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

Liberal Senator Michaelia Cash asked Dr Cody how pregnancy-related protections under the Sex Discrimination Act apply to biological men.

TRANSGENDER

In response, she told the Senate Legal & 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 included all of Australia’s human rights commissioners.

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

Dr Cody, however, 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?”

Dr 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 the employer asks ‘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.

“It doesn’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 can not get pregnant,” she said.

“And quite frankly, it is an insult to women who have actually been discriminated against. What we are proving today is that the law needs to be changed.”