How our first female PM cancelled women
Cover by Sarah Dudley, illustration by Ben Davis
22 October 2022
It is a terrible shame the chief legacy of our first female prime minister seems to be her so-called ‘misogyny speech’ – the sentiment of which certainly resounds with most women. But properly understood, Julia Gillard’s opposition to the then leader of the opposition’s censure motion was inappropriate. The subject matter of the motion, concerning allegations of serious parliamentary workplace sexual harassment by then House Speaker, Peter Slipper, who compared female genitalia to ‘shell-lessmussels’, was before the court. You would be forgiven for thinking our then female prime minister, a trained lawyer, would respect the gravity of the allegations, both legally and as a matter of public policy, and decline to comment.
The misogyny speech is not the only legacy of the Gillard’s government overreach. In the dying days of her government, legislation amending the Sex Discrimination Act 1984, the marquee act to eliminate discrimination against women in public life, was introduced and enacted. Largely unnoticed at the time, without critique or challenge, in the wake of the failed omnibus Human Rights and Anti-Discrimination Bill 2012, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 passed. It was the Gillard government’s death rattle solution to assuage the demands of those in thrall to queer and gender theory activism, who scheme to denude law and policy of biological sex in favour of a self-declared gender identity.
‘This type of hypocrisy should not be tolerated,’ said Gillard, in her celebrated misogyny speech. But in the ultimate betrayal of Australian women and girls, she oversaw the erasure of the definition of ‘woman’ and with it, women, and girls, as a legal category worthy of protection. The definition of a ‘woman’ meaning ‘a member of the female sex irrespective of age’ was repealed to instead accommodate the demands of men who want to be women. The SDA now makes it unlawful to discriminate against a person not only because of their sex, but also their gender identity, intersex status or sexual orientation. The effect on women’s sex-based rights in Australia has been profound.
Women’s rights can only exist upon a recognition that we are biological females. The Gillard amendments imposed the biggest game of wilful pretend imaginable on women and girls, now forced to suspend their reality and believe that a ‘penis-owner’ is a woman, because he says so. This would be laughable if it was not so serious. On ABC radio recently, Gillard asked ‘why aren’t we further along?’ with respect to gender equality. She blames the vile sewer of social media and women’s difficult balancing act of work and family life. No mention at all of the alarming and increasing impact of her government’s amendments to the SDA.
Hardly surprising, as the burden being placed on women by these fundamental changes had not a single mention in the committee reports and parliamentary debates at the time. The public has largely been denied fair and impartial reporting on this issue by mainstream media, mainly led by the ABC, with those raising concerns silenced, dismissed or subjected to opprobrium.
The SDA was enacted to implement the UN Convention for the Elimination of all Forms of Discrimination Against Women which Australia ratified in1983. Most countries have now done so, excluding USA, Iran, Somalia, Sudan and the Holy See. Debate at the time was robust, but the importance of the convention in the contemplation of the legislature was such that it was included in its entirety in the schedule of the Act.
Commonwealth legislation has constitutionally validity if it gives effect to one of the heads of purposive power outlined exhaustively in Section 51. The SDA relies on the ‘external affairs’ power in placitum (xxix), which exists for the purpose of implementing Australia’s international obligations. The SDA gives effect to CEDAW and other international instruments specified in the Act. The government of the time identified the external affairs power as the only one that could support all aspects of the SDA.
To be constitutionally valid, the Gillard amendments needed to implement an international obligation or secure a benefit under a treaty. The amendments are arguably constitutionally invalid because neither CEDAW, nor the other instruments, make any mention, either explicitly or impliedly, of gender identity, sexual orientation, or intersex. There is no separate international human rights agreement that deals specifically with sexual orientation or gender identity. Critics of this argument say that the amendments give effect to Articles 2 and 26 of the International Covenant on Civil and Political Rights, which require all persons be treated equally and not subjected to discrimination on the basis of status. It is doubtful that the amendments to the SDA could be validly enacted pursuant to the external affairs power by reference to just two Articles of the ICCPR. While legislation may implement a part of a Convention, and that implementation does not have to be entirely consistent with it, international law recognises that human rights are not only universal and indivisible, but also interdependent and interrelated. In other words, the legislature cannot isolate provisions that suit its legislative agenda without embracing the whole.
The Gillard amendments stripped the legal definitions of ‘man’ and ‘woman’ from the SDA. According to the Senate inquiry at the time, the justification for that was to ensure a ‘transwoman’ (biological male self-declaring a ‘trans’ identity) would not be excluded from protections specifically provided for females under the Act. The consequence being that males, upon self-declaration of a ‘trans’ gender identity, usually determined on the basis of regressive, subjective and frivolous stereotypes, now have unfettered access to female-only spaces, services and resources, for to exclude them from these spaces, services and resources would be discrimination under the SDA.
It is an understatement to say that the impact the Gillard amendments have had on the lives of women and girls is profound: we no longer have the right to keep men and boys out of our spaces where we are most vulnerable. Gillard was correct: sexism should be called out when it happens. Yet we are told we cannot say these things, lest we be labelled ‘bigots’ and ‘transphobes’.
Those who applaud Gillard as an icon for women are ignorant of or wilfully blind to this point. Her government oversaw the purloining, misappropriation and denuding of a woman’s ability to define herself. By enabling males to self-identify into our legal category, all the gains fought for by our foremothers over centuries are rendered nugatory. Women have been again relegated to the thoughts and feelings in a man’s head – the ultimate act of misogyny.
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