GENEVA – In a today, the Special Rapporteur on violence against women and girls, Reem Alsalem, expressed grave concern over a decision by the Federal Court of Australia in the case of that the exclusion of a male who identifies as a woman and is recognised as female under the law from a female-only social media platform constitutes unjustified indirect discrimination.
“The ruling demonstrates the concrete consequences that result when gender identity is allowed to supplant sex and override women’s rights to female-only services and spaces,” said Alsalem.
She noted that the ruling concerned the Australian Sex Discrimination Act, and that while the Act differentiates between the concepts of sex and gender identity, this distinction is abandoned in practice. She said the Act severed the term sex from its ordinary meaning of biological sex, operating on what she described as a built-in and fictitious premise that every human being has a gender identity. Consequently, she said that the Federal Court had argued that the Convention on Discrimination against Women (CEDAW), ratified by Australia in 1983, was irrelevant to certain aspects of this case, on the pretext that gender identity discrimination was not alleged in favor of a man or men. However, in her view, the Court ignored the fact that the CEDAW Convention recognises that there are women who are more vulnerable to discrimination as a result of the interplay between sex and other factors that affect their lives.
Alsalem said that the Federal Court relied on a general anti-discrimination provision of the International Covenant on Civil and Political Rights (ICCPR), article 26, next to Australian legislation to argue the prohibition of discrimination based on gender identity. However, as noted by the UN Human Rights Committee, “not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant”.
The Special Rapporteur referred to the she issued in relation to this court case, which highlighted that “where tension may arise between the right to non-discrimination based on sex and non-discrimination based on gender identity, international human rights law does not endorse an interpretation that allows either for derogations from the obligation to ensure non-discrimination based on sex or the subordination of this obligation not to discriminate based on sex to other rights”.
The Special Rapporteur expressed concern that the court decision could make it potentially harder for women and girls to argue for the proportionality, legitimacy and necessity of female-only spaces in some circumstances.
