Senate Legal and Constitutional Affairs Legislation Committee [Part 2], , 1:24:09 to 1:34:55
The committee debates the inclusion of induced lactation in discrimination reports and the medical evidence used for these findings.
Topics: Human rights, Law reform
Speakers: Speaker 11, Dr Anna Cody, Senator Jana Stewart, Senator Mehreen Faruqi, Unknown Speaker, Senator The Hon Michaelia Cash
>> Thank you very much chair. And I might stay on on that report um if I may. Um Dr. Cody, at at the last estimates hearing, you argued that a biological male who identifies as a woman could potentially experience discrimination on the grounds of pregnancy or potential pregnancy. Do you still stand by that position?
>> I refer to my previous answer, Senator.
>> I'll take that as yes. So, you can answer the questions that we ask. You are required to answer questions if you have that information available to you. So, that was a different question to last time. I'm just asking if you stand
>> My hearing of that of that question was it was the same question that I had already been asked at the last Senate estimate.
>> It is and I'm asking if you still stand by that. I
>> I refer to my previous answer. Correct.
>> Will your previous answer Okay. It's easier if you say yes or no. Um, do you believe that protection specifically intended for pregnancy and breastfeeding should apply to biological males who have never been pregnant and cannot
>> Senator, can you clarify who you're referring to when you're referring to biological males?
>> I'm referring to biological males.
So men cannot be subject to or cannot be protected by the pregnancy discrimination provisions.
>> Okay. What about men who identify as women? They're still biologically men.
>> So can I clarify that you're referring to trans women in that situation
>> if that's the terminology you use?
>> I would refer to my previous answer which we just
>> Sorry. What was your pre So do you believe that that the protections are specifically intended for pregnancy and breastfeeding should apply to biological males. That's the question I don't believe you've been asking.
>> It's a matter of opinion and I'm not a matter of provide a matter of opinion. My role is to give you an answer in relation to what the law says under the sex discrimination.
>> No, it's not. You've refused to answer any of my questions. With all due respect, Commissioner,
>> Senator Cash, Senator BL has the call. We've been pretty good all day at not interjecting over the top of one another. uh we have a short amount of time with each other left and I would ask that we proceed in the same way we have for most of the day and I might even invite a small intake of breath before we respond and ask questions.
>> I'm just going to recclarify this because it's not asking for opinion and and that might be a really easy way for you to try and dodge questions. This is asking for the the application of the Sex Discrimination Act of which you are um in charge of. So, do you as commissioner believe that the protection specifically intended for pregnancy and breastfeeding that they should apply to biological males? Is that how the act works?
>> The act refers to pregnancy and potential pregnancy.
>> Okay. And potential pregnancy.
>> It mean potential.
Um, if we go to page 21 of your new balancing act report, um, you include evidence about people inducing lactation and specifically refer to men who identify as women. Can I ask why the commission included the experiences of biological males inducing lactation in a report exam examining pregnancy and breastfeeding exam um, discrimination?
The report covers the experience of pregnancy discrimination, breastfeeding discrimination, and discrimination on the basis of family responsibilities. And the process for developing that report was hearing from a range of stakeholders including migrant women, First Nations women, and LGBTQI plus communities. And so it includes the experiences of those communities in relation to those three issues. So you
suggesting that induced lactation in a biological male should be treated in the same way as breastfeeding following pregnancy and childirth.
>> It would depend on the circumstances.
>> what circumstances would you say yes or no? So I think
>> I'm not going to speculate on a hypothetical.
>> It's not a hypothetical. So I'll ask you the question again. is by including this in your report are you suggesting that induced lactation in a biological male should be treated in the same way as breastfeeding following pregnancy and childirth.
The uh breastfeeding is widely defined within the sex discrimination act and it includes expressing milk as well as breastfeeding as well as induced lactation.
>> Okay, thank you. um inducing lactation in a biological male can involve hormone treatments and medications that stimulate milk production. Published studies involving uh men who identify as women who do this remain limited and largely consist of individual case reports. Before including this evidence in your report, did you as commissioner obtain independent medical advice about the safety and effectiveness of induced lactation in biological males? I refer
you to the report, Senator. It does not refer to biological men, as you term them, who have induced lactation. The case study is about a woman who induced
lactation, which is a biological man. So that that woman you're describing is a biological man who induced lactation. So let's you might want to try and be cute with words but I will say that did you and the question in this is did you obtain any independent medical advice before including that in your report
>> and I would refer you to those pages 20 to 22 in which one of the case studies is about
>> did you obtain independent medical advice so that's not you're trying to answer things that I'm not asking you I'm asking you if before including this in your report. Did you obtain independent medical advice? It's a yes or no question
except that I don't accept the characterization of what you're saying the report includes.
>> Did you get independent medical advice about the safety and effectiveness of induced lactation?
>> It's not included in the report.
No, I'm asking you if you got independent medical advice. You you've included induced lactation in your report. You say that it's part of the Sex Discrimination Act. I'm asking you if you got independent medical advice.
>> Our process
>> and I will say it is it is you cannot mislead the Senate. This is it's it's a yes or no.
>> Thank you, Senator. The process that I outlined is that we went through a review of research both domestic and international around the experience of those three forms of discrimination as well as having five stakeholder consultations. We did not seek medical advice. Thank
you. That's all I was asking. um the the research that you've spoken about is that easily available that you've relied on in your report or is that something you are able to table?
>> There is a bibliography at the back of the report and I'm very happy to both provide you with a copy of the report as well as a briefing on the recommendations as I offered to senator for
>> I don't need a briefing. I'm just asking so you've just mentioned in the evidence you've just given that you relied on different case studies are they readily available or is that something that you
>> the case studies on which we relied are in the report
>> and the other research so you said you've looked at research
>> academic research academic research
>> if you could pro if you could table that that you've relied on for that induced lactation that would be very helpful um In section 7A of the Sex Discrimination Act specifically refers to discrimination against a woman on the grounds of breastfeeding. The explanatory memorandum um introducing those protections stated they were intended to apply to women who breastfeed. Does the commission interpret section 7A as providing breastfeeding discrimination protections to a biological male who identifies as a woman and induces lactation? Um, your report also includes a stakeholders concern that workplaces do not adequately understand or or accommodate induced lactation. Does the commission believe an employer should be legally required or are they legally required to provide lactation breaks and breastfeeding facilities to a biological male who has medically induced
They are subject to the same protections as anyone who is breastfeeding.
Um, last week the New South Wales Parliament reversed changes to an internal breastfeeding policy. Um, the policy sought to include genderneutral language. The decision was reversed and now makes it clear uh that only women breastfeed babies. Does this policy noting women breastfeed b babies comply with all of your guidelines, recommendations, and practices?
>> I would have to take that on notice, Senator.
What I'll do now is I might go back um to the giggle and tickle unless you are needing. >> No problem. We can share the call.
Sorry, did you have sorry um Senator BL?
>> I have questions for the race discrimination commissioner.
>> Okay. Yeah, we will uh share the call. We'll uh no doubt resume uh questions and I'll go to Senator Faruqi.