Special Rapporteur Criticizes Australian Court Ruling on Gender Identity and Female-Only Spaces

Alsalem expressed concern that the court's decision might make it more challenging for women and girls to defend the necessity and legitimacy of female-only spaces in certain contexts.

In a statement issued today, Reem Alsalem, the UN Special Rapporteur on Violence Against Women and Girls, voiced serious concerns regarding the Federal Court of Australia’s recent decision in the case of Roxanne Tickle v. Giggle for Girls Pty Ltd and Sally Grover. The court ruled that excluding a male, who identifies as a woman and is legally recognized as female, from a female-only social media platform constituted unjustified indirect discrimination.

Alsalem criticized the ruling, asserting that it highlights troubling consequences when gender identity is prioritized over biological sex, potentially undermining women's rights to female-only services and spaces. She pointed out that the case was judged under the Australian Sex Discrimination Act, which, despite distinguishing between sex and gender identity, effectively merges these concepts in practice. Alsalem argued that this Act detaches the term "sex" from its biological meaning, operating on a presumption that every person has a gender identity.

According to Alsalem, the Federal Court’s decision dismissed the relevance of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified by Australia in 1983, by suggesting that gender identity discrimination did not apply to this case. She criticized this approach as it overlooks the CEDAW Convention’s recognition of the intersection between sex and other factors that contribute to women's vulnerability to discrimination.

The Special Rapporteur also challenged the court's reliance on the general anti-discrimination provision of the International Covenant on Civil and Political Rights (ICCPR), article 26. She noted that while the ICCPR prohibits discrimination based on gender identity, it also allows for reasonable and objective differentiation if it serves a legitimate purpose. Alsalem referred to her position paper on the case, which argues that international human rights law does not support interpretations that subordinate the right to non-discrimination based on sex to other rights, including gender identity.

Alsalem expressed concern that the court's decision might make it more challenging for women and girls to defend the necessity and legitimacy of female-only spaces in certain contexts. This ruling, she warned, could set a precedent that complicates efforts to ensure proportionality and protect women's rights in specialized settings.