The Federal Court has moved Australian discrimination law one step closer to acknowledging biological sex.

At the centre of the case is the Lesbian Action Group (LAG), whose application for a five-year exemption under the Sex Discrimination Act 1984 (SDA) was denied by the Australian Human Rights Commission (AHRC). The exemption would have allowed the group to exclude men who identify as women from participating in social events.

The Administrative Review Tribunal upheld the AHRC’s decision, so the LAG appealed to the Federal Court, which found the Tribunal had erred on two grounds.

The first error goes to the heart of how discrimination law should work. The SDA’s object is not, as Justice Moshinsky put it, to eliminate discrimination “at all costs”. Parliament built exemptions into the law precisely because competing interests sometimes deserve protection. The Court made clear that those exemptions are not limited to cases of “positive discrimination,” but extend to any situation where other legitimate interests are at stake.

The second error cut deeper. The Tribunal had treated the human rights principles in the AHRC Act, including the indivisibility and universality of human rights, as though they were merely aspirational. The Court disagreed, finding they carry real legal weight.

The legal principle here matters for all Australians. For years, the Commission has read the SDA in a way that elevates gender identity above sex-based rights, religious conviction, and freedom of association. The Federal Court has moved against that reading, and its decision has consequences that extend well beyond this case. These issues matter to groups like LAG and others who want a space for women to meet without having to allow men. And they matter to HRLA, which defends the rights of Christians to live in accordance with a Biblical understanding of sex and human identity.

This case is not over. As Associate Professor Neil Foster observes, the Court did not resolve whether “sex” in the SDA means biological sex. That question remains live in the pending Giggle v Tickle appeal before the Full Court.

The answers to these questions matter enormously. HRLA is representing Jasmine Sussex, who is defending a vilification complaint for raising concerns about male breastfeeding, and Binary Australia’s Kirralie Smith has been ordered to pay $95,000 for publicly questioning a male playing in women’s football. These are not isolated incidents. They are the predictable consequence of a legal and political framework that has, for too long, elevated “gender identity” over the biological reality of male and female.

The law must acknowledge the reality of biological sex and uphold the fundamental freedoms of speech, association, and religion.