On Wednesday, Justice Mark Moshinsky ordered the tribunal's decision be set aside, meaning the case will return to the administrative review tribunal for another determination. This follows a legal journey that began in 2023 when the Lesbian Action Group applied to the Australian Human Rights Commission for a five-year exemption under the Sex Discrimination Act to allow it to exclude transgender and bisexual women from its public events, which it said were exclusively for lesbians who were assigned female at birth. The commission ruled against the group, leading to an appeal to the administrative appeals tribunal, which upheld the AHRC last January, prompting the federal court case.
In his reasoning, Justice Moshinsky said that exemptions to the SDA could be allowed given that the word 'sex' in the SDA means biological sex and because the act did not seek to eliminate discrimination at all costs. He found it was possible that discrimination could be justified if it had an overall positive outcome, and that the tribunal failed to regard two key principles: the indivisibility and universality of human rights, and that every person is free and equal in dignity and rights. The AHRC responded by stating the court didn’t decide whether the exemption sought by LAG should be granted or make findings about the lawfulness or merits of the proposed events.
According to the AHRC, the Court ordered that those questions be reconsidered by the Administrative Review Tribunal, and confirmed that when considering whether an exemption should be granted, it was appropriate to consider the extent to which the exemption would permit discrimination. The AHRC added that the Commission will review the Court’s reasons for decision and remains committed to carrying out its role independently, impartially and in line with the law, including giving proper consideration to human rights issues.