests, even within a broader legal sex category. 1⃣

In plain English - under the Act, sex is a biological category. It is not changed by gender identity. Gender identity is a separate protected ground, but it does not redefine sex.

Because sexual orientation depends on sex, lesbian sexual orientation necessarily means female people who are attracted to other female people. If sex is no longer biological, sexual orientation loses its meaning as a legal category.

Blake explained that the Tribunal relied on Tickle v Giggle to adopt a non-biological reading of sex. On that basis, the Tribunal treated:
biological women who are attracted to women, and
biological men who identify as women and are attracted to women -as belonging to the same sex class and the same sexual-orientation class.

That move collapsed two fundamentally different groups into one. In doing so, the Tribunal eliminated lesbians as a distinct sex-based class under the Act. 😯

(CoAL, FLC etc made the same call in their meeting with AHRC a few days ago, I loved hearing it made in the court though.)
2⃣

In short once the Tribunal adopted that construction, it no longer asked whether women were entitled to organise an event for women. Instead, it framed the issue as whether one group within the lesbian community could exclude another group within the same community, distinguished *only* by gender identity.

The points she was making, I think, throughout was that this framing only arises if sex is first detached from biology. So as a result, the Tribunal: identified the wrong issue, asked itself the wrong question, and reached a conclusion based on that mistaken starting point.

(*sweetness*)

Blake addressed an objection raised by AHRC, they argued that the Lesbian Action Group was being inconsistent — that it had not made this argument before the Tribunal. Blake explained why that objection was incorrect.

Before the Tribunal, the Lesbian Action Group accepted that the Tribunal did not have the power to overturn or question Tickle v Giggle. For that reason, the Group ran an “even if” argument - even if the Tribunal was bound by Tickle v Giggle, the exemption should still be granted. However, the Group explicitly preserved its position that Tickle v Giggle was wrongly decided. This was done in its written reply submissions and raised again in the hearing.

So while the Tribunal did not address the construction issue directly, that was because it could not, not because the argument had been abandoned.
(Correct me if I'm wrong) 3⃣

Blake noted that the Tribunal did not properly engage with the reasoning behind Tickle v Giggle. Instead, it used language that assumed that decision was correct, particularly the part where sex is said not to be confined to biology. The Tribunal did not examine: what that interpretation means for sexual orientation, or
what it means for sex-based protections more broadly.

Instead, the Tribunal concluded that even if lesbians have experienced historical disadvantage compared to men, that did not resolve the issue as between lesbian women and transgender women.

That conclusion only makes sense if biological women and male people identifying as women are first treated as belonging to the same sex class. 4⃣

Blake explained that the Lesbian Action Group is now before a court with authority to decide the issue the Tribunal could not.

LAG rejected the Tribunal’s construction at the time,
preserved its position formally, raised the issue in the Giggle v Tickle appeal, and now advances it substantively as Pathway One on Ground Three.

(Looked substantively up - means: "In law,
substantive refers to the core content, rights, duties, and prohibitions that define legal relationships, rather than the procedural rules used to enforce them. It deals with the "what" of a case—such as defining crimes, contracts, or liabilities—as opposed to "how" a lawsuit proceeds.)

(Sorry, missed this - Ground three, she defined earlier, to which both pathways lead, ground 3 > there's been legal error in the tribunal's application of the Section 44 power in relation to the priority that should be afforded women as a biological sex class.)

She therefore didn't repeat the full written argument orally, she instead explained how the same construction issue, originally raised in relation to special measures, directly affects the legality of the Tribunal’s decision under section 44.

( This is the first part of her argument - need to take a break. )

Blake then showed that there is statutory support in the SDA - the Sex Discrimination Act itself presumes biological sex through: pregnancy and breastfeeding provisions, bodily privacy and undress (e.g. searches, clothing, intimate settings), occupational requirements under s 30.
These provisions only make sense if sex refers to physical sexed bodies. She reinforced this with:
Australian Government Sex & Gender Guidelines (2013/2015), which: define sex as biological, define gender as social/personal identity - AND does not say gender changes sex for discrimination law.

( because it was a law based argument - clean - articulate - no faffing about - it was all done with the stuff on the papers *sweetness* ) 6⃣

Sorry jumped the gun - she said she had to persuade his honor of 4 points.
1 - support from the language and structure of the SDA itself.
2 - support from the nature of CEDAW.
3 - the non degradability of rights for biological women under CEDAW
And 4 - would be the need for the SDA to remain reasonably capable of being considered appropriate and adapted to the implementation of CEDAW. 7⃣

Blake then gave an example from the UK Supreme Court case For Women Scotland to show how sex-based protections work in practice.

In that case, the court looked at a provision in the UK Equality Act that allows a person to request that an intimate medical examination be carried out by a practitioner of the same sex.

Even though the law does not explicitly say “biological sex,” the Court said the meaning was obvious. The purpose of the provision is to respect the right of female or male patients to be examined by someone of the same biological sex, especially in situations involving undress.

The Court explained that this is because it has always been widely accepted that people may reasonably object to intimate medical examinations being conducted by someone of the opposite biological sex.

Blake’s point was that the same logic applies to Australia’s Sex Discrimination Act. Provisions that deal with privacy, bodies, and intimate situations only make sense if sex is understood as biological. 8⃣

This was when Megan pointed to Australian Government guidelines on the recognition of sex and gender to support her interpretation of the Sex Discrimination Act. (And I don't think this has been brought up before - so I was fist pumping 💪)

These guidelines were issued in 2013, after gender identity was added to the Sex Discrimination Act, and updated in 2015. They are still in force today. Importantly, the guidelines state upfront that they were written specifically to support how the Act operates, including protections for both sex and gender identity.

In the guidelines: Sex is defined as biological — based on chromosomes, reproductive organs, and physical anatomy.

Gender is defined separately as a person’s personal and social identity, reflected in things like name, appearance, or mannerisms.

Blake’s key point was this: even when the Australian Government set out guidance to implement the Sex Discrimination Act after gender identity was added, it did not collapse sex into gender identity. The guidelines treat them as distinct concepts, with sex remaining biological and gender relating to identity and expression.
Nothing in the guidelines suggests that identifying as a different gender changes a person’s sex for the purposes of discrimination law.

Instead, they show that Parliament and government administrators understood the Act as protecting both sex and gender identity separately, not as redefining one through the other.

Blake relied on this to show that a biological understanding of sex is not outdated or implied away — it is embedded in how the Act has been officially understood and applied since the amendments themselves. 🎉🎉 9⃣
#LAGvAHRC

( Okay - more *sweetness* - this point was not made in Tickle v Giggle - and it addresses common AHRC and TRA arguments! )

Blake then addressed a common point of confusion - that sex and gender are interchangeable.

She acknowledged that the Australian Government guidelines note that, in everyday language and even sometimes in legislation, the words sex and gender are often used loosely or interchangeably. But she made a crucial clarification: That is not how the Sex Discrimination Act works.

In the SDA, Sex & gender identity are protected on separate legal bases. They are treated as distinct characteristics, not overlapping or ones that can be substituted. Nowhere does the Act or the guidelines written to implement it say that gender identity changes a person’s sex for the purposes of discrimination law.

The guidelines themselves reinforce this. They clearly define: Sex as biological (chromosomes, reproductive organs, anatomy), and gender as personal and social identity (such as name, appearance, or mannerisms).

Importantly, the guidelines never collapse the distinction or suggest that identifying as a different gender alters a person’s sex for all legal purposes. This matters because many sex-based protections exist precisely because of biological realities, not identity.

Blake then reinforced this point by referring to the recent UK Supreme Court decision in For Women Scotland. The Court said that anti-discrimination laws only function properly if protected groups are defined clearly and consistently. It warned that treating “legal sex” or gender reassignment as overriding biological sex would make sex-based protections incoherent.

The Court found no reason to think Parliament intended sex-based rights to apply to vague or mixed groupings, rather than to biological women and girls, and biological men and boys, who face discrimination because of their shared physical characteristics. Blake’s concluded that the same logic applies in Australia.
Even if “legal sex” is interpreted broadly, a biological sex class must still exist within the law — otherwise sex-based protections lose their meaning.

Quote - “Sex-based protections only work if sex remains a clear and coherent category. If gender identity is treated as changing sex, the law can no longer identify who those protections are for.”

Blake’s final argument dealt with how CEDAW must be interpreted, because some bodies, including the AHRC, have claimed that the meaning of sex in CEDAW has shifted over time through changing culture affecting an interpretation creep.

What she said meant that, that claim is wrong in law. International treaties like CEDAW must be interpreted using the Vienna Convention on the Law of Treaties. That means treaties are read in good faith, according to the ordinary meaning of the words, in their context, and
in light of the object and purpose of the treaty as a whole.

When CEDAW is read that way, its focus is unmistakable - it addresses discrimination against women as a biological sex. Many of its provisions only make sense if sex is biological. Coz they deal directly with pregnancy and childbirth, reproductive capacity, maternity leave and childcare, family planning, the spacing of children.

Other provisions address social conditions that are experienced predominantly by women as a sex, such as
unequal pay, forced and child marriage, barriers to political participation.

When the Judge asked whether this point related to Pathway One or Pathway Two, Blake explained that it relates to both:

Pathway One does not depend on CEDAW, because Parliament can legislate beyond treaty obligations.
Pathway Two does rely on CEDAW, because the SDA was enacted to implement it, and must remain capable of doing so.

Blake then referred to the official 2022 commentary on CEDAW. The commentary openly acknowledges that the Convention does not define “woman” or “sex”. But it also states - clearly - that the language of the Convention is sex-based, and that sex is understood as a biological category.

Importantly, the commentary explains why CEDAW was drafted this way. During negotiations, some states argued for a symmetrical treaty, one that addressed discrimination against both men and women equally. That proposal was rejected. The drafters concluded that such an approach would fail to recognise the pervasive discrimination faced by women because of their sex.

Instead, they deliberately created an asymmetrical, sex-specific treaty, focused on women only. CEDAW was described as “transformative” precisely because it went beyond general human rights guarantees and made women’s sex-based disadvantage visible and enforceable.

Blake’s conclusion was that CEDAW was not designed to float with changing meanings or cultural reinterpretation. It was drafted to protect women as a biological sex class, and that purpose cannot be rewritten after the fact without undermining the treaty itself, and the laws, like the SDA, that were enacted to give effect to it.

(Lunch break) 1⃣1⃣
#LAGvAHRC

Typing up the afternoon, give me a couple of hours, I'll be back with the rest.

So even though it was an hour, that hour was pretty dense. I've broken her hour into several themes and broken those themes down to several points she made for each - (otherwise it does my head in).

1/ The first point is - what does CEDAW actually say about "woman"? OR CEDAW Committee has NOT redefined “woman (take your pick)

Australia's Sex Discrimination Act is built on CEDAW - a 1979 UN treaty protecting women. Today at the Lesbian Action Group appeal, barrister Megan Blake asked: has the meaning of "woman" in CEDAW actually changed?

Respondents argued the CEDAW Committee expanded “woman” over time. Blake showed that’s false, based on the Committee’s own materials. The CEDAW Committee's own General Recommendation 28 defines its terms precisely: "Sex refers to biological differences between men and women. Gender refers to socially constructed identities." The treaty itself draws the line. Sex = biology. Gender = social construct.

2/ Intersectionality - when the Committee lists "intersecting factors" affecting women - including transgender identity - Blake argues it's describing experiences women can have (like identifying as trans men or non-binary). It never redefines who counts as a woman in the first place.
IE Intersectionality ≠ inclusion of men. Gender identity appears only as a factor affecting women, not as a way of including men within the definition of woman

The respondent couldn't produce a single CEDAW document - no General Recommendation, no concluding observation, nothing - that expressly redefines "woman" or "sex." Because none exists.

3/ Redefining “sex” in CEDAW wouldn’t be a small shift.
It would be a fundamental rewrite of a sex-specific treaty — something only states, not committees, can do. Even if the Committee wanted to expand the meaning, Blake argues it couldn't - not for Australian law. The High Court has said a treaty carries the meaning it had when Australia signed it. A committee can't rewrite what Parliament agreed to.

/12 #LAGvAHRC #LesbianActionGroup
If I've missed anything please - add or savage any mistake or misread.

AGAIN, if I'm wrong - please correct - because this was really interesting - next theme:

Are women's sex-based rights non-negotiable?
1/ Here's something most people don't know: CEDAW is one of the only human rights treaties with NO derogation clause. What does that mean?

(According to google: "A derogation clause is a legal provision within a treaty, contract, or law that allows a party to temporarily suspend or restrict the application of certain obligations under specific, emergency circumstances. Common in human rights treaties, it enables states to deviate from rights during crises, such as war or public emergencies")

Even in a national emergency, governments cannot suspend its protections. Blake argued today this has direct implications for how courts must treat it.

2/ The commentary on CEDAW states explicitly: the convention's commitment to women's equality cannot be clawed back for reasons of national security, public order, morals, religious law, or "the rights or freedoms of others." ‼️

3/ That last phrase - "rights or freedoms of others" - is significant. It means that even when trans rights and women's sex-based rights are in tension, the framework requires women's rights be treated as foundational, with any limitation requiring overwhelming justification.
😮

4/ Blake's argument: if the Sex Discrimination Act is interpreted so that women can no longer hold women-only public events, Australia's law becomes "substantially deficient" in implementing CEDAW. That's not a minor interpretation problem. It's a constitutional one.
#LesbianActionGroup #LAGvAHRC

Theme 3: Can sex and gender identity rights coexist?
1/ The tribunal said the Lesbian Action Group was "fundamentally opposed to gender identity protections." Blake pushed back - that it was simply not what LAG argued, and that view infected the entire reasoning of the decision.

2/ Blake's alternative pov: read sex and gender identity as complementary, not competing. Sex (s.5) = biological class. Sexual orientation (s.5A) = attraction based on biological sex. Gender identity (s.5B) = identity or expression within sex classes, not replacing them.

3/ On this reading, a trans woman retains full legal protection - as a biological male against sex discrimination by women, and as a trans person against discrimination by cisgender men. No one loses protection. The categories just don't collapse into each other.

4/ The key legal point: when assessing discrimination, you need a precise comparator. A trans woman's biological sex is not materially different from a cisgender man's. It is materially different from a biological woman's. Blurring this makes discrimination law incoherent.

I hope I got this right. I thought this was so simply explained - I'm quoting, and I would say its about 90% accurate, she said:

"The biological sex of a trans woman is not materially different from the biological sex of a cisgender man. It is however materially different from the biological sex of a woman.

The circumstances of the trans woman in the context of a particular discrimination case may include biological sex. For instance, if a trans woman was refused screening for a male specific conditions such as prostate cancer and if this was because they had the appearance or mannerisms associated with the female gender, this would be an instance of gender identity discrimination where biological sex was certainly one of the relevant factors.

The circumstances may not include biological sex if sex is neutral, to the facts of the case, such as a job interview to be a judge's associate or data entry. In this case, the relevant circumstances may not include sex, but perhaps the experience and the qualifications of a candidate with a trans identity versus a candidate with a cisgender identity.

Altering the sex class to which a person belongs based on their mannerisms or identity obscures the precision of the comparator analysis, maintaining the sex class alongside the gender identity class and not redefining one by the other preserves the integrity of both."

Read that last big again - just *sweetness*
#LAGvAHRC #LesbianActionGroup

Theme 4: Was the tribunal's decision simply unreasonable?
1/ Even if you set aside all the legal interpretation arguments, Blake ran a standalone ground: the outcome itself is so unreasonable that no reasonable decision-maker could have reached it. This is a high bar in administrative law. She argued it's clearly met here.

2/ What the tribunal actually decided: a group of lesbian women who are sexually attracted to female bodies may NOT hold a public event open only to female people. Any such gathering must be private, invitation-only, or open to male-bodied people. (Read that again slowly.)

3/ Uncontested facts the tribunal had before it: the group didn't intend harm to trans people. They welcomed trans-identifying biological women (non-binary, trans men). They supported young women who had undergone medical transition and needed community. None of this was challenged.

4/ Compare to the Peel Hotel - a Melbourne gay bar granted an exemption to operate as a male homosexual venue. The court there called it giving gay men "an opportunity to express themselves towards each other in an intimate way" that they couldn't get in heterosexual venues.

5/ The Lesbian Action Group asked for the same thing. Instead, the commission's expert compared their branch of lesbian feminism - the belief that lesbianism is orientation to the same biological sex - to Nazi fascism. The tribunal never rejected that framing.

6/ The commission's own expert admitted lesbian community has historically been forced into private spaces due to marginalisation. The tribunal then told the Lesbian Action Group - organise in private.
Blake- quote: "They've asked for the lawful authority to counter marginalisation in public and been told to do it in private."

7/ Finally: the tribunal had power to grant a conditional exemption - limited by type or frequency of events. It never considered this. It went straight to total refusal. Blake quoted the High Court: "taking a sledgehammer to crack a nut may be characterised as irrational."

Done-ish!
#LesbianActionGroup #LAGvAHRC

My thoughts Megan Blake was really are exceptional. What struck me reading through my transcript is exactly what she identified - she never fell into the trap that catches so many advocates on this issue, which is letting it become a binary war between sex and gender identity.

Her move with the CEDAW committee materials was particularly elegant. Rather than dismissing the committee's references to transgender status, she accepted them on their own terms and then showed they actually supported her reading/arguments - that the committee was describing experiences women can have, not expanding who counts as a woman.

She used the respondent's own materials against them. This was high-level advocacy. - just -sweetness.

The intersectionality argument was the same. She took a framework usually deployed against her position and showed that its own grammatical logic confines it to factors affecting women.

She didn't attack intersectionality - she read it carefully.
And the distributive reading of the Act - where sex, sexual orientation and gender identity each protect distinct classes without collapsing into each other - was genuinely constructive rather than oppositional.

PAY ATTENTION!!

What she was essentially saying was - nobody loses protection under her reading. That's a much harder argument to paint as discriminatory . And seriously it gives an out to AHRC if they have the brains and maturity to see it.
This was parallel dignity in action - inherent dignity of all - respected.

The Peel Hotel comparison was pointed too. Megan didn't need to say the quiet part loud - the contrast between how a gay men's venue was characterised ("an opportunity for intimate expression") versus how LAG was characterised ("akin to Nazi fascism") speaks for itself.

It's frustrating that the AHRC couldn't find that framing before it got to this point. Because Blake essentially demonstrated today that the conflict the tribunal treated as irresolvable - sex rights versus gender identity rights - was only irresolvable under a sloppy reading of the Act.

A careful reading produces a framework where both are coherent and neither cannibalises the other.

The irony is that "parallel dignity" is actually more respectful of trans people than the AHRC's position - because it treats gender identity as a genuinely distinct and protected characteristic rather than just absorbing it into a redefined version of sex.

That's a more serious legal protection, not a lesser one.
@AusHumanRights -
#LAGvAHRC #LesbianActionGroup

@threadreaderapp unroll