Nina Dillon Britton

On 16 April 2025, in a unanimous decision, the UK Supreme Court found that, for the purposes of the Equality Act 2010 (UK), ‘sex’ means one’s biological sex at birth and ‘women’ means only people who were female sex at birth: For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16. The Court rejected the Scottish Ministers’ contention that transgender women with gender recognition certificates were ‘women’ for the purposes of the Equality Act (as well as the corollary, that ‘men’ included transgender men with such certificates). The effects of the Supreme Court’s decision will be deeply felt by transgender people in the UK, and the judgment will no doubt be subject to significant critical analysis.

This blog post concerns the question of whether the ruling in For Women Scotland has relevance in Australia, and particularly whether it might influence Australian courts in interpreting the Sex Discrimination Act 1984 (Cth)—the rough federal equivalent to the Equality Act. The issue is a live one. Last year, the construction of the words ‘woman’ and ‘sex’ were considered in the context of a gender identity discrimination claim brought by a transgender woman against an app marketed as ‘female-only’: Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 (Tickle v Giggle (No 2)). The Federal Court’s conclusion that ‘sex’ (in its ordinary meaning) was changeable, and thus that the complainant’s discrimination claim was successful, is currently under appeal. Similar questions of construction have also been raised in a decision by the Administrative Review Tribunal to uphold a decision by the Australian Human Rights Commission not to grant an exemption to a lesbian group, which sought to hold events that would exclude transgender women: Lesbian Action Group and Australian Human Rights Commission [2025] ARTA 34. That decision is currently the subject of a judicial review application in the Federal Court.

Stephen McDonald SC

Each of the paragraphs of s 75 and s 76 of the Commonwealth Constitution identifies a class of matters with a federal aspect. The scheme of the Constitution is that matters of those kinds can only be determined in the exercise of judicial power by ‘courts’. Section 77 of the Constitution enables the Commonwealth Parliament to determine the extent to which judicial power in such matters is exercised by the High Court, other federal courts, and state courts.

State Parliaments may create tribunals which are not ‘courts’, and may confer upon such tribunals aspects of both the administrative power and the judicial power of the state. However, the power of state Parliaments with respect to state non-court tribunals does not extend to investing them with judicial power to decide matters of the kinds identified in ss 75 and 76 of the Constitution. A general grant of jurisdiction to a non-court tribunal under state law will thus be construed as excluding jurisdiction over matters of those kinds.

These principles were established by the High Court’s decision in Burns v Corbett [2018] HCA 15; 265 CLR 304. Burns v Corbett had involved a claim in a state non-court tribunal between residents of different states – the subject matter identified in s 75(iv). The recent decision of Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 concerned the application of these principles in a different context: it concerned a claim that was said to give rise to the kind of federal matters identified in sub-ss 76(i) and 76(ii) of the Constitution. This post will discuss the decision in Citta Hobart, before turning to the practical problems posed by the substantial limits – confirmed by these two cases – on state legislative power in respect of the jurisdiction of state non-court tribunals.