A federal judge in Australia has set aside an earlier ruling that was preventing the anti-trans group Lesbian Action Group (LAG) from discriminating against trans and bisexual women. While LAG has been claiming the decision a “definite win,” the ruling turned on technicalities and was not a decision on the case’s merits. It will now be returned to an earlier tribunal for reevaluation.

“The court has not endorsed discrimination against trans women, and it has not decided whether the exemption should be granted,” said Heather Corkhill, the legal director of Equality Australia. “It has simply identified legal errors in the tribunal’s reasoning, so the matter must now be reconsidered.”

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The case started back in 2023, when the Lesbian Action Group requested a five-year exemption from the Sex Discrimination Act to be able to exclude trans and bisexual women from its events. LAG was incorporated as an association only after the original filing, and its articles of incorporation note that it is a political advocacy group with one of its missions being to assert the “biological fact that sex is binary and immutable.”

They are also supported by the Australian arm of the anti-trans organization LGB Alliance. The organization hosts events for lesbians, and in their flyers about the case, they say those events are for “lesbians born female only” and refer to trans women as “males who identify as women.”

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In October of that year, the Australian Human Rights Commission (AHRC) rejected LAG’s request for an exemption, saying, “The Commission is not persuaded it is appropriate and reasonable to make distinctions between women based on their biological sex at birth or transgender experience, and to exclude transgender lesbians, from a community event of this kind.”

LAG then appealed the decision to the administrative review tribunal, hoping to overturn it. During that case, LAG’s counsel, Leigh Howard, told the tribunal that they were “seeking to discriminate,” and, on behalf of his clients, “we’re female, and we’d like some rights, please.”

They went on to cite a past exemption granted to a Melbourne gay bar that won the right to exclude heterosexual people from the venue. However, an AHRC lawyer pointed out that in that case, the exemption was to help a marginalized group to achieve equality, whereas LAG was attempting to discriminate against a more marginalized group.

In January 2025, the tribunal ruled that excluding trans and bisexual women from LAG events would constitute unlawful discrimination and once again denied the exemption. From there, LAG appealed to the federal court.

This week, Justice Mark Moshinsky ruled that the tribunal’s decision must be set aside, and now the review board must review the case again with additional considerations. Moshinsky’s interpretation was that the SDA could potentially allow exemptions because he felt that “properly construed, the word ‘sex’ in the SDA means biological sex. Accordingly, and in any event, the SDA gives priority to members of the female sex (including lesbians). The Tribunal erred in not approaching the exercise of the discretion in [this case] in this way.”

Additionally, Moshinsky said that the tribunal has “too narrow a view of the scope of the exemption power.” In doing so, he suggested that the tribunal dismissed the idea of an exemption as feasible because it would go against the main purpose of the SDA, and that, while exemptions may be allowed in the case of “positive discrimination,” the tribunal has the power to allow exemptions outside that remit.

Corkhill highlighted that this was only “a technical win for LAG on two points of legal process. It is not a ruling on whether excluding trans women is lawful or justified.” She added, “Importantly, the substantive questions about trans rights were not decided in this case.”

Australia has a landmark ruling in a federal case, Tickle v. Giggle, declaring that trans women are women. While that case might simplify the LAG case, Moshinsky noted that the Tickle v. Giggle case was currently under appeal and therefore he did not take it into account.

Many voices have come out in support of the trans community over the Australian case, with many highlighting concerns that this attack on trans rights will erode wider LGBTQ+ rights down the line.

Back in 2023, when LAG first applied for the exemption from the AHRC, Equality Australia and a coalition of LGBTQ+ groups came together to reject the “divisive politics” behind it. “Our community has come out in full force to reject this sad stunt,” said Equality Australia CEO Anna Brown. “Discrimination laws exist to protect all of us, particularly groups that have experienced historical discrimination and marginalization because of their race, disability, sexual orientation, or gender.”

This week, the CEO of Transgender Victoria, Dr. Son Vivienne, said, “Throwing any one of our minority groups under a bus drags everyone else under it with them. It’s not hard to understand that trans women are women and some trans women are lesbians. Gender has changed throughout time and will continue to change—and lesbians themselves have been discriminated against because of their gender expression throughout history.”

One trans Sydney woman, May May, spoke to the Sydney Morning Herald, pushed against the idea that LAG’s views were representative of wider feelings or that there were any trans women really trying to participate in their events, saying she was “doubtful that any trans women engage in that space at all.”

She went on, “I think this group is mostly an outlier within the queer community. If you love women, there will be trans women you love, and there will be cis women you love.”

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