Key Takeaways
- The Lesbian Action Group sought a five‑year exemption from Commonwealth sex discrimination laws to hold events limited to “lesbians born female only.”
- The Australian Human Rights Commission and the Administrative Review Tribunal both rejected the request, but Federal Court Justice Mark Moshinsky overturned the tribunal’s decision, citing a material error in its reasoning.
- Justice Moshinsky clarified that the exemption power is not confined to cases of “positive discrimination” and may be granted even when it permits otherwise prohibited discrimination on the grounds of sex, sexual orientation, or gender identity.
- The group celebrated the ruling as a procedural victory, while LGBTQ advocates warned that efforts to exclude transgender women could undermine broader queer rights and embolden hostile actions against trans people.
- Community voices, including a transgender woman attracted to women, described the group as an outlier and argued that internal divisions weaken the LGBTQ movement and risk inviting further marginalisation.
Background and the Lesbian Action Group’s Application
In 2023 the Lesbian Action Group lodged an application with the Australian Human Rights Commission seeking a five‑year exemption from the Sex Discrimination Act 1984. The exemption would have allowed the organisation to hold public events expressly for “lesbians born female only,” beginning with an International Lesbian Day gathering in St Kilda, Melbourne. The group argued that such a carve‑out was necessary to preserve spaces where cisgender lesbian women could meet without the presence of transgender women, whom they viewed as altering the character of those events.
Initial Rejection by the Commission and Tribunal
The Commission denied the exemption three days before the scheduled event, determining that the request conflicted with the Act’s prohibitions against discrimination on the basis of sex, sexual orientation, or gender identity. The Lesbian Action Group appealed to the Administrative Review Tribunal, which in January 2025 upheld the Commission’s decision, concluding that the group had not demonstrated sufficient justification for overriding the anti‑discrimination protections.
Federal Court Intervention and Identification of a Material Error
On Wednesday, Federal Court Justice Mark Moshinsky delivered a judgment that set aside the tribunal’s ruling. He found that the tribunal had taken “too narrow a view of the scope” of the exemption power available under the Act. Specifically, Justice Moshinsky identified a material error in the tribunal’s reasoning: it had incorrectly limited the exemption to scenarios characterised as “positive discrimination,” thereby ignoring the broader discretion afforded to decision‑makers.
Response from the Lesbian Action Group
The group welcomed the judgment on social media platform X, framing it as a procedural win that allowed them to return to the tribunal and continue their pursuit of an exemption. A spokesperson wrote, “We have won the right to have the judgment from the tribunal set aside and be permitted to go back to the tribunal to continue our fight for an exemption… The fight isn’t over and the law hasn’t changed but today was a major win for us.” The statement underscored the group’s view that the court’s decision revived their legal campaign rather than altering substantive law.
Legal Interpretation of the Exemption Power
Justice Moshinsky elaborated that the power to grant an exemption under the Sex Discrimination Act is not restricted to cases of positive discrimination. He stated, “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. 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.” This interpretation opens the possibility for exemptions that accommodate a range of motivations, provided they satisfy the statutory test.
Advocacy Concerns: Katie Green’s Warning
Katie Green, CEO of the Inner City Legal Centre in Sydney, cautioned that lobbying to exclude transgender women represents an “own goal” for the broader LGBTIQ movement. She warned that any rollback of trans rights would likely be followed by attacks on lesbian and gay rights, as powerful lobby groups seek to chip away at protections won collectively. Green highlighted her organisation’s work with younger queer individuals who are increasingly open about their identities, noting that many younger trans women and lesbians are drawn to one another through shared experiences of marginalisation.
Community Dynamics and Risks of Hostility
Green expressed concern that litigation such as the Lesbian Action Group’s case fosters a culture in which individuals feel emboldened to direct “hateful and often violent” behaviour toward transgender people. She pointed out that many of the cases her centre handles—regardless of size—center on trans people’s right to occupy public spaces. Consequently, she speculated that disputes over access to women‑only events could pave the way for further restrictions, such as toilet bans, signalling a broader trend of exclusionary policies.
Perspective from a Transgender Woman: May May’s View
Sydney resident May May, who identifies as trans and is attracted to women, said the Lesbian Action Group’s stance does not reflect the views of the wider LGBTIQ community. She doubted that many trans women participate in the spaces the group seeks to protect and characterised the group as an outlier within queer circles. May May emphasized that loving women inevitably involves loving both trans and cis women, and warned that internal divisions are self‑defeating: “Having pockets within the LGBTIQ community attacking trans women was ultimately…self‑defeating, because it creates an environment in which the queer community as a whole could be marginalised.”
Broader Implications and the Path Forward
The ruling does not change the substantive law but returns the matter to the Administrative Review Tribunal for fresh consideration, leaving open the possibility that an exemption could eventually be granted. Observers anticipate that the tribunal will now weigh the group’s arguments against the broader societal impact of sanctioning sex‑based exclusion, guided by Justice Moshinsky’s clarification of the exemption’s scope. Meanwhile, advocacy groups continue to mobilise, warning that any victory for exclusionary tactics risks eroding the hard‑won gains of the entire LGBTIQ movement and could precipitate further struggles over access to public facilities, services, and recognition. The outcome of the renewed tribunal deliberation will thus be closely watched as a bellwether for how Australian law balances competing claims of identity‑based inclusion and exclusive cultural spaces.