Australia’s Sex Discrimination Commissioner has said that breastfeeding protections under federal law can apply to men who identify as women.

At the recent October Senate Estimates, Dr Anna Cody was questioned by Liberal Senator Leah Blyth about section 7AA of the Sex Discrimination Act 1984, which prohibits discrimination on the ground of breastfeeding.

Asked whether those protections would extend to a male who identifies as a woman and induces lactation, Dr Cody answered: “Yes.”

How did legislation intended to protect women come to be interpreted in a way that disregards the biological distinction between men and women?

The Sex Discrimination Act was introduced to address discrimination based on sex, particularly against women. Its pregnancy and breastfeeding provisions recognise experiences and challenges faced by women.

Yet the Commissioner responsible for upholding these protections now argues that breastfeeding protections can also extend to males.

It follows an earlier Senate Estimates exchange in May, when Dr Cody suggested the Act’s pregnancy and potential pregnancy provisions could also apply to men who identify as transgender.

These are the Commissioner’s interpretations, not definitive court rulings. But they reveal serious problems with the current law.

There is also a troubling free speech dimension.

HRLA represents former breastfeeding counsellor Jasmine Sussex, who is facing vilification proceedings after publicly disputing claims by a man who claimed to be able to breastfeed.

In September, Jasmine secured an important procedural victory when a tribunal overturned a decision preventing her from seeking evidence relevant to the complainant’s claimed induced lactation. Jasmine’s substantive case remains ongoing.

It is deeply concerning that a woman can face legal proceedings for questioning claims about male breastfeeding while the nation’s Sex Discrimination Commissioner insists breastfeeding protections can cover males.

Respect for individuals does not require the law to disregard reality or prevent Australians from expressing honestly held views about sex and medical evidence.

Women and girls deserve legal protections that recognise their distinct experiences. Australians also deserve the freedom to discuss those distinctions without fear of being dragged through years of litigation.

The Sex Discrimination Act needs reform to protect both women’s sex-based rights and freedom of speech.