Australia’s Radical Experiment in Gender Theory

In a judgment, rendered on August 23, 2024, Justice Robert Bromwich of the Federal Court of Australia decided the case of Tickle v Giggle for Girls Pty Ltd (No 2).[1] The judgement dealt with a discrimination charge brought by transgender Roxanne Tickle, against Sally Grover and her Giggle for Girls social media App.

The complainant, Ms Tickle, relied on sections 5B and 22 of the Sex Discrimination Act 1984 (Cth), which prohibit discrimination on the ground of gender identity. She had been refused access to the Giggle App – a women-only App – on the ground that she appeared to be male. But following reassignment surgery, she was eligible to change her birth certificate under the Births, Deaths and Marriages Registration Act 2003 (Qld). Justice Bromwich decided that Ms Tickle is entitled to a declaration of contravention for indirect identity discrimination. The decision is based on the Justice’s understanding that, under Australian law, “sex is changeable”[2] and that people have a right to transition to another sex and have their new sex and gender identity noted in an updated birth certificate.

The Justice’s legal analysis is superficially plausible but, nevertheless, the judgment is woefully woke. This is because the law, even if it were argued that the Court correctly applied the law, is incompatible with the biological fact that there are two sexes: male and female. There is something profoundly disturbing about a society, and the legal system, which seeks to tamper with a person’s biological status in the name of inclusiveness and, potentially, in the process, cause irreparable harm to that person.

In Queensland, the Labor government of former Premier Annastacia Palaszczuk adopted its version of gender self-identification in 2003. According to section 39(1)-(2) of the Births, Deaths, and Marriages Registration Act (Qld), as amended, a person who is 16 years or older, “may apply to alter the record of sex of the person in the relevant child register” and nominate a sex descriptor. The applicant must include “a statement, verified by statutory declaration, that the person identifies as the sex stated in the application; and lives, or seeks to live, as a person identified by that sex.”

The Queensland sex and gender self-identification laws have now been adopted in most Australian jurisdictions. Most state legislation is based on similar legislation passed by the Victorian Parliament in late August 2019, allowing transgender people to change the sex on their birth certificate without first having to submit to sex reassignment surgery. Thus, under the Victorian legislation, gender identity, rather than biological sex, defines whether a person is male, female, or transgender.

At present, the Births, Deaths and Marriages Registration Amendment (Sex or Gender Changes) Bill 2024 (“WA Bill), having passed the Western Australian Legislative Assembly (Lower House) where the Labor government has an overwhelming majority, is currently considered in the Legislative Council.

The proposed legislation allows a person who is 18 years or older to apply to change the applicant’s sex or gender on their birth certificate if the applicant “believes the person’s sex or gender to be the sex or gender specified in the application,” The Bill does not require prior sex reassignment surgery. Parents or guardians can also apply on behalf of a child who is at least 12 years of age. If the parents or guardians of the child do not support the change the “child may apply to the Family Court for an order approving the change of the child’s sex or gender in the registration of the child’s birth.”

The Hon Nick Goiran MLC, assessing the proposed WA legislation, characterised it as “a blatant and reckless attack on the rights and freedoms of every West Aussie who values biological reality and common sense” and an “ideological power grab, designed to force-feed radical gender theory down the throats of ordinary citizens.”

In allowing children to bypass their parents when seeking to change their sex or gender on their birth certificate, the proposed legislation demolishes the concept of ‘parental authority’. It also endangers women and girls who, potentially, would have to share intimate places, such as women-only change rooms, with a person who has changed their sex on their birth certificate.

The WA Bill disregards the concept of parental rights, which has been a mainstay of Western civilisation. In this context, the Supreme Court of the United States, in Troxell v. Granville[3] confirmed the continuing validity of “the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”  Earlier, in Prince v. Massachusetts,[4]  the Court declared that “it is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”

How then could it be in the best interests of children, who are impressionable and immature to make life-altering decisions which unavoidably will make them patients for life? Of course, some children suffer from gender dysphoria during puberty, but they usually grow out of it when they get older. But the very existence of the proposed WA Bill provides itself an impetus for vulnerable children to make decisions which they may well come to regret later in life and contribute to the alarming rates of suicide among young people.

According to Suicide Prevention Australia, 402 young people, aged between 15 and 24 suicided in 2021,[5] and according to the Australian Institute of Health and Welfare, 304 Australian young people, aged 18 to 24, took their own lives in 2022.[6] Hence, it might well be speculated as to whether this staggering statistic is an indirect consequence of the gender dysphoria confusion among young people. Older readers may recall that gender dysphoria was hardly ever discussed in their youth, and it certainly did not become the endemic problem it is today.

Older readers may recall that gender dysphoria was hardly ever discussed in their youth, and it certainly did not become the endemic problem it is today.

But the ruling Labor party in WA has now enthusiastically embraced the issue of transgender rights. Proponents of trans identity claim that there is a human right to transition to another sex different from their biological sex and that the view that people are born either male or female constitutes an odious example of homophobia.

Gender self-identification and liberal general transitioning practices are absurd ideas which, however, are gaining traction and have the capacity to fatally undermine the irrefutable fact that there are only two biological sexes: male and female. But today, societies around the world are experiencing a gender fluidity epidemic which defies this biological fact. Politicians, and even segments of the medical profession, among others, are confused about sexual identity and are even stumped by the question “what is a woman?”

Ironically enough, the confusion about gender identity and its implication for women’s rights derives precisely from the feminist ideology. Women, especially feminist women, are more likely than men to support transgenderism. Indeed, several studies have found that women who identify as feminists tend to be much more accepting of transgenderism than those who are not.[7]

In fact, the vast majority of women who regard themselves as feminists fully support transgender rights, including gender reassignment for children.[8] For instance, a new British survey recently asked whether transgender women should be allowed to compete in female sports. Overall, women are more likely than men to answer in the affirmative. For young women, the relationship between feminism and support for transgender women is “unequivocally positive”.[9]

In another recent survey of more than 5,000 Americans, the Public Religion Research Institute (PRRI) found that a resounding 81 per cent of self-identified feminist respondents oppose laws that prevent little children from receiving gender reassignment and puberty blocks. [10]  While 1 in 3 Americans say it is never appropriate to teach transgenderism to kids in K-12 schools, only 1 in 10 feminists in the survey agreed.[11] As noted by feminist Kelsy Burke in The Washington Post,

These findings challenge the prominence of those who wrap their opposition to the transgender movement in the language of feminism … Most American feminists are far from trans-exclusionary and have been among the most supportive groups of LGBTQ equality.[12]

Most contemporary feminists, therefore, are enthusiastic supporters of transgenderism. American “women’s rights” organisations such as the National Organization for Women, the Feminist Majority Foundation, and Planned Parenthood unconditionally support and advocate for “trans rights”, as do most Australian and Canadian feminist organisations. These organisations tend to view the struggle for “trans rights” as an integral part of the overall feminist struggle for women’s rights.

‘Given that the transgender movement is championed by established feminist organisations like the National Organization of Women and by leading feminist movements, one could expect to find such favourable attitudes among feminists’, says Michal Biggs, associate professor of sociology at Oxford University.[13]  The former president of the American National Organization for Women (NOW), Terry O’Neill, says that the struggle against “transphobia” is a feminist issue[14], with NOW affirming that ‘trans women are women, trans girls are girls’.[15] We shouldn’t be surprised. According to Burke,

Transgender women and men have long and fully participated in all factions of feminist activism. Despite pockets of resistance to their inclusion within certain groups, transgender activists were the movers and shakers – indeed integral to – even the most iconic feminisms of the 1970s.[16]

The thesis that gender roles are socially constructed is one of the hallmarks of contemporary feminism, which contends that these roles are not influenced by biological differences, but socially conditioned and constructed according to the relations of power and domination in society. Inspired by this rejection of biological reality, feminists claim that ‘true understanding arises not from reason, but from observing relations of power and domination’.[17] Accordingly, ‘so-called knowledge is never more than beliefs constructed to justify existing power relationships, and there is no such thing as objective truth on which to base social structure such as marriage and family’.[18]

The world’s most influential feminist legal theorist, Catherine MacKinnon, professor of law at Michigan University and the long-term visiting professor of law at Harvard University, explains that feminism, ‘having challenged biological determinism as the most basic premise of male supremacy for some time, has yet to change society’s fixation with nature as the basis for gender hierarchy’.[19] In a 2015 interview, she cites Simone de Beauvoir’s famous quotation about “becoming a woman” to argue that ‘anybody who identifies as a woman, wants to be a woman, is going around being a woman, as far as I’m concerned, is a woman’.[20]

Inspired by this postmodernist premise, feminist scholars contend that knowledge is no more than social constructs created to justify existing power relations, and that there is no objective truth on which to base social institutions such as marriage and family.

These comments rest on the fallacious premise that human behaviour (and modes of reasoning) are entirely social constructs. Inspired by this postmodernist premise, feminist scholars contend that knowledge is no more than social constructs created to justify existing power relations, and that there is no objective truth on which to base social institutions such as marriage and family. On this basis, the roles traditionally assigned to men and women are never deemed naturally assigned but always socially determined. Male and female roles, therefore, are deemed arbitrary and indeterminate, and not to be influenced by any form of ‘biological determinism’.

As can be seen, feminism is precisely the sort of ideology that paved the way for the successful emergence of the transgender movement and its deleterious effects on women’s rights, including the rights of little girls (and boys) who are now deeply confused about their gender identity. This is so in great part because feminism has always insisted on the ‘right’ of individuals to transcend all biological differences so as to achieve personal aspirations. In feminist biology, writes American best-seller author and conservative scholar Nancy Pearcey:

… the concept of DNA as the ‘master molecule’ directing the cell’s activities is denounced as a product of masculine bias. The scientific method itself is criticised for incorporating sexist overtones of male dominance and control, which justify the ‘rape of the Earth’.[21]

These ideas generate a form of ‘gender relativism’ that ultimately dismantle all protections beneficial to women while doing nothing to eliminate their disadvantages. In denying the obvious biological differences between men and women, gender self-identification and sex reassignment surgeries are often based on a person’s subjective ‘feelings’, and vague ideas of ‘compassion’ and ‘justice’, thereby undermining the knowledge built up over thousands of years. This sentiment was expressed in Ms Tickle’s statement of facts that “The respondents’ unilateral decision that I am not a woman … has upset me greatly and has resulted in me having to go to great lengths to prove that I am a woman. It has been exhausting and draining to do so.” [22]

Nowadays, any adverse commentary and views expressed on the propriety of gender self-identification and gender-transitioning are dismissed as irrelevant. Of course, the feminist-oriented philosophy of transgenderism is merely one manifestation of the loss of society’s moral compass because legislators around the world are implementing a whole swath of dystopian social engineering laws: abortion on demand; same-sex marriage; assisted suicide; adoption of affirmative action and preferential treatment policies; misinformation and disinformation laws; facial recognition technology; denigration of the role of religion in society; imposition of compulsory critical race studies in schools and universities; among others.

The Tickle v Giggle judgment and the WA Bill are thus merely a further instalment of the long leftist march through the institutions. It is, however, radically changing our society for the worse by bringing about moral confusion and destroying far too many people’s lives. It is troubling that especially young people are likely to be the primary victims of this dystopian social environment. It is no laughing matter.

Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education and served as associate dean at Murdoch University. He is also a former commissioner with the Law Reform Commission of Western Australia.

Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland and served as pro vice-chancellor and dean at Murdoch University. 

Zimmermann & Moens are the authors of The Unlucky Country (Locke Press, 2024).

[1] Tickle v Giggle for Girls Pty Ltd (No 2) [2014] FCA 960.

[2] Ibid at [62].

[3] Troxell v. Granville[3] 530 U.S. 57, 66 (2000).

[4] Prince v. Massachusetts, 321 U.S. 158, 166 (1944).

[5] Suicide Prevention Australia, ‘Stats and Facts’, at https://www.suicidepreventionaust.org/news/statsandfacts#1695788924190-e3526a55-295b.

[6] Australian Institute of Health and Welfare, ‘Suicide & Self-harm monitoring’, at https://www.aihw.gov.au/suicide-self-harm-monitoring/data/populations-age-groups/suicide-among-young-people.

[7] Lisa F. Platt, Spring L. Szoka, ‘Endorsement of Feminist Beliefs, Openness, and Mindful Acceptance as Predictors of Decreased Transphobia’ (2019) 68 (2) Journal of Homosexuality 185-202; Sarah E. Conlin, Richard P. Douglass and Emma H. Moscadini, ‘Predicting Transphobia Among Cisgender Women and Men: The Roles of Feminist Identification and Gender Conformity’ (2021) 25(1) Journal of Gay & Lesbian Mental Health 5-19; Sheila, Brassel and Veanne N. Anderson (2020) ‘How Thinks Outside the Gender Box?’

[8] Kelsy Burke, ‘Feminists have long supported trans rights’, The Washington Post, 27 July 2023, at https://www.washingtonpost.com/made-by-history/2023/07/27/trans-rights-feminism-conservative-women/

[9] Michael Biggs, ‘Feminism and Support for the Transgender Movement in Britain’, American Sociological Association, August 2024, at https://journals.sagepub.com/doi/10.1177/23780231241237662,

[10] ‘The Politics of Gender, Pronouns, and Public Education: Findings from the 2023 Gender and Politics Survey’, Public Religion Research Institute (PRRI), June 2023, at https://www.prri.org/wp-content/uploads/2023/06/PRRI-May-2023-politics-gender.pdf

[11] ‘The Politics of Gender, Pronouns, and Public Education: Findings from the 2023 Gender and Politics Survey’, Public Religion Research Institute (PRRI), June 2023, at https://www.prri.org/wp-content/uploads/2023/06/PRRI-May-2023-politics-gender.pdf

[12] Kelsy Burke, ‘Feminists have long supported trans rights’, The Washington Post, 27 July 2023, at https://www.washingtonpost.com/made-by-history/2023/07/27/trans-rights-feminism-conservative-women/

[13] Michael Biggs, ‘Feminism and Support for the Transgender Movement in Britain’, American Sociological Association, August 2024, at https://journals.sagepub.com/doi/10.1177/23780231241237662.

[14] ‘Why Transphobia is a Feminist Issue’, National Organization for Women, 8 September 2014, at https://now.org/blog/why-transphobia-is-a-feminist-issue/

[15] ‘NOW Celebrates International Transgender Day of Visibility’, National Organization for Women, 31 March 2021, at https://now.org/media-center/press-release/now-celebrates-transgender-day-of-visibility/

[16] Kelsy Burke, ‘Feminists have long supported trans rights’, The Washington Post, 27 July 2023, at https://www.washingtonpost.com/made-by-history/2023/07/27/trans-rights-feminism-conservative-women/

[17] D R Heimbach, ‘Deconstructing the Family’ (2006) 27(1) The Australian Family 8, 16.

[18] Ibid.

[19] Catherine MacKinnon, ‘A Feminism Defense of Transgender Sex Equality Rights’ (2023) 34(2) Yale Journal of Law & Feminism 88, 96.

[20] Cristan Williams, ‘Sex, Gender, and Sexuality: The TransAdvocate Interview of Catherine A. MacKinnon’, The TransAdvocate, 7 April 2022, at https://www.transadvocate.com/sex-gender-and-sexuality-the-transadvocate-interviews-catharine-a-mackinnon_n_15037.htm.

[21] Nancy Pearcey, Total Truth: Liberating Christianity from its Cultural Captivity (Wheaton/IL: Crossway Books, 2004) 113.

[22]  Tickle v Giggle for Girls Pty Ltd Pty Ltd (No 2) [2024] FCA 960 at [224].