Sense and census; Afghanistan and Amnesty; Tickle and Giggle

It's been a wild few weeks in the trans wars

Photo by Red Diamond at iStock

First, a note to paying subscribers: Some of you will have received an email from Substack saying that your annual subscription is up for renewal and that this will happen automatically. I’m aware that when some of you took out subscriptions you did so in US dollars because that was the only option then available .. which, for Australian subscribers, ends up being rather a lot! I have since rectified the situation so that Australian readers can take out subscriptions in Australian dollars. But I don’t think an existing subscription in US dollars can be switched to Australian dollars. So my suggestion to those of you who wish to switch is cancel your subscription and take out a new subscription in Australian dollars. It’s a pain, I know; sorry about that.

Again, a huge thank you for your support. Without it, I would struggle in every way. 

Now let’s get started..

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Good natured people often ask me why I choose to get worked up about the trans debate when it’s so “fringe.” 

Well, during the past fortnight in Australia this supposedly fringe debate — in this instance centred on proposed questions on “gender identity” in the 2026 census — precipitated a prime ministerial meltdown in cabinet, a culture war within Labor, and a series of policy backflips that gave the Federal Government the appearance of a circus despite its earnest attempts to avoid precisely that perception. All this as the Opposition barely uttered a word. 

The real tragedy here is that of the Prime Minister whose rational instincts could not carry the day. 

His party, while in opposition, had (moronically) pledged to track “LGBTIQ” identity in the 2026 census. Then, just when the Australian Bureau of Statistics was preparing to unveil the new questions Anthony Albanese pulled the pin. Albo, according to a report in The Age, railed in cabinet against the question on gender identity in particular, describing it as “inappropriate” and “complicated.” Complicated, we might say, because the notion that we each possess an inner sense of ourselves as male or female or both or neither cannot be made simple.

So Albo scrapped the questions fearing the Opposition would exploit them in a culture war and deflect from the government’s messaging on cost of living — ministers even said as much publicly, which struck me as somewhat weird and meta.

It was certainly counter-productive: around half a dozen Labor MPs, most from inner-city seats under threat from the Greens, broke ranks to criticise the government. Sex Discrimination Commissioner Dr Anna Cody warned that dumping the questions would have “serious implications for the health, wellbeing and general equality of LGBTIQA+ Australians and their families.” And Labor staffers were reportedly planning a large meeting and an outraged letter to the PM; younger staffers, in particular, were “upset and emotional.”

Well now. It’s not news to me that queer activists are over-represented among the ranks of Labor staffers. I’ve gleaned as much from anecdotal evidence. One woman, for instance, told me that when in 2022 she rang Bill Shorten’s electorate office to congratulate him on restoring the reference to “mother” over that of “birthing parent” in hospital forms, his staffer refused to pass on her message describing it as “transphobic.” (Let that sink in for a moment: an electoral staffer tells a potential voter ringing to express her happiness with the staffer’s boss to shove it.) 

Another woman, distraught that bans on “conversion therapy” meant she could not access talking therapy for her trans-identified teenage daughter — a troubled young woman, socially isolated and convinced that irreversible hormone treatment would solve her problems — was similarly blocked by staffers from speaking to Labor MPs. 

But it is news to me that a dummy-spit from young, ideologically-committed staffers can shift Labor’s cabinet decisions. Seems our great social democratic party is as vulnerable to agitation from junior employees as is The New York Times, Vox, Netflix, The Guardian, the Australian Human Rights Commission, the ABC and, ahem, The Age. If that’s the case I surely don’t need to explain how such a dynamic signifies a next-level crisis in Australian democracy. The public voted for MPs to make decisions and not the unelected “theys” who answer the phones.

Alas, because the progressive media is itself populated with gender ideologues, journalists simply regurgitated the line that Albo ditched the census question to avoid getting bogged down in a Coalition-led culture war. 

Not one media outlet, at least as far as I could tell, thought it fit to explore whether including a census question on “gender identity” was a good idea in the first place. Most followed the likes of Commissioner Cody in uncritically parroting the activist line that scrapping the questions would undermine the “health, wellbeing and general equality” of “LGBTIQA+” Australians. 

The reporting — more accurately, the non-reporting — displays contempt for a public sick to death of trans activists trying to shut down arguments with emotional blackmail à la, “if you say or do such-and-such we’ll commit suicide,” a tactic as cynical as it is grotesquely irresponsible. There are many groups suffering poor mental health, few of which demand immunity from tough policy debates. How does the insistence that trans people are uniquely fragile help them foster the resilience and fortitude to fight for what they perceive as their rights?

And as the anecdote from the distraught mother suggests, there’s an even bigger elephant in this room: trans activists argue that we need to know the number of trans people in the community so we can better service them with healthcare. But in the aftermath of the UK’s independent Cass review into gender identity services for children and young people a growing number of Australians have at least an inkling that a genuine debate exists around trans-affirmative healthcare and whether puberty blockers, hormones and surgery are the best treatment for feelings of alienation from the sexed body.

In other words, I’d wager Albo wanted to dump the question on gender identity for reasons that went beyond his sense that it was bad politics: he also knew it was bad policy. Because like it or not, the idea that we humans posses a “gender identity,” which may, or may not, align with our “sex registered at birth” is hotly contested as science. It does not fall within the category of shared societal truths.  Even the ideologically-captured Australian Human Rights Commission concedes gender identity is a “contested” term.

Critics of gender identity say it’s designed to erase the category of sex entirely, to “trans” or “queer” all humanity. I’ve come to agree with them. Surely we are our bodies, there is no other dimension: if I’m to believe in a “sexed soul” distinct from the sexed body, I may as well believe in God.

In any case it ought to be beyond dispute that if our national statisticians abandon counting that which is concrete, objective and mostly verifiable for that which is ephemeral, unstable and fictitious, future generations will suffer the consequences.

Sure, the census already counts religious affiliation, which some of us likewise deem to be in substance ephemeral, unstable and fictitious. But while I might take issue with religion, I cannot deny that religion exists, and exists as a category with material consequences as its adherents build houses of worship and schools and its institutions enjoy tax privileges. As mass delusions go, religion has at least withstood the test of time.

Plus, “gender identity” is contradictory and unpindownable.

On the one hand we’re told gender identity is innate and immutable to the extent that it justifies giving gender dysphoric young people irreversible treatment. On the other hand, “gender self-ID” laws in four Australian states allow people to change the sex on their birth certificates once a year. We can reasonably presume that gender identity data harvested from one census will be redundant come the next one, five years later. 

But reeling from the backlash, the government on the weekend capitulated on the gender identity question, which will appear on the 2026 census after all. “We have listened to the (trans) community,” declared treasurer Jim Chalmers in stunning understatement.

Initially Albo had responded to the furore by reinstating only the question on sexual orientation. As it happens the 2021 census already yielded data about the number of same-sex couples with and without children. Why we must now go further and quiz Australians as to their preferred outcome on a random night out is not clear to me. Especially when there’s no way of knowing they’re telling the truth.

And what does the Australian Bureau of Statistics understand “sexual orientation” to even mean given our collective governments have legislated sex out of existence? Last month, in the landmark case of Tickle v Giggle, the Federal Court effectively confirmed that biological males can be women under the Sex Discrimination Act (1984) — more on that soon. Last week, a federal tribunal heard an appeal from the Lesbian Action Group to overturn the Australian Human Rights Commission’s October decision preventing it from excluding trans women from its public events — more on that in a future post. 

I’m not playing a linguistic parlour game. When the state deems that people with penises can be lesbians, and a good number of lesbians insist otherwise, we have yet another crisis of census definitions. 

Photo by Alexander Grey on Unsplash.

Interestingly, the government has declined to reinstate a question in the census on whether people are intersex, as in born with a variation of sex characteristics. Interesting because we’ve lost the opportunity to capture all five of Australia’s intersex individuals; interesting also because a question on reproductive systems and hormones is at least delving into that which is biological and therefore real. 

Perhaps the answer lies in the results of the 2021 census, in which a version of such a question was also asked: the question on “sex” had allowed respondents to choose from three options — male, female and “non-binary” sex. But the latter option, the ABS reported, “did not yield meaningful data.” 

While 43,220 respondents, or 0.17% of the population, indicated they were non-binary, “responses show the concept of non-binary sex was not consistently understood and was perceived in different ways by different people.” One third of these respondents provided more information in a text box; three in five of them had seemingly interpreted “non-binary” as a gender identity, referring to themselves as “agender, demiboy, gender fluid, non-binary gender and trans woman.” They had confused a question about their bodies for a question about their feelings about their bodies. 

A question about “gender identity” in the UK’s 2021 census caused similar confusion. The published results showed an unprecedented spike in the number of trans people in Newham, a London borough with a relatively high number of immigrants and non-English speakers. It was a result not mirrored in the city’s cool boroughs where you might expect “theys” to cluster. The Office for National Statistics acknowledged it was “possible” respondents misinterpreted the question, “Is the gender you identify with the same as your sex registered at birth?”

As the philosopher Kathleen Stock pointed out, the words “gender” and “identify with” are inherently mysterious so who knows what the respondents made of them. And in another complication, many migrants come to the UK without birth certificates and therefore with no registered birth sex.

**

Such absurdities should tell us something about the privileged Western character of the “gender identity” movement. Never mind the trans activists’ insistence that “the sex binary” is an invention of colonialists; never mind their fantasies about traditional non-European cultures being a lost Eden of queer, “third” genders and so on. 

Again and again the activists exhibit contempt for women in parts of the world where the sex binary is alive and kicking. Consider a report on Afghanistan from who else but Amnesty International, once a highly-respected crusader for prisoners of conscience, now a prisoner of unconscionable intersectional politics.

An Amnesty International backgrounder on the oppression of Afghan women and girls at the hands of the Taliban was doing the rounds a few weeks ago because of this line: “Under the Taliban, women and girls were discriminated against in many ways, for the ‘crime’ of identifying as a girl.” “It’s a fake!” I thought. The notion that Afghan women were female by choice, the implication they could avoid the Taliban’s brutal misogyny by simply “identifying” out of their femaleness, seemed too insane even for Amnesty, notable for zombified social media posts such as:

I was wrong: the Afghan report was no fake, although the offensive reference has since been removed, it seems. Consider that the person who had written it, no doubt sitting in an air-conditioned office, rainbow lanyard around their neck, did a conscious double-take on the word “women” in a report on the plight of females under the Taliban, the same Taliban that recently banned women from speaking and showing their faces in public or even looking at a man not their husband or blood relative. The women of Afghanistan here endured a double indignity; the fact of their oppression and the denial by their would-be saviours of the immutable source of their oppression — their female sex. 

**

In the same week that we learned of the hideous new laws in Afghanistan, a superior court in Australia affirmed the Amnesty International worldview. A Federal Court judge agreed with the Sex Discrimination Commissioner that under Australian law sex is malleable, femaleness a porous state that any male can occupy — and presumably any female can flee — so long as their paperwork is in order. 

For the past three weeks I’ve tried to get my head around the judgement in Tickle v Giggle. But each time I dipped into Justice Robert Bromwich’s published reasons, I experienced a sensation of being dangled upside down — admittedly this may have been a symptom of the peri-menopausal chaos in my body, which I’m having great trouble identifying out of. 

The case had attracted global attention, partly because it might have entailed a ruling on whether the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) — the international bill of rights for women — also applies to trans women, meaning biological males identifying as women. 

I’ve flagged this rumble in an earlier post so I don’t want to leave you hanging as to the outcome. (Those who aren’t international law nerds can skip four paragraphs down to the line that begins, “But sexy questions of international law aside ..”) 

As you may recall, the Commonwealth government was constitutionally empowered to pass the Sex Discrimination Act — under which Tickle sued Giggle — partly because the legislation was giving effect to CEDAW. In 2013 amendments to the SDA, the Gillard government introduced a prohibition on discrimination on the grounds of “gender identity.” Team Giggle had argued this amendment was beyond the powers of the Commonwealth because it did not implement CEDAW, which, they insist, is only concerned with the rights of women, as in the sort without penises.

Australia’s Sex Discrimination Commissioner, who had intervened in the case as a friend of the court, and who, by her own evidence, ought to be made redundant because “sex” in her assessment means very little, had argued the “gender identity” amendment was giving effect to CEDAW because international law makes it crystal clear “trans women are women,” even if the treaty itself doesn’t define the term “women.” Because, the Commissioner might have added, back in 1979 when the UN General Assembly adopted the treaty, no-one thought the term “women” required definition. 

Justice Bromwich expressed scepticism about the Commissioner’s argument that CEDAW is trans inclusive — small mercies, I guess — but ruled that he did not need to decide the issue in this instance.

If you’re still in suspense about the other constitutional arguments, the judge found the “gender identity” provision in the SDA was, on the other hand, constitutionally valid because it gave effect to another treaty, the International Covenant on Civil and Political Rights (in my inexpert view, his reading of the ICCPR amounted to stretching a piece of chewing gum beyond snapping point) and also fell within the Commonwealth’s power to make laws in relation to trading corporations (a finding on which I have no inexpert view). 

But sexy questions of international law aside, the judgment marks the first time an Australia court has considered “what is a woman?” under domestic law. The moment was always going to be huge, hence the Federal Court live-streamed the event. 

Yet Justice Bromwich appeared to negate any sense of occasion. He read a summary of his decision in a voice without cadence, making no eye contact with courtroom or camera. His published reasons deploy a similarly technocratic tone, as if concerned with a routine interpretation of tax law, punctuated with irritation at both sides for variously sloppy arguments and especially with Team Giggle, criticised — rightly — for “substantially” failing to engage with the real legal issues and facts of the case. 

To be fair, Justice Bromwich’s hands were tied by lousy law, specifically the 2013 changes to the SDA, which, besides introducing “gender identity” as a ground for claiming unlawful discrimination, also abolished the terms “man” and “woman,” replaced references to “the opposite sex” with “a different sex” and otherwise left the term “sex” undefined. 

Still, as others have noted, at no point does Justice Bromwich acknowledge the law was forcing him into absurd intellectual contrivances and contortions that make a mockery of reality. On the contrary, he embraces language and ideas best described as highly contested by those of us who regard sex as a fact and gender as a feeling, and not the other way around as gender ideologues would have it.

To recap: In 2021, Roxanne Tickle gained access to a new female-only app, Giggle for Girls, only to be blocked after its owner, Sall Grover, manually reviewed his — I’m sorry, there’s no other way to meaningfully write this critique — selfie and clocked him as male. She says she did not know the person in the photograph was trans. Tellingly, when Amnesty celebrated Justice Bromwich’s decision on social media it used a stock photo of an attractive woman, giving the misleading impression the image was of Tickle. (Could Amnesty be any more atrocious? The answer, I fear is, yes.) 

At the time he sought access to the app — which, incidentally, included a lesbian dating platform — Tickle had been “living as a woman” for four years having changed his birth certificate to female after undergoing full surgical transition, a requirement of Queensland law at the time. These days Queensland, like several other jurisdictions in Australia and around the world, allows people to change the sex on their birth certificates to reflect their “gender identity” with no requirement for living as the opposite sex or medical intervention of any sort. 

And had Tickle changed his birth certificate under the new “gender self-ID regime,” Justice Bromwich would have taken the same approach he took here and refused to look behind the document. He accepted the Commissioner’s submission that within the law sex is not solely biological or binary, “but rather takes a broader ordinary meaning, informed by its use, including in State and Territory legislation,” and “in its contemporary ordinary meaning, sex is changeable.” The proposition is grounded in “logic” and “long-standing authority,” the latter comprising what Bromwich describes as 30 years of case law since the SDA, for which he cites three examples, none involving access to women’s spaces. 

Melbourne’s “Let Women Speak” rally, March 2023. Photo: Natalie J. Russell

“It is sufficient,” the judge said, “that Ms Tickle is recorded as female on her updated Queensland birth certificate for her to be, at law, of the female sex”. 

Being legally female, it follows that Tickle could not allege he was denied access to the app on the grounds of sex — and nor did he. Instead he claims discrimination on the grounds of “gender identity.” The SDA’s definition of “gender identity” — in case it’s slipped your mind — reads:

“.. the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth”.

It is a circular, nonsensical definition. The mysterious concept of “gender” hovers there, untethered from biology or anything concrete. To the extent the above definition refers to anything at all it’s perhaps to a set of stereotypes we might associate as male or female. 

Justice Bromwich found Tickle’s exclusion from the app amounted to indirect discrimination by imposing a condition that disadvantaged Tickle “relative to another person or persons who have a different gender identity.” That condition was visual criteria — the selfie — that required Tickle to have the appearance of a “cisgender woman.” The criteria, the judge said, “failed to distinguish between cisgender men and transgender women.” (Translation: the visual criteria failed to distinguish between men and men.)

And it is here that I start to seriously lose the thread — of the judicial reasoning, if not of my sanity. The judge found the criteria for accessing the app disadvantaged Tickle, a trans woman, relative to people with a different gender identity, namely “cisgender” women, meaning women who aren’t trans. 

An aside: “cisgender” is an obscure term for those unschooled in gender studies or queer theory. We might want to reflect on the implications of including such a term in a Federal Court judgment, what it says about the health of our democracy, whether it’s evidence of a growing rift between the intelligentsia and ordinary Australians. 

How might we explain “cisgender” to the newly arrived Afghani?

Justice Bromwich explains that the term “cisgender” comes from Tickle’s pleadings but does not appear in the SDA. He defines “cisgender” as referring to “a person whose gender corresponds to the sex registered for them at birth,” in contrast to a transgender person “whose gender does not correspond with their sex as registered at birth.”

This definition of “cisgender” reads as a fudge because it implies that “gender” here refers to something objective. By contrast, the Australian Human Rights Commission’s glossary of inclusive language defines “cisgender” as “people who identify (my emphasis) their gender in the same way as was legally assigned to them at birth.”

Now, a central tenet of gender identity ideology is that “gender,” being deeply internal and individual, is therefore unverifiable and unimpeachable.

So if “gender” is a deeply held internal and individual feeling, if we are all, according to the orthodoxy, “experts” in our own gender, a mere photograph cannot possibly reveal whether a person identifies with their birth sex or not. In this entirely subjective frame of reference what is a “cis,” let alone a “trans,” person supposed to look like? 

And yet the judge describes Grover’s actions in this way: “Ms Grover considered Ms Tickle had the appearance of a cisgender man.” Putting aside what I’ve just said about “the appearance of a cisgender man” being a contradiction in terms within the paradigm of gender identity ideology, Justice Bromwich’s assertion that Grover perceived Tickle to be a “cisgender” man is demonstrably false. As the judge himself noted, Grover does not accept “the legitimacy” of the terms cisgender and transgender and denies “any allegation of fact that describes Ms Tickle as a woman or any other allegation which directly or indirectly entails acceptance that this is so.”

Grover thought Tickle looked like “a man.” She would not have thought Tickle looked like a “cisgender” man because she does not believe in gender identity, only in biological sex. 

Sadly, we also find woven through the judgment instances of transactivist propaganda and hyperbole. These appear in intimations that gender critical feminists, women who resist gender identity ideology, aren’t realists — they’re radicals.

The judge describes Helen Joyce, a veteran journalist, author of Trans: When Ideology Meets Reality and director of advocacy at the organisation Sex Matters, who submitted a report on behalf of Team Giggle — a report he did not accept as expert evidence — as “strongly ideologically committed to the idea that transgender women do not exist, and that language should not be used.” The Joyces of this world are the ideological ones, apparently. 

As for the assertion that Joyce denies trans women “exist,” it’s one straight out of the transactivist playbook, adjacent to the claim that gender critical feminists are gunning for a “trans genocide.” What does this statement even mean? That Joyce denies the existence of males who feel an intense need to be seen as women? Of course she doesn’t. She’s merely stating the scientific fact that people cannot change sex.

Grover also denies sex can be changed. Justice Bromwich found this reflected her “genuinely held belief,” rather than any malice towards Tickle but added that her belief nonetheless “manifested in the use of language that is unfortunate and unnecessary.” But Grover’s language went no further than describing Tickle as “a man” seeking access to a female-only space. The judge conceded that “what the word ‘woman’ means is deeply contested and there must be scope in which persons can put forward an argument … where it is genuinely held” — why would it not be genuinely held? — but still awarded Tickle $10,000 to compensate for “the hurt of not being treated as a woman.” 

“The purpose of the prohibition on discrimination on the ground of gender identity discrimination is to address this kind of injury, among others,” he found, for reasons that are unclear — at least, I have no memory of the Gillard government convincing the public, after open and rigorous debate, that “misgendering” should be penalised.

Again, in arriving at his decision the judge had little choice but to affirm what the law deems to be true. What makes his judgment an unsettling read is his refusal to acknowledge that the law of the land is in stark conflict with the laws of nature. Grover saw a man because Tickle is male. Justice Bromwich obfuscates this basic reality by indulging in legal, and sociological, fictions. 

Team Giggle is eyeing an appeal. But even if no less than the High Court emphatically rules that men can be women this matter still won’t rest because people with great authority can say black-is-white till they’re blue in the face, it won’t ever be true or accepted as such. 

In the aftermath of Tickle v Giggle, an elegant debate broke out around statutory interpretation of the 2013 amendments to the SDA. Did the Gillard Labor government really know what it was doing when it devised the amendments and introduced the ban on gender identity discrimination? Perhaps it only wanted to ensure trans people had the same protections as anyone else at work and at large, and never meant to usher in a radical new reality wherein males can enjoy rights previously reserved for females.

The question ultimately points to a much larger question about Labor governments across the country. Did they really intend to lead us to the present insanity or did they just sleepwalk into it, bending to transactivist demands that they figured — wrongly — would not impact on anyone else, and now they’re stuck pretending that abolishing sex in law, and society, was their plan all along?

I don’t know how we got from there to here, to a place where women must fight in the courts to exclude men from their spaces and where the once-sober Australian Bureau of Statistics finds itself analysing data on “agenders.”

But I do know that the great Australian Labor Party has become a laughing stock on this issue, and the truly astonishing bit is that I’m not sure it even cares.