One of the deeply contested issues in Western societies at the moment is whether the law recognises the reality of biological sex. This is not only a question for faith groups, but it is one that most religious traditions regard as crucial- that there is a difference between men and women, and this difference can matter in some important contexts. But the question is also important for others in society, as this fundamental feature of humanity comes under challenge from those who claim that sex (or gender) is changeable.

The decision of Moshinsky J in the Federal Court of Australia, in Lesbian Action Group Inc v Australian Human Rights Commission [2026] FCA 432 (15 April 2026), arguably moves the law of Australia one step closer to acknowledging biological reality. The litigation is not over (and the very important appeal in Giggle v Tickle is still awaited, on similar issues – see my previous comments here) but it seems there is some progress.

In brief, the Lesbian Action Group (LAG) wanted to offer social events for “lesbians born female” (see para [2]- further paragraph references will be to the judgment of Moshinsky J unless otherwise specified.) Just to be clear, this would exclude those who were born male but may now identify as female, or “transgender”. Conscious that this may have been seen as breaching the Sex Discrimination Act 1984 (Cth) (“SDA”) in various ways, the LAG sought to make use of s 44 of the SDA, which allows an “exemption” from the prohibitions on discrimination to be authorised for certain periods of time, by the Australian Human Rights Commission (“AHRC”). The AHRC refused to grant an exemption, and this decision was affirmed on review by the Administrative Review Tribunal (“ART”)- see the earlier decision in Lesbian Action Group and Australian Human Rights Commission [2025] ARTA 34 (20 January 2025) (“Tribunal decision“).

The matter now came on appeal to a single judge in the Federal Court of Australia. In brief, Moshinsky J overturned the decision of the ART on two grounds, and sent the proceedings back to the Tribunal for further hearing (by a different member). Unfortunately for many who would like to have seen a clear resolution of the key issue as to whether the word “sex” in the SDA means biological sex, his Honour did not find it necessary to decide this point, upholding the appeal on two other grounds. He commented at [17] that this meant that he did not have to decide matters that will have to be addressed in the forthcoming appeal in Giggle v Tickle, when it is finally delivered. While technically correct, it is to be regretted that the ART will not have his Honour’s guidance on this issue in reconsidering the case, and to be hoped that the Full Court decision will be handed down soon before the re-hearing happens.

Here I will just mention briefly the successful grounds of appeal. Ground 1 was that the Tribunal had been mistaken to hold that s 44 of the SDA only allowed exemptions which did not contradict other provisions of the Act. Ground 2 was that the Tribunal had ruled that they did not need to consider some important principles set out in the legislation establishing the AHRC in coming to their decision.

In relation to Ground 1, we need to note that while the SDA generally prohibits discrimination in various spheres of activity based on a range of characteristics- sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding – it clearly recognises that in some areas of life such discrimination is not unlawful.

After listing a number of examples of provisions excusing discrimination which would otherwise be unlawful, his Honour commented:

[30] It is apparent from some of these exceptions that the SDA does not pursue at all costs the object of eliminating discrimination against persons on the ground of sex etc in the relevant areas: see Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [5] per Gleeson CJ.  Rather, in some contexts and some circumstances, the Parliament has considered it appropriate to limit the extent of the prohibition on discrimination on the ground of sex etc in recognition of other competing interests.

These features of the Act (and others listed in para [31]) were in contrast to statements made by the Tribunal in the previous proceedings that “an exemption that fundamentally detracts from the operation of the SDA should not be permitted” (Tribunal decision at para [164], quoted by Moshinsky J at [66].) His Honour, after carefully reviewing the decision, concluded that this approach was erroneous. The very purpose of s 44 was to allow exemptions to be granted for conduct that would otherwise be discriminatory, in recognition of other interests that needed protection.

[98] In my opinion, this was too narrow an approach to the construction of the exemption provision.  The exemption power is constrained by the objects, scope and purpose of the SDA, with these matters to be ascertained by reference to the Act as a whole.  The Act contains a number of exceptions that limit the extent to which the Act pursues the objects in s 3 in recognition of competing interests.  Where an exception applies, a person is permitted to discriminate on the ground of sex etc in the relevant circumstances.  Likewise, where an exemption is granted pursuant to s 44, a person is permitted to discriminate on the ground of sex etc in the circumstances specified in the exemption.  While an exemption may be granted in circumstances that could be described as ‘positive discrimination’, the power to grant an exemption is not limited to such cases, and an exemption may be granted which serves other interests notwithstanding that it permits a person to engage in acts of discrimination on the ground of sex etc that would otherwise be prohibited.  By giving determinative weight to the fact that the proposed exemption would be contrary to the objects in s 3 and the prohibitions in the SDA, the Tribunal fell into error. (emphasis added)

In other words, in determining whether an exemption should be granted, the Commission was entitled to consider a range of other interests, including (for example) the interest of those who are sexually attracted to women, not to have their events intruded upon by biological males.

In relation to Ground 2 of the appeal, the Tribunal had ruled that it did not need to take into account general “human rights” issues outside the parameters spelled out in the SDA. This, the LAG argued, was explicitly in defiance of s 10A of the Australian Human Rights Commission Act 1986 (Cth) , which provides:

Duties of Commission

  10A (1)   It is the duty of the Commission to ensure that the functions of the Commission under this or any other Act are performed: 
(a)   with regard for: 
(i)   the indivisibility and universality of human rights; and 
(ii)   the principle that every person is free and equal in dignity and rights; and 
(b)   efficiently and with the greatest possible benefit to the people of Australia. 

  (2)   Nothing in this section imposes a duty on the Commission that is enforceable by proceedings in a court.

Comments of the Tribunal to the effect that this provision did not need to be considered are quoted in Moshinsky J’s decision:

[121]…The Tribunal stated that s 10A did not “speak directly to the scope of the power in s 44” because the matters the section referred to were “aspirational or exhortational” (at [127]).  Later in its reasons, the Tribunal referred to its earlier determination that “no particular priority” could be attached to human rights under the SDA (at [153]).  These passages indicate that the Tribunal did not consider that it was required to comply with the duty in s 10A(1)(a). 

This, his Honour said, was a clear error of approach, and Ground 2 was made out. Interestingly, his Honour also agreed with LAG that Guidelines issues by the AHRC in 2009 on the issues were also defective because they did not refer to s 10A see para [125]. He indicated that, while he would not issue a formal declaration, he expected the Commission to revise the Guidelines in light of his ruling.

The effect of the direction to comply with s 10A would seem to also point to the need for the Tribunal, in its rehearing, to give due weight to other human rights put forward by the LAG.

Overall, the decision is a sensible one to be applauded. It does not resolve the main issue in the case, but it provides guidance in the right direction. It is to be hoped that the Tribunal in its next hearing will give appropriate weight to the right of the LAG as a voluntary group to organise events in accordance with its ethos of support for biological women. We also keenly await the decision of the Full Federal Court in the Giggle v Tickle proceedings for the wider issues.