Peter Dutton has built his leadership around a unifying vision for Australia, positioning himself as the statesman who rejected the divisive rhetoric of the Voice, championed Australia Day, and sought to bring the country together under one identity. In the lead-up to the election, he seeks to balance the male vote he commands with a broader appeal to female voters, but in doing so, he has overlooked the one issue that should be the simplest political win of his career.
His refusal to engage with the legal and political ramifications of Tickle v Giggle is an astonishing miscalculation. It is a test case for whether sex will continue to exist in Australian law, yet instead of leading the fight, Dutton has left it to the courts to decide. And the courts, predictably, have taken the opportunity to rewrite the law in ways Parliament never explicitly approved. The Federal Court has ruled that sex in the Sex Discrimination Act must now accommodate gender identity, undermining decades of legal protections for women and lesbians. This is not just a legal technicality. It is a profound restructuring of Australian anti-discrimination law, one that was carried out not through democratic debate but through judicial activism and both domestic and international bureaucratic overreach.
It is difficult to understand why Dutton refuses to see this as the unifying issue it so obviously is. He is fixated on winning back the Teal seats and expanding his appeal to women, yet he ignores the glaring truth staring him in the face: that women, men, same-sex attracted people, parents, athletes, professionals – most Australians – still recognise the reality of biological sex. There is nothing extreme about saying men and women exist. The vast majority do not believe that male-born individuals should compete in women’s sport, be housed in female prisons, or gain access to rape crisis centres. This is not a culture war issue, nor is it some niche obsession of right-wing conservatives. It is a simple, fundamental legal principle that most people assumed was already settled.
And yet, Dutton’s response to the National Party’s calls to follow Trump’s lead and affirm the reality of biological sex in law was to dismiss it, claiming Australia should be ‘kind and inclusive’. It is hard to imagine a more empty platitude. There is nothing kind about erasing sex-based rights. There is nothing inclusive about forcing women’s organisations to admit male-born individuals under the threat of litigation. There is nothing unifying about abandoning a legal framework that has governed human rights protections for decades in favour of an untested, ideological model imposed by courts and international treaty bodies.
He has already seen what happens when the right abandons an issue out of fear. The rise of the Teals was the direct consequence of a Liberal Party too timid to engage with social and cultural issues. The Coalition’s 2022 loss had nothing to do with Katherine Deves’ campaign for sex-based rights in sport – it was the result of public fatigue with a government that had overstayed its welcome. If anything, Deves has proven that the supposed controversy of this issue is a media-driven fiction.
Sky News Australia’s Peta Credlin and Andrew Clennell recently clashed over whether Dutton is struggling to win over female voters, with Clennell arguing that he needs more women-friendly policies and Credlin dismissing the idea that women vote based on gendered incentives rather than broad leadership and national interest. Credlin was right: women, like men, vote on fundamental issues, not targeted handouts or empty virtue signals. If Dutton truly wants to win over female voters, why not start by standing for the legal reality of women themselves?
Instead, he chooses silence. Tickle v Giggle should have been the wake-up call that forced him to act. The Federal Court’s ruling was an extraordinary expansion of Commonwealth power, using the external affairs power to justify gender identity protections that were never part of Australia’s treaty obligations. The court pointed to Article 26 of the ICCPR, despite the fact that gender identity is not mentioned anywhere in the treaty. Instead, it relied on non-binding opinions from the United Nations Human Rights Committee (UNHRC) – opinions that have never been debated, ratified, or even publicly scrutinised by Parliament.
This ruling establishes a dangerous precedent, allowing international bureaucrats to dictate Australian domestic policy without a single vote cast. It is hard to think of a more blatant violation of democratic principles, yet the leader of the Opposition – who prides himself on protecting Australian sovereignty – has nothing to say about it.
Worse still, the corporation’s power was contorted beyond recognition to justify bringing Giggle for Girls Pty Ltd under federal anti-discrimination law. The court ruled that Giggle was a trading corporation, despite the fact that it was not a profitable entity, did not function as a business, and had no obligation to return a profit. Its CEO – that is, me – had at some point expressed under cross-examination a vague intention for Giggle’s holding company to one day repay investors who had contributed to developing the app. That was enough for the court to pierce the corporate veil and declare Giggle a trading entity.
This ruling has devastating implications. If Giggle is a trading corporation, then so is every women’s advocacy group, every lesbian organisation, every men’s shed, every sex-based space that so much as runs a meat raffle or charges a membership fee to cover the cost of the community hall hire. The ability for women to organise politically, socially, and legally in their own interests is now under threat.
Dutton’s refusal to engage with this issue is not just a failure of leadership – it is a fundamental misunderstanding of his own political interests. He wants to unite Australians under one legal and social framework, yet he ignores the issue that does precisely that. He is desperate to win back female voters, yet he refuses to defend the legal category of ‘female’ itself. He has built his reputation as a pragmatic, decisive leader, yet when faced with the simplest political win of his career, he has chosen to do nothing.
This is not a ‘controversial’ issue outside of elite political and media circles. It is not a niche concern. It is not a culture war distraction. It is a fundamental legal and constitutional question. If Dutton wanted to redefine his leadership, he would state his intention to introduce legislation tomorrow to restore the definition of sex in the SDA to its biological meaning. He would push back against the misuse of the external affairs power, ensuring that international treaty obligations cannot be twisted into ideological tools. He would ensure that female-only spaces are explicitly protected in law, so that businesses and advocacy groups can maintain sex-based policies without fear of litigation.
Instead, he chooses strategic silence, convinced that avoiding the issue will insulate him from political risk. But the legal precedent is being set, and the longer he waits, the harder it will be to undo. The voters he needs to win back do not want timidity. They want a leader who will stand for reality, not retreat into vague platitudes about kindness and inclusivity.
Dutton has a choice. He can stand for the rights of women, lesbians, and same-sex attracted people, or he can watch as those rights are dismantled by the courts, with barely a whisper of political opposition. If he does the latter, he may soon find that the voters who once supported him have, like sex-based rights, disappeared too.
Sall Grover, CEO of Giggle for Girls, has launched an appeal against the decision in Tickle v Giggle for Girls Pty Ltd (No 2)[2024] FCA 960, challenging the Federal Court’s ruling that redefined sex in law. Her legal defence is being supported through crowdfunding at gigglecrowdfund.com.
