I should say at the outset that I’m not a big fan of our judicial system. I regard it to be failing abysmally in its core roles and to be self-serving. There is room for improvement, lots of room for improvement. That said, the anger being directed at our judiciary after our Federal Court handed down its decision on this Giggle v Tickle case, is misplaced.
The role of our judiciary is to resolve disputes by interpreting the law – the common law or legislation, whichever applies. This case required consideration of the Sex Discrimination Act (1984). That Act was changed in 2013 by the Gillard Labour Government and other supporters to include in a gender those who identify as being of such gender. Hence, a biological man who identifies as a woman is regarded as a woman under the Act. Our judiciary did not enact that change, parliament did, and our courts are compelled to adhere to written words of the legislation and where those are ambiguous, to the intent of the legislature.
The summary judgement released by the Federal Court stated that there is a “long history of cases decided by courts going back over 30 years … (that) establish that, on its ordinary meaning, sex is changeable” and went on to recognise the “the clear Parliamentary intention to prohibit discrimination on the ground of gender identity … that took effect over a decade ago, in 2013.”
Given the clear wording used and the clear intention of parliament, the Federal Court had to adhere to it. It does not have the authority to ignore legislation.
So, the cause of the problem is not our judicial system or our Federal Court or any judge, it is the Gillard Labour Government and other members of parliament who supported the change to the Sex Discrimination Act in 2013 to include in a gender those who identify as being of that gender.
It would also be unfair to direct anger towards Julia Gillard and the other MPs who supported the change – because they were probably responding to public demand for laws that make it illegal to discriminate against transgender people and those transitioning genders.
While (Classic Liberals Australia would like to believe) the overwhelming majority of us Australians do not want transgender people or those transitioning genders discriminated against, we need to be far more careful about the unintended consequences of legislation. Feel good legislation is not necessarily good legislation.
A Classic Liberals Australia (Classic Liberals Australia) government will do its best to persuade us, Australians, to be tolerant, accepting and respectful, but will repeal all anti-discrimination legislation. If you want to establish a group, no matter how you define it and no matter who you are willing to accept or reject, you should have the right under law to do so. Society may criticise and ridicule you for it, but the law should not prevent you from doing it. If you want to establish a group only for biological women, you should have a right to do so. Similarly, if you want to establish a business that only employs pretty, young, blond women in sales and customer service, you should have the right to do so. Government should not have the right to tell you who you can and cannot associate with or who you can and cannot employ.
While I said that the problem in this case is the legislation, and the cause of it the Gillard Labour Government and its supporters, this case does raise a question worth considering. That is, whether our courts should have the power to reject legislation that, for example, deprives a group of their fundamental human rights? If our government of the day passes a law that persecutes a minority group, do we want our judiciary to uphold that law or declare it null and void? In answering that, it is worth recognizing that every dictator, fascist regime and totalitarian government in history was supported by a compliant judiciary. Classic Liberals Australia would prefer a judiciary that in effect says to parliament – sorry, you can’t do that.
Our fundamental human rights, our individual liberties, should be protected. No government of the day should have the power to deprive us, or some of us, of them.