Thread by @tribunaltweets2

Giggle vs Tickle Federal Court appeal Day 3 Part 1. GC JP asked a qeustion yesterday about purpose (or Purvis?)- definition of appropriate comparator. refers to another case in Qld

(missed section). Qld 2018 decision. the court of appeal extracts definition of disability in Purvis before High court. concept of disability "resulting" in disturbed beahviour. 2 components of reasoning 1/ disability. 2/comparator

Disability. in Purvis the complainant had a condition resulting in disturbed behaviour. Judge: that behaviour couldn't be left out. In relation to GI need to take into account both intrinsic sense of self but also external presentation.

on comparator q in Purvis: circs being compared included circs of violent and distrubed incidents. taking that approach in the context of GI disc is incorrect for 2 reasons. appearance is itself GI differnet from definition of disability in purvis "resulting" in disturb behaviour

But GI doesn't *result*. It *is*. first basis. the second is that the acts are quite different. refs to characteristics extension. the characteristics of a disability in qld and federally are different. para 53 of court of appeal reasoning on characteristics

(missed section). One example from yesterday - changeroom. i explained that GI can be conceived of as intrinsic and expression. ultimately the appearance counts. a person for whom there is no discord between male G expression and perceived identity

if someone has an intrinsic sense of self as male in circs where appear female…. JP i put that example on day 1 to NH. that approach would undermine the concept of sex discrimination. GC exactly.

yesterday i was explaining 7d - distributive construction issue. Vice of appellant construction in allowing for diff forms of proscribed discrimination under the cover of special measure (cover not word used, this is paraphrase)

section 7d does also apply when bringing about disc to another group as indirect disc. that operates consistently with the statutory scheme for avoiding proscribed disc. example from Jacombe. imagine the union gave effect by asking for birth certificates.

the effect of that form of proof would be that women whose GI does not match sex at birth would be disadvantaged. this is is discriminatory under 5b2. measure needed to balance. NH the reach of 7d to indirect disc might raise incoherence due to any special measure could exclude

another group… (missed section). para 35 of our original submnission. e.g. a fun run limited to women, no impact of SO or marital status. is not incoherent for legislation to preclude measure about disc against another group. You need to consider all the statutory avenues

(missed section - GC speaks quite fast). Ultimately NH might agree that a special purpose under 7d is ok, but our position is that jars with the statutory purpose in section 3 of eliminating disc on all protected grounds. there is no object that is subject to the need for

substnative equality between men and women. paras 37 to….?? - statutory maxim identified yesterday was there from the get go. appellant SDA bundle tab 2.1 p. 44

JP looking for the ref. Section 33 of the 84 progenitor of 7d. we draw attention to the words at end "in circs in relation to which provision is made by this act". when you look at what comes before those words would be redundant unless provision of render each to each

i.e. distributive operation. section 7d sub paras the groups in relation to which special measures are permitted. ref to amendments 2011 and 2013 - still on distributive. same bundle p. 579. 2011 explanatory memo.

breastfeeding and family resp. were added. "the amendments on these items to address special needs of these populations". 2013 which introduced GI tab 6.4 p. 732.

this is not about distributive construction - foot of p. 732 reflection that the new grounds will include protections for groups often subject to disc. the effect is supposed to be to help them. go to p. 744

there the memo explains para 47 the same approach as with breastfeeding etc. for SO, GI etc. special measures without introducing claims of unlawful disc under 5a & 5b.

which takes us to the meaning of women under 7d 1a. we have tried to explain in paras 6-10 of our submission. in light of distributive construction issue, if court decides that sex disc commissioner is right, then (section missed)

If the scope of the term women incluces transgender women then the effect of the special measure can be questioned when it focuses on a group of women (JP you mean a subgroup of women) yes if women is understood as including TG

we say it does. The appellants have argued that the removal of definition of man and woman had no impact on the act as the ordinary meaning still obtains. question of what else parliament needed to do to make it clear that it now had a broader ordinary meaning

so now broad enough to include transwomen. difficulty states appellant when you do not have dictionary definitions to rely on. need not be a "slave to the dictionary" (JP words). need to rely on real world usage

ref Masson and Parsons (sp?). that case concerns meaning of parent under family law act. court concludes that whether a person qualifies acc to ordinary english meaning of parent needs to be contemporary australian understanding

and relevant circumstances. we argue the same applies here in relation to defining women. example of transman who seeks to breastfeed would not be protected by that provision. retrofitting the meaning of woman would be the tail wagging the dog.

a distributive construction… if special benefits for breastfeeding mothers e.g. a separate room in a workplace - special measure for substantive equality. privacy including to express milk. if a transman refused access that could constitute GI disc

circs not substantively different - still need to breastfeed. JP questioned NH because this is a permanent not a temporary measure directed to achiving equality but address need of a particular group

JP this would fall into reasonable exception rather than special measure. but when NH posits breastfeeding room it works on one basis but not another because woudl exclude transmen

JP but could equally fit within reasonable exception. Last point: the commissioner's interpretation is aligned with CEDAW) - (error - this appears to be SD commissioner lawyer not GC from the start - apols). (section missed). discussion of CEDAW

JP - question: do you say the international conventions provide any other assistance with your argument? yes, in this sense that CEDAW is not the only basis for the act, there was a broadening of its constitutional basis e.g. for ICCPR

CEDAW is one plank but not the only one and not hierarchically superior as international law basis for SDA. JP Q when did CEDAW come into effect for australia? (lawyer could not answer that, needed to check)

discussion on remaining time. lawyer was allowed 2 hours. act intended to cover the broadest number of people so that would include a broad view of women. (JP comment on interpretation of treaty)

CEDAW came into effect in australia on 27 august 1983. now over to Mr Wherrett.

Wherrett address ground of appeal whether reasonable. p. 172 at line 15. Commissioner seeks to advance these submissions… (not clear). Text of the provision section 5b subsection 3, "subject to" 7b.

7b of SDA book of authorities. a person does not discrimination against a person by imposing a reasonable condition in the circumstances. that poses an objective test. case DFAT and styles 1993. tab 145 p. 971. joint judgment

objective test less demanding than necessity but more demanding than convenient. analogous provision in disability disc act. (missed numerical refs). subsection 2 of 7b. three mandatory relevant consideration - non exhaustive

includes these three but not limited to. first nature and extent of disadvantage resulting from imposition of condition - qualitative assessment of disadvantage. JK is that in relation to the class of persons, not individual. W correct.

commissioner submits that consideration of whether provision entrenches ongoing disadvantage to TG persons, may be relevant to consider whether reinforcement of historical exclusion

b - feasibility of overcoming or mitigating the disadvantage. the most obvious way is some alternative option available to the respondent to make a claim resulting in no or less disadvantage. this in itself does not make a condition unreasonable

third matter - is the disadvantage proportionate to the result sought. the court must assess this. proportionate not defined in act. (correction : previous lawyer speaking was indeed GC for RT)

W: the burden falls on the appellants to establish reasonableness. ref previous case that sthg was not reasonable. section 5(2) amended but section 7b inserted (missed date)

date related to 1995 bill and explanatory memo. p. 370. the intention was for the test to be simplified to make it easier for applicants to establish discrimination.

we submit that the extrinsic material is a reliable guide to the policy intention of the parliament and intended practical application of the provisions. (missed numbers)

Intervening party LAG is next. half an hour according to timetable. JP we will stick strictly to half hour. LH lawyer for LAG. principles of statutory construction, why our meaning of women is to be preferred, and meaning of CEDAW. ref recent for women Scotland case

LH gave paper copies of relevant material to judges. have extracted from bundle. 3 points of construction: carr principle, first case. deals with issue of competing rights and interests. para 40. justice gleeson text construed acc to rational principles in the circs

beneficial approach to construction. aboriginal land council case. needs a fair large and liberal interpretation rather than purely technical. this is legislation concerning human rights. Kerney (sp?) in indig LR: ambiguity in the section.

the statute left the question open to court interpretation. that is not what arises in section 36. a particular wording concerning compensation. (did not catch full argument). we are concerned with the meaning of woman and of man

we do not need beneficial construction for that. case against city of perth - ref to fair large and liberal interpretation but task remained one of statutory construction. court not at liberty to give a construction that is unreasonable or unnatural.

if you have intention of producing equality between sexes and then equality between classes, you cannot privilege these classes over sex based class. the act touches on all aspects of society, all professions, all walks of life. has to work for all

all stakeholders of differing sophistication. last point: presumption of consistency and harmony of language. king and jacobs case: project bluesky (paris 69??). we construe the provisions so consistent with language as a whole.

there needs to be a reason not to give the same words the same meaning. the meaning of woman has to be the same throughout the act (JP that is a presumption - LH yes)

Case Morecroft. it is coherent to give the same meaning to the same words in different part of the statute. 7d of the SDA. moving away from principles of construction.

p. 117 of joint authorities bundle. 7d 1a refers to women. then other letters refer to women who are pregnant, breastfeeding. the woman here is a biological woman who falls pregnant, gives birth, breastfeeds. JP what of biological women who cannot fall pregnant or breastfeed

they are women for the purpose of this section as well. JP they are the people - women who are pregnant are being contrasted with people including women who are not pregnant… but even women who are potentially pregnant. you are still talking about a subset of women?

LH this is biological women. JP you mean women who are assigned…? (tapered off). LH yes chromosomes gonads etc. some provisions are gender neutral e.g. family responsibilities

section 31 exemption from dsicrimination. nothing makes it unlawful to discriminate against a man for the purpose of measures for women pregnant, childbirthing and breastfeeding. broader ramification

In order to find a comparator for GI discrimination you need all circumstances including biological sex. remains relevant for the purpose of assessing the reasonable of a condition in indirect disc. changerooms have been discussed for ex.

JP - analogy as to whether an exclusion has any bearing on …. LH the reasonableness. LH relevant in all circs. relevant in terms of costs among others, sex becomes relevant.

passed over by those opposing our arguments. nobody's rights are prejudiced, no one is losing out. a transman giving birth is protected by reason of the person's sex. 2013 extending protections to people not defined by reference to sex, but the sex class remains

the EM relied upon by (bromwich?): at supplementary bundle of SDA extrinsic material tab 6.4. (time for JP to find ref). para 10 of EM. internal p 12. pdf 739.

LH paras 10 onwards on p 12 of 2013 EM. Item 6 to insert defintion of GI para 11 to provide protection for people of diverse gender. para 13 gender is distinct from sex. that is consistent with our construction.

intersex paras 14 and 15. recognition that intersex is biological and is not a GI. does not create a third sex. intersex person may have attributes of both sexes - this is why opposite sex was taken out and different sex put in. to accommodate intersex

para 18. the one extracted by the trial judge but he did not take everything else into account. the language of EA is that sex is changeable, but this cannot be sustained when you look at all these provisions: the legislators did not intend

for biological boys to intend all girls schools, sleep in their dormitories, for men to be in women's changerooms. one cannot seriously conclude that the legislators intended this from reading the Act and EMs.

a comparison: EA has proposed 3. one is their mention of a hypothetical intersex man who contracts ovarian cancer by reason of negligence of the doctor, EA claims we would refuse them the ability to sue. Not so. "A medical records system for someone who identifies as a man

would not allow for redress". This is not a correct interpretation of intersex provisions. These hypotheticals moreover do not take into account reasonable. moreover their examples grate against the purpose of these exemptions.

CEDAW is a convention wholly for women. It does not mention the unique needs of the transgender community. it exists because of the social and physical conditions for women. we need to give effect to that purpose. ref written sub re text of CEDAW

CEDAW is not a living breathing (evolving) instrument. What CEDAW says is selectively quoted by the commissioner. para 5 of gen recommendation 28. already decided by this full court that this act protects women

April decision for women scotland. yes different jurisdiction but: paras 12 and 13, tab 73, joint list, p. 480, even from para 8. UKSC concerned to resolve the question of sex vs gender rights. need consistent meaning for terms throughout the act.

paras 151-4 - equality act uk intended to balance. cannot conclude that legislature anything other than the concept of biological women - just as i have gone through the SDA. also note what UKSC says about lesbians.

Equality australia appearance next. @threadreaderapp unroll pelase