Thread by @tribunaltweets2

PART 4 - Counsels starting to return. ZH (Zelie Hegel) for everyone's info is counsel for AHRC. Correcting name from last thread. Waiting on Giggle's counsel and Judge
Time is 2pm.

ZH - giving submission
- SDA go through
- Key legal questions with case
- Sex mean?
- Relates to GI?
-Special Measures?
Does section have an effect?
Sections 9, 10, 11 - whether section 5-30 gives effect.
How it apply s to trading org.s

Section 109 - re QLD
ZH - [discussing relevant sections with J]

1. Section 5 - sex discrimination - it definitional 5, a, 5b
define relevant to section 22.
- 5 deals with direct 5.2 indirect discrimination
[laying out which sections deal with different aspects]

[Discrimination reason of GI - gives GI definition (YP def.)]
ZH - that GI uses comparator in this case is 'Woman'
J - is mentioning confusing section - subsection refers 7 b and e.

ZH - continues -
[ 7D deals with special measures - to achieve substantive equality between bodies - if it's a special measure tween men and women that you can discriminate ]

(Will list specifics off threadline)
ZH continues - Section 9 references to international.
Part 2 of SDA (sex discrimination act)
Topic of exemptions - express and permanent exemptions. Talks about lawful vs unlawful discrimination...

ZH talks about power of Commission to grant exemptions - e.g. female only gym example.
Z - would you seek an exemption to know where to stand in advance.

ZH [ explains meaning of sex in act - What does sex mean in context of this act
Respondent - Sex is binary, biological, immutable, witness will bring Colin Wright

ZH - will discuss in context of marriage law.
Zh proposes is not a binary concept - mentions physiology, psyc etc>
AHRC says its sufficient not necessary to have undergone GA surgery and to be recognised under state law. J asks if necessary?

ZH - all the honor needs to find if its sufficient to record it under the law - what J needs to decided if its sufficient all cases
J - is sufficient on what your arguing and not necessarily necessary

ZH - goes to Kevin and Jennifer - relevant case.
Sex is not defined in SDA (?) act.(or QLD act?)
Lists relevant sections - the act persons sex is not minted to those two options - uses different sex not opposite sex - a deliberate choice

"different sex' to accommodate that an indv. can be neither male or female - hence is a response against a biological def of sex.
Another textual definition is GI - with or 'without designated sex at birth' So suggests sex is assigned at birth - that it can change over time..

ZH - therefore doesn't matter whether they produce eggs or sperm. Now refers to kevin & Jennifer.
Def of man or woman - looking at English decision - Corbett. Whether a TW was a woman with regards to marriage law...

ZH continues - gives paragraphs that support respondent's position (tickles).
ZH lists - Australian authorities - decision on criminal cases that def TW as a female. 1988 recognises for criminal law a TS undergone surgery that male was a female ...

J interrupted for relevance of time.
ZH - FRA decision before Federal court - looks at paragraph, a decision that supports respondent.
[ talks about transsexuals - testimony of TS - that doesn't have male orgs - discussion about doesn't change chromosomes etc.

ZH - awareness at time TS (transsexuals) with operations were normally defined at female.
Stops short of a pre-operative was female - at that time would require a change in law. But laws today in some states GA surgery not required...

ZH - [looking at Cth and state law - passports, BD certs etc, discussion of specific state laws - looking at contemporary man and women according Kev & Jen act]
J - asks will ZH address respondents argument of state and cth law.
ZH - yes, section 109 argument.

[paragraph 374 reach ultimate conclusions - that post operative men - seems to be observations of Cth ATG - points as post operative woman (?)
- references QLD laws / judgements suggest again - post operative are women ..

ZH - summing up - looking at changes since 2021 -
ZH says most states are 'moving in the right direction' -
QLD passed a new act (e.g.) J asks which state has gone furtherest down the line ZH - says Victoria.
Victoria - [ in short Victoria is self-id -no req. for intervention

ZH - says QLD is similar to VIC - (not quite as far) (Note RT is in NSW, SG is in QLD)
J asks if surgery required in QLD? Used to - law has changed.

ZH - talks about ACT - 2024 - Self-ID only no Surgery or Medical Intervention (S/M Intv.s)
ZH -every jurisdiction GA is not a general prerequisite, except for NSW.
J - relevance of current debate?

ZH - the fact these jurisdictions - have these changes - and that the word uses sex not gender [so 'sex' legally can be changed - hence the law - recognizes sex can be re-assigned]

ZH also notes not just male, female but non-binary as well - hence sex is not biological and can change. (paraphrasing)
Hence biological features not relevant sex is a social condtion

ZH - looking at discrimination against women - CEDAW,
because respondants argument relies on CEDAW - Giggle argue that sex is purely biological.
J - open up CEDAW documents
ZH - CEDAW doesn't define man or woman

ZH says CEDAW not of assistance, so going to CEDAW committee commentaries - CEDAW mentions female features - pregnancy - these characteristics are protected however...

ZH - looking at item 28 - paragraph 5 - talking about bias against women - talking about gender based discrimination against women. Text refers to Sex, ZH says that encompasses Gender - ZH says doesnt read that section relates to biological or what is meant by biological..

ZH says encompasses both concepts on sex and socially constructed identities ZH say that supports applicants case -

ZH looking at general recommendations 39 - re TW - recommends in another para [ -for self-id for that convention - CEDAW committee - in response to optional protocal from Sri Lanka - all women includes TW

J comments entered CEDAW at time with women or men, high court references nature - how does CEDAW work in relation to constitution - what is the result now of being interpretative more broadly than what Oz signed (roughly - will chk off threadline)
J is exploring meaning of words

...and that of broadening the reach of the original words. J - questioning the nature of CEDAW - in relation to CTH power - the constitution - still not clear. J comments that things moving on - but how convention interacts with CTH and CTH power - and what are the limits

J one thing to interpret - another broaden the scope - ZH argues not enlarging the scope - and says that the Committee authoritative.
J - [ how do you determine if this is this an interpretative aid - or extending the meaning or scope of original text (?)

ZH - responding to Giggle's relies on a different commentary (will find specifics provide off threadline)
ZH - says that a person can be a female sex - can after surgery..

ZH - handling Gender Identity - refers to mannerisms, appearance, social identity..references another section.
Gender is used rather than sex - diff concept - social identity regardless of biological characteristics - para 13
Gender refers to presentation - social markers etc

..doesn't recognise sex and gender have to be the same i.e can identify as male/female or non binary
Def.s captures - 'gender related identity' intrinsic sense of self - and outward social markers - mannerisms, voice or hand gestures - a dress or may not.

ZH ... by Med/Surgical interventions or Not. [gender identity may or not express social markers ]
ZH -[talking about direct discrimination of GI ...

ZH says AHRC - respondent is fundamentally inconsistent with law -[ due to denying a transgender women is a man - by asserting that they are man,
therefore they are committing GI discrimination - ( section 5Capital B )

J - asks how this impacts respondents case
ZH - has to have intentional motive to discriminate,
to look at all relevant circumstances that discrimination occurs
J - [asks how it applies to the AI of app - that discriminates were men - and some that identify as women..

J - the motivation (how that applies to an App) - this is not done overtly to gender but to appearance - men are removed and TW - how to that interact with the section?

ZH - judgement of appearance - assessing based on hair, features etc - gender related appearance
J - so that's an issue that App and respondents have to address. The question is different when you move to indirect discrimination (app?)
ZH notes section 8 -take into account

ZH is concluding. Suggests to take a break.
(Will have to check this conversation later and clarify)
Court discussing estimates of time - ZH suggests needs 45 minutes

(Court taking a break - will do a summary of this off threadline to explain recent conversation)
@threadreaderapp unroll