Transgender issues

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Pronouns, employment and religious schools

Recent press reports (such as this one from the Guardian) say that an employed teacher at a Victorian Roman Catholic school has taken action against the school for “gender identity” discrimination. The school apparently has refused to allow the teacher, Myka Sanders, who identifies as “non-binary”, to use “Mx” as a title (instead of the usual “Mr”). The school has referred to the teacher as “he” rather than using “they” as a preferred pronoun.

The complication in the action is that it seems that the school, Sacred Heart Girls College in Oakleigh, Melbourne, run by Melbourne Archdiocese Catholic Schools (MACS), has raised the fact that the Commonwealth law on this issue of “gender identity discrimination”, would allow the school to operate in accordance with its religious ethos and affirm their view that there are only 2 genders (corresponding to biological sex). So the case has the potential to require the courts hearing the matter to address the question (not so far resolved) whether an organisation can rely on a religious freedom right granted by Commonwealth law, if that right is not recognised by State law. I will explain here why I think this argument made by MACS is correct and any action against the school should fail.

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Recent cases on transgender vilification

I am presenting some material on vilification laws, and this paper deals with some recent cases on “transgender vilification”: Blanch v Smith (Local Court of NSW; 26 Aug 2025) and Dennis v Smith (Local Court of NSW, 26 Aug 2025). The paper can be downloaded below. It supplements material presented in a previous paper linked here.

Recent decisions involving TG vilificationDownload
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The meaning of “sex” – in the UK and Australia

A high profile decision from the UK Supreme Court this week, For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 (16 April 2025) (“FWS“), holds that the word “sex” as used in the UK anti-discrimination legislation the Equality Act 2010 (UK) (“the EA 2010”), means biological sex, and that the term does not change its meaning in relation to those who have obtained a gender recognition certificate (“GRC”) under the Gender Recognition Act 2004 (UK) (“the GRA 2004”). In the circumstances of this case, this meant that where a “quota” had been established for certain governance roles requiring 50% of non-executive members to be women, that quota could not be met by including those with an “acquired gender” of female due to their holding a GRC.

But the ramifications of the decision go far beyond the specific quota legislation. The question that the court had to address was whether references to “sex”, “women” and “men” in the EA 2010 included those who held GRC’s and had an “acquired” or “certificated” sex. After an extensive review of the general provisions of the discrimination law, the court unanimously concluded that a GRC did not have the effect of deeming someone to have changed their sex for the purposes of the EA 2010.

As they sum up near the end of the decision, at [265] item (xviii):

The meaning of the terms “sex”, “man” and “woman” in the EA 2010 is biological and not certificated sex. Any other interpretation would render the EA 2010 incoherent and impracticable to operate. 

As they point out, this does not remove other protections provided by the EA 2010 to transgender persons, whether or not they hold a GRC. But the ruling will have the effect that it will be possible to establish rules requiring that single-sex spaces such as changing rooms, bathrooms, and other areas designed for the use of one sex, can be reserved for those who have that biological sex and will not have to be made available to those who have the relevant sex through a GRC or claim to be of that sex on some other ground (see references to those issues in para [265] items (xiv) and (xv).)

While the decision itself does not refer to religious belief issues, the case will have important implications for religious groups whose conviction is that a person’s sex is that given at conception biologically, and cannot be later changed by other processes. (For a recent careful and scholarly analysis of the Christian perspective on these issues, see Robert S Smith, The Body God Gives (Lexham Academic, 2025), esp Part 3.) In the UK, those groups will be able to apply this view in the way that they provide services for men or women, or for girls or boys, in accordance with their faith commitments.

Of course the decision is not directly relevant to the law of Australia. But in this post I want to briefly compare the reasoning of the UK Supreme Court in its consideration of the EA 2010, with how a court in Australia might approach similar issues under Australian law, in particular in relation to the federal Sex Discrimination Act 1984 (Cth) (“SDA 1984”). Readers of this blog may recall that we have had a decision of a single judge commenting on some of these issues in the Tickle v Giggle litigation, which I previously suggested was wrongly decided. The reasoning of the Supreme Court of the UK here strongly supports my view that comments about the meaning of the category of “sex” made by the judge in that case were incorrect and should not be supported on appeal. (For an excellent overview of the FWS decision by a UK legal scholar cited by the court, see Michael Foran, “Sex has always meant biological sex“.)

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The NSW Conversion Practices law, religious freedom and Government “guidance”

The Conversion Practices Ban Act 2024 (NSW) (“the Act”) is now in force, having commenced operation on 4 April 2025. I have previously posted a paper expressing concerns about the operation of the Act in relation to religious freedom. In this post I want to re-iterate briefly some of those concerns, and comment on “guidance” on the operation of the Act provided by NSW government officials.

I commend the previous paper to readers for more details. But the following are some extracts which may help to set the scene for my comments on the NSW government guidance. Below I will be referring to the “Frequently Asked Questions” (“FAQ”) page produced by “Anti-Discrimination NSW” (ADNSW)- the version I am commenting on was dated 7 April 2025. (ADNSW is the “online identity” of the body formally known as the “Anti-Discrimination Board” established under the Anti-Discrimination Act 1977 (NSW); the President of the Board receives initial complaints under the Act- see s 14- and the Board has a number of other functions under the Act.)

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Tickle v Giggle: Sex and Gender Identity

In his decision in Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 (23 August 2024) Bromwich J in the Federal Court of Australia found that the company Giggle had been guilty of indirect gender identity discrimination when its director, Sall Grover (who was also sued), had removed Roxy Tickle from her women-only social media app. Roxanne Tickle (“the applicant”), as Bromwich J noted:

was of the male sex at the time of birth, but is now recognised by an official updated Queensland birth certificate, issued under the Births, Deaths and Marriages Registration Act 2003 (Qld) (Qld BDM Registration Act), as being of the female sex.  This followed from, and was predicated on, sexual reassignment surgery, being the term used in the Qld BDM Registration Act.. (at [3])

I commented on earlier stages of this litigation in a previous post. The question as to whether sex as a legal category is changeable, and the implications of this for discrimination law, are of great concern to many concerned with protection of traditional female-only spaces. It is a question which raises concerns for religious folk, many of whom see sex as a biological category determined at conception and ordained by God. Hence a review of the decision seems justified on this blog concerned with law and religion, although I note that none of the participants in the case professed any religious reasons for their views. The view that sex is determined by fundamental biological facts is shared by many, on both religious and scientific grounds.

In short, I think this decision is incorrect as a matter of law, and the implications of the decision are bad for society as a whole, and women in particular. I hope it will be overturned on appeal.

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Religious Freedom and the NSW Conversion Practices Ban Act 2024

I have prepared a paper exploring the operation of the NSW Conversion Practices Ban Act 2024 in relation to the freedom of churches and other religious groups to continue to provide teaching and guidance based on the tenets of their faith. The Act has received assent but will not commence operation until 3 April 2025.

Overall, the Act contains much better protections for religious freedom and the welfare of vulnerable children and young people than similar legislation elsewhere. But there are some areas where it is not clear, and it will require careful consideration by religious groups, as well those interested in so-called “gender transition” issues even from a non-religious background.

The paper can be downloaded here:

religious-freedom-and-nsw-conversion-practices-ban-act-2024Download
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Challenges to Religious Freedom: Conversion Practices law passed, ALRC report released

A brief update on two significant challenges to religious freedom which have emerged over the last few days.

First, in NSW, the Conversion Practices Ban Bill 2024 has been rushed through both Houses of Parliament, receiving final approval on Friday March 22 after an all-night debate in the Legislative Council, and is now awaiting the Royal Assent. I posted about this Bill recently. There I said:

Legislation of this sort has been introduced in other jurisdictions around Australia and elsewhere. The aim of banning oppressive and violent practices designed to “convert” someone’s sexual orientation from homosexual to heterosexual is good, of course. But those practices, while they may have existed some time ago, are really no longer around. The problem with these laws now is that their drafting can be so broad that they interfere with the ordinary teaching of religious doctrines and life within families. These laws are also often premised on the assumption that “gender transition” is a good thing which should be freely available to children, whether or not with parental permission. They raise important issues of concern to all those interested in the welfare of children, whether or not from a religious perspective.

In that more detailed post I outlined the problems with the Bill. I noted that it is at least better than some others which have passed, especially the bad Victorian law. But none of the suggested amendments put forward by faith groups and the Opposition and other members were accepted by the government, which had the numbers with the Greens to push it through unchanged.

So churches and other religious groups will need to consider carefully where the line can be drawn between counselling which urges someone to live in accordance with God’s will (by not engaging in sex outside a man/woman marriage, or by living in line with one’s biological reality), and counselling which “suppresses” a person’s “sexual orientation” or “gender identity”. The Bill (soon to be an Act) will also put a thumb on the scales of advice to those wrestling with gender confusion, in favour of “affirming” treatment, when the scientific evidence is becoming increasingly clear that for young people, puberty blockers and other such treatments are not shown to be of help, and lead to massive bodily change which can usually not be reversed.

The Act, once given assent, is due to come into operation in one year.

The second concerning development is that on Wednesday 21 March the Australian Law Reform Commission released its report Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws (ALRC Report 142). Far from “maximising” human rights, the report (as expected by those who spoke to some of its researchers) would have the effect, if adopted, of seriously impairing the operation of faith-based schools around Australia. In brief, it recommends removal of all of “balancing clauses” in the federal Sex Discrimination Act 1984 which currently recognise the need to balance the religious freedom of faith-based schools with rights of teachers and students not to be detrimentally treated on the basis of sexual activity or “gender identity”. In particular, this would remove (among other provisions) section 38 of that Act, which allows faith schools to operate in accordance with their religious ethos when making staffing and educational decisions.

The Prime Minister has noted that the government has not made a decision to formally accept these recommendations. He has indicated, however, that since the report was made available to the government in December, two draft pieces of legislation have been prepared (though not made publicly available). He has indicated he would like bi-partisan support from the federal Opposition. It has to be said that views on these issues seem so strongly held that this seems unlikely. But it will all depend on the wording of any proposed laws.

Australia needs to decide if it wants to offer parents the option of having their children educated in faith-based schools, or not. Many parents have signalled they want this option, by sending their children to such schools. But if those schools find that their very reason for existence, operating in accordance with a religious world-view, is taken away, it seems likely that many will decide it is not worth continuing operations. The federal government needs to listen very carefully to all sides of this debate.

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NSW Conversion Practices Bill- risks to religious freedom

The NSW government has introduced a Conversion Practices Ban Bill 2024 into the Parliament, with the apparent aim of moving it through very quickly. Legislation of this sort has been introduced in other jurisdictions around Australia and elsewhere. The aim of banning oppressive and violent practices designed to “convert” someone’s sexual orientation from homosexual to heterosexual is good, of course. But those practices, while they may have existed some time ago, are really no longer around. The problem with these laws now is that their drafting can be so broad that they interfere with the ordinary teaching of religious doctrines and life within families. These laws are also often premised on the assumption that “gender transition” is a good thing which should be freely available to children, whether or not with parental permission. They raise important issues of concern to all those interested in the welfare of children, whether or not from a religious perspective.

But laws of this sort can in particular have significant implications for religious freedom. I have previously provided a detailed analysis of the Victorian legislation on this topic, noting the serious problems that law has created. The good news in NSW is that the government does seem to have listened to some of the concerns about the law raised by religious leaders and other concerned citizens. The Bill is certainly an improvement on the Victorian model. But there are a number of areas where it could be clearer in protecting important rights of all members of the community, to speak and act freely in accordance with their convictions and biological reality.

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“Gender critical” victories in tribunal cases

Over the last month there have been three important tribunal decisions (two in the UK, one in Australia) in favour of women who had been disciplined or dismissed or sued for expressing “gender critical” views. This phrase, broadly, refers to those who believe that sex is a biological reality and that someone’s gender aligns with their sex. Allegations of “transgender vilification” or claims that someone’s views on this matter can be a ground for workplace penalties have been common over the last few years. But the three cases I want to mention here (involving social worker Rachel Meade, academic Dr Jo Phoenix, and commentator Kirralie Smith) suggest that the tide may be turning in favour of those who hold the view that biology matters.

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Two cases on sex and gender identity

Two recent Australian cases raise important questions about sex and gender identity as legal categories. One, a decision of the highest appellate court in NSW, held that a change in sex under the law of a State does not require a change to be made in a marriage certificate issued under Commonwealth law. The other is a decision still awaiting a final hearing in the Federal Court, where the operator of a females-only only social networking site is being sued for her decision to exclude an applicant who was born biologically male but has since undergone “gender affirming surgery”. Though neither case explicitly involves anyone whose views are based on religious beliefs, both raise important issues which connect with “law and religion” interests, and are worthy of noting.

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