Australian Human Rights Commissioner Says Pregnancy Protections Available for Transgenders

Australia’s sex discrimination commissioner has faced questions over whether transgenders can become pregnant and face discrimination during job interviews.

At a recent Senate Estimates hearing, Liberal Senator Michaelia Cash asked Commissioner Anna Cody how pregnancy-related protections under the Sex Discrimination Act apply to transgender women.

In response, Cody told the Senate Legal and Constitutional Affairs Legislation Committee that a transgender can face discrimination in that case.

“If someone who applies for a job for example, and it is a trans woman, and she may be asked whether or not she intends to have children, and if she replies, ‘Yes I do,’ and then doesn’t get the job because that employer doesn’t want to employ women who may be of child bearing age, then she may have been subjected to unlawful discrimination,” the commissioner said.

The hearing involved all the country’s human rights commissioners.

Cash said she was “very confused,” highlighting that “a biological male can’t become pregnant.”

However, Cody responded that the grounds cover both pregnancy and “potential” pregnancy, stressing the focus is on the employer’s conduct.

Cash then asked, “But if they can’t become pregnant, how can you then become ‘potentially’ pregnant?”

Cody replied, “It’s about the unlawful treatment by the employer.

“If someone is treated unfairly on the basis of pregnancy or potential pregnancy, then that is unlawful discrimination on the basis of pregnancy.”

The senator challenged the position, asking whether a biological man can make a such a claim.

“So if a bloke came in, and they said, ‘Are you going to have children?’ Which is the same question really, and he said, ‘Oh yeah, maybe.’ Are you saying he could also claim that ground?” the senator asked.

Cody said it would not apply, to which, the senator said it didn’t make sense.

“A biological man can’t get pregnant, am I correct? Because if I am not, I have got to go back to school.”

In her closing remarks, Senator Cash condemned the “absurdity” of the current laws.

“With all due respect, it is the absurdity of the law yet again, which shows again, the law does need to be changed because for the record, biological men, doesn’t matter what way you cut it, you cannot get pregnant,” she said.

“And quite frankly, it is an insult to women who actually are discriminated … what we are proving today is, the law needs to be changed.”

What Prompted the Debate?

The discussion revolved around the Sex Discrimination Act 1984, which prohibits discrimination on the grounds of sex, pregnancy and potential pregnancy.

In 2013, under the Gillard Labor government, the Act was amended to include gender identity as a protected attribute. The pregnancy provisions themselves pre-date that change.

The hearing comes shortly after the high-profile “Tickle v Giggle” case, in which transgender woman Roxanne Tickle successfully sued Sall Grover, owner of the women-only social media app Giggle for Girls.

Tickle had been blocked from accessing the platform based on her appearance.

In August 2024 the Federal Court ruled the exclusion amounted to indirect discrimination on gender identity grounds and ordered Grover pay Tickle $10,000 (US$7,200) in compensation.

On May 15, 2026, on appeal the full Federal Court upheld the judgment, dismissed Grover’s appeal, upheld Tickle’s cross-appeal on direct discrimination, and increased damages awarded to Tickle to $20,000.

The Australian Human Rights Commission appeared as a friend of the court in the proceedings, to which Senator Cash asked what the cost to taxpayers was.

Cody said she would take the question on notice.

Both One Nation and the Coalition have flagged plans to amend the Sex Discrimination Act.

Federal Shadow Minister for Women Melissa McIntosh said on May 15 that the Coalition would amend the Act to protect the rights of women. Opposition Leader Angus Taylor has also supported this position.

One Nation leader Pauline Hanson has also promised action.

“When parliament returns, One Nation will reintroduce our bill to acknowledge biological reality,” she said on May 19.