The push to define ‘Woman’ in the Sex Discrimination Act is a solution in search of a problem

In 1984, Australia proudly enacted the Sex Discrimination Act (SDA) to give effect to our international obligations as a signatory to the Convention on the Elimination of All Forms of Discrimination Against Women. The SDA is part of a suite of anti-discrimination legislation enacted to give effect to our international obligations, including the Race Discrimination Act 1975, the Disability Discrimination Act 1994 and the Age Discrimination Act 2004.

Having four different pieces of legislation addressing different types of discrimination is both complex and inefficient, in that it fails to recognise the intersectional nature of discrimination. If a woman is simultaneously discriminated against on the basis of her sex and race, or her sex and disability, she would need to seek redress under different laws.

To simplify and modernise this complex system, the Federal Government decided, in 2011, to consolidate all these Acts into a single Human Rights and Anti-Discrimination Bill. However, the scale of the reform caused some concern and resistance, and ultimately it did not proceed.

The only thing that everyone agreed upon was the need to amend the SDA to make it fit for purpose in the 21^st Century. And so, in 2013, the following changes were made:

1. The definitions of ‘man’ and ‘woman’ were removed to get away from the idea that there are only two sexes
2. The term ‘opposite sex’ was replaced with the term ‘different sex’ to reflect that sex is on a spectrum, not a binary
3. A prohibition on discrimination on the basis of sexual orientation was added
4. A prohibition on discrimination on the basis of gender identity was added
5. A prohibition on discrimination on the basis of intersex status was added

Laws are living instruments that need to change and adapt to reflect contemporary societal values. The 2013 amendments to the SDA were necessary because Australians were no longer willing to tolerate discrimination against LGBTIQA+ people (when the SDA was enacted in 1984, four states still criminalised homosexual conduct) and because scientific knowledge has advanced and we now understand that there are not just two immutable sexes (there are also people who are intersex, trans and gender diverse).

Because of strong bipartisan support for these reforms, the 2013 amendments were passed by Parliament without the need for a vote. There was no public outcry or even much media coverage of the changes, and certainly no culture wars.

So why now, 13 years later, is there a push to revert to the language of the 1984 version of the SDA by defining who is a man and who is a woman?

In the last two years there have been three Bills seeking to amend the SDA, namely, Pauline Hanson’s Sex Discrimination Amendment (Acknowledging Biological Reality) Bill 2024; the Sex Discrimination Amendment (Restoring Biological Definitions) Bill 2025 introduced by Liberal Senator Alex Antic and co-sponsored by Nationals leader Senator Matt Canavan; and most recently, the Sex Discrimination Amendment (Sex-Based Rights) Bill 2026 introduced by: Nationals MP Alison Penfold as a private members bill.

These efforts by conservative politicians appear to have been prompted by the ongoing litigation of Giggle v Tickle, which involves a finding by the Full Federal Court that a corporation discriminated against a trans woman on the basis of her gender identity when it excluded her from a women-only online platform called “Giggle”. The Court rejected the corporation’s argument it had excluded a man, not discriminated against a trans women, and awarded $20,000 in damages.

The Full Federal Court noted that, “the SDA does not treat “sex” as a binary concept … . Nor, as a matter of ordinary usage, is a person’s “sex” immutable”. It acknowledged that while there are clearly people who strongly believe that the term ‘woman’ should not be applied to any person who was not registered as female at birth, it is now widely accepted that transgender people are properly referred to as members of the sex to which they have transitioned. In other words, the term ‘women’, include trans women.

That decision is now being appealed to the High Court, and the campaign to reinsert definitions of man and woman in the SDA has ramped up. But to take women back to the way they were defined in law 40+ years ago would be a retrograde step for all women. Australian women are well served by the SDA. That Act protects all women from discrimination in a balanced and fair way, with appropriate exemptions from the operation of the Act for:

• services the nature of which is such that they can be provided only to members of one sex;
• religious bodies and faith based educational institutions;
• sports where a competitor’s strength, stamina or physique is relevant; and
• voluntary clubs and associations operating on a not-for-profit basis. 

Thus, women-only community groups, men’s sheds, LGBTIQA+ organisations and the like can all lawfully restrict membership on the basis of sex, sexual orientation or gender identity. But if you are in the business of providing goods and services, the law says you must do so without discrimination, and that should not change. Let’s spend our time and effort addressing the very real problems that women are facing today; gender-based violence, pay inequity and access to reproductive healthcare and affordable housing, and not become distracted by fixing something that is not broken.