JENI O’DOWD: Sex protection for ‘breastfeeding’ biological males shows we’ve lost the plot

If you ask any new mum who has gone back to work while still breastfeeding, she’ll tell you how glamorous it is.

I’ve had friends expressing milk in tiny rooms, a pump balanced on one knee, while someone rattles the door handle. Or slipping out of a meeting because their body runs on its own timetable, quarterly figures or not.

That’s who Section 7AA of the Sex Discrimination Act was written for. Parliament added it in 2011 so women feeding their babies couldn’t be sidelined, sacked or shamed for it.

So it was quite something to watch Australia’s sex discrimination commissioner, Dr Anna Cody, tell Senate estimates late last month that those same protections extend to biological males who identify as women and take medication to induce lactation.

Liberal Senator Leah Blyth asked her directly whether the commission read Section 7AA as covering “a biological male who identifies as a woman and induces lactation”.

Cody’s answer was two words. “Yes, Senator.”

Asked whether that person should get the same lactation breaks and facilities as a breastfeeding mother, she said they were subject to the same protections as anyone who is breastfeeding.

No hesitation, no caveat, no acknowledgement that most Australians might find this a stretch. Just yes.

The medical evidence is remarkably thin, with only a handful of published cases of biological men breastfeeding anywhere in the world.

In the first, in 2018, the baby was fed solely on that milk for six weeks before formula was added. In another, the patient gave up after two weeks.

Australia’s own guidelines recommend exclusive breastfeeding to about six months.

Cody admitted the Australian Human Rights Commission didn’t even seek medical advice before deciding biological males who induce lactation were covered.

Then a United Nations expert weighed in, and the UN is not exactly a hotbed of conservatism.

Reem Alsalem, the UN Special Rapporteur on violence against women and girls, posted that Cody’s reasoning was flawed because she treats biological sex and gender identity as if they’re the same thing.

When a UN women’s rights envoy publicly tells Australia’s own sex discrimination watchdog she’s got it wrong, you’d hope someone in Canberra would sit up.

And this isn’t the first time these two have crossed paths. An email obtained by The Australian under FOI showed Cody had asked the commission’s chief executive whether there were “any levers to pull” to stop Alsalem being reappointed.

Her crime? Arguing that womanhood can’t be separated from biological sex.

Cody’s bid went nowhere. Alsalem is still in the job, and said she was “disappointed but not surprised”.

So we have a sex discrimination commissioner who tried to get rid of a UN expert on women, and is now being corrected by her. I’d call that a credibility problem.

It’s not a one-off, either. Cody has previously been pressed by Liberal Senator Michaelia Cash over whether pregnancy discrimination protections could cover a trans woman if an employer assumed she might become pregnant.

At some point you have to ask who the commissioner thinks she is there to represent.

Now, to be fair, Cody can point to the law. Gender identity has been protected under the Act since 2013, and the courts have been reading the word “woman” broadly. In May, the Federal Court dismissed Sall Grover’s appeal in the Giggle case and doubled the damages. The commission welcomed the ruling.

But that’s exactly my point. If the law now says any person who takes hormones to lactate is a breastfeeding woman, then the law has wandered a very long way from the mothers it was written for.

And nobody asked them. There was no public debate. No vote on this. Just a slow redefinition through tribunals, court judgments and commission interpretations, until a senator asks a plain question and gets a plain answer that would have been unthinkable 15 years ago.

This is what I mean when I say Australia has lost its way here. Not that trans people shouldn’t be protected at work. Of course they should. Nobody should be harassed or sacked for who they are.

But it has somehow become controversial to say that breastfeeding is something women’s bodies do after giving birth.

The answer isn’t to keep asking the commissioner to read the law differently. She’s told us very clearly how she reads it.

The answer is for Parliament to fix it. If the Sex Discrimination Act can no longer tell the difference between a mother and a biological male on medication, then it’s the Act that needs changing.

Meanwhile, plenty of Australian women are still expressing milk in a toilet cubicle, asking for a room with a lock and a chair.

Maybe the commissioner could start there.