Well, knock me down with a feather! The ABC finally published an article that is pro-women and pro-Sall Grover.

After refusing to publish Sall’s more than reasonable op-ed recently, the ABC gave in and published an article by Neil Foster, Associate Professor of Law in the School of Law and Justice at the University of Newcastle.

He wrote the article in response to an opinion piece by Paula Gerber, who celebrated men being recognised as women in law. Foster writes:

In her recent article, Paula Gerber argued the decision of the Federal Court of Australia in Giggle for Girls Pty Ltd v Tickle was “good for trans rights and women’s rights”. With respect, I disagree and would like to explain why.

I believe the decision is bad for women’s rights – especially the rights of women to enjoy single-sex spaces and activities – and may also be bad for the rights of those from religious groups to control their spaces and activities in accordance with their faith commitments. I suspect the decision may also be bad for “trans rights” in the long term.

Foster explains why the legalities of the case and the judgements so far are, in his opinion, wrong. He expects the High Court to accept the appeal and find in favour of Sall Grover.

There are, in my view, a number of good reasons why the appeal should be granted special leave and be successful. One set of reasons relates to the implications of the decision, the importance of the principles which the appeal decision purports to establish, and their detrimental effect on women’s rights and religious freedom. I believe these establish that the case is certainly important enough for it to receive full and careful consideration by the High Court. The second set of reasons are simply that the appeal decision, like the trial decision, gets the law wrong and should be corrected.

The practical implications of the decision are reasonably clear and deeply concerning. The comments of the majority of the Federal Court suggest that “sex” in the SDA can extend to “self-identification”. While Roxanne Tickle has undergone medical procedures, the joint judgement suggests that, in a future case, even this might not be necessary. Hence any place or activity that is meant to be provided for “women” will have to be open to biological males identifying as such. Otherwise, those responsible risk being sued for “gender identity” discrimination.

While on the facts of this case the service was use of a social media app, nothing that is said here would exclude this principle being applied to a women’s refuge for rape survivors, a women’s sporting team, a lesbian networking event aimed at biological women or a women’s prison. The examples offered are not fictional; they represent actual situations and legal cases experienced over the last few years in Australia and elsewhere.

Foster explains that the appeal judges got it wrong and that Grover’s app, Giggle for Girls, should have been exempt under the special measures in the Sex Discrimination Act that allow for excluding males in some female-only spaces or services.

He believes the judges have acted in opposition to what the parliament intended when they wrote in the special measures.

He also highlights the absurdity of sex not being clearly defined or understood in the Sex Discrimination Act.

The other major issue that I believe the majority of the Federal Court gets wrong is the fundamental question of the meaning of this word “sex”, which one would think would be clear in a piece of legislation called the “Sex Discrimination Act.”

At this point those who have been following these debates internationally would have expected some discussion of the 2025 decision of the UK Supreme Court in For Women Scotland Ltd v The Scottish Ministers (FWS). I have argued elsewhere why I believe this was a much better analysis of the question of the meaning of “sex” in discrimination law than that provided by the trial judge in Tickle v Giggle. In particular, the FWS decision held that “sex” in the UK discrimination law meant “biological sex” and offered detailed and persuasive reasons to support that view.

The university professor notes what is at risk if leave to appeal in the High Court is not granted.

The rights of women generally to single-sex spaces and services are put at risk if the decision stands.

Faith groups will also be concerned about this decision. This issue is one that most religious traditions regard as crucial – namely, that there is a difference between men and women, and this difference can matter in some important contexts.

Perhaps counter-intuitively, I would also suggest that the cause of “trans rights” is not assisted by the appeal decision. Those who identify as the opposite sex to that of their birth should not be subject to discrimination on irrelevant grounds; they should not be excluded from cafés or banks or jobs where sex should be irrelevant. But to deny that sex is relevant where women enjoy hard-won single-sex spaces or services, may bring the whole area of “trans rights” into disrepute.

In any event, I believe women’s rights and rights of religious freedom are under threat if the appeal decision in Giggle v Tickle stands. Hopefully the appeal to the High Court will restore clarity about how the SDA applies to these important issues.

All I can say is thank you Neil Foster and the ABC for finally printing a reasonable argument that most Australians would find acceptable.