Australia’s Sex Discrimination Commissioner, Dr Anna Cody, claimed transgender women could face unlawful discrimination on the basis of ‘potential pregnancy’ during a fiery Senate estimates hearing.
The tense exchange unfolded amid escalating political clashes over the definition of a woman and the legal treatment of sex and gender under Australian law, following the landmark Full Federal Court ruling in the Tickle v Giggle case.
Liberal Senate Leader Michaelia Cash pressed Dr Cody throughout Tuesday’s Australian Human Rights Commission hearing, demanding clarity on how the Sex Discrimination Act applies to biological sex and gender identity in light of the court’s decision.
The case began in 2021 when Giggle for Girls founder Sall Grover removed Roxanne Tickle, a transgender woman, from the women-only app.
Tickle took legal action, claiming the removal breached protections under the Sex Discrimination Act, which was amended in 2013 under Prime Minister Julia Gillard to cover gender identity.
The Federal Court found Giggle and Ms Grover had unlawfully discriminated against Tickle.
Cash and Dr Cody clashed over whether it would be unlawful to discriminate against a transgender woman, someone born male who has transitioned to female, on the basis of pregnancy.
‘If someone applies for a job, for example, and is a trans woman and she may be asked whether or not she intends to have children,’ Dr Cody said.
Dr Cody (pictured) said that there were ‘three aspects’ to being legally considered a woman
‘And if she replies, yes, I do, and then doesn’t get the job because that employer doesn’t want to employ women who may be of childbearing age, then she may have been subjected to unlawful discrimination on the basis of potential pregnancy.’
Cash questioned Dr Cody on whether a transgender woman could become pregnant.
‘A biological man, you stated a biological man can’t get pregnant, am I correct?’ she asked.
‘I missed that lesson in biology. I went to a convent school, the nuns may not have told me about it, but you said a biological man can’t get pregnant.’
Dr Cody said the issue was ‘about the unlawful treatment by the employer’.
‘If someone is treated unfairly on the basis of pregnancy or potential pregnancy then that is unlawful discrimination on the basis of pregnancy,’ Dr Cody said.
‘Someone who is a trans woman may be assumed to be pregnant or to be able to be pregnant.’
Dr Cody said that the protections would ‘not apply to a man’ but she would not accept that men and trans women were ‘both biologically’ male.
Cash (pictured) asked Dr Anna Cody to define a woman in the wake of Tickle v Giggle
Dr Cody assisted the Full Federal Court as amicus curiae in the Giggle appeal, providing an impartial interpretation of the Sex Discrimination Act. She was not a party to the case.
The Coalition has pledged to amend the Sex Discrimination Act to guarantee legal protections for women and girls based on biological sex, with a bill introduced into the House of Representatives by Nationals MP Alison Penfold this week.
‘For the purposes again of this estimates hearing… what is a woman?’ Cash asked.
Dr Cody responded that while biology is a factor, it is not conclusive under the law.
Dr Cody argued that ‘in terms of protection from discrimination’ the definition is broader.
‘Biology is not the only part of what defines a man or a woman. It is also defined by how that person identifies themselves as well as how they are socially recognised.’
That rationale became the focal point for repeated questions from Senator Cash, who pushed for a straightforward definition.
The exchange grew increasingly pointed as Cash set out a hypothetical scenario:
‘So for example, can a man put on a dress and call himself a woman… and then for the purposes of the Sex Discrimination Act… they are a woman?’ she asked.
Dr Cody said it involved ‘biology and physical characteristics as well as how they present themselves and how they are recognised’.
Debate over sex‑based rights has intensified following Roxanne Tickle’s (pictured) legal win
Asked whether all elements must be met, Dr Cody answered: ‘The full federal court… referred to those three aspects. So all three must be satisfied.’
Cash disputed that, highlighting the Act’s definition of gender identity.
‘A man can put on a dress and call himself a woman.’
‘And the answer is actually yes… for the gender-related appearance, absolutely, and you can be therefore a transgender woman for the purposes of the act,’ Cash said.
‘So any bloke can put on a dress, walk into a girl’s change room, and I’m allowed to be there because I actually identify as a woman, that is correct, isn’t it?’
Dr Cody rejected the simplification, emphasising the legal distinction between sex and gender identity.
‘Sex has three aspects. It includes biology and physical characteristics, it includes how the person presents themselves and how they are recognised socially,’ she said.
She clarified further that surgical transition is not required.
