Introduction
The Sex Discrimination Act 1984 (Cth) was enacted to address discrimination on the ground of sex. It gave effect to the Convention on the Elimination of All Forms of Discrimination Against Women and promoted “the principle of the equality of men and women.” That object only works if men and women can be identified.
The Act still prohibits sex discrimination. It also now covers sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, potential pregnancy, breastfeeding and family responsibilities, as well as sexual harassment and harassment on the ground of sex.
The most consequential structural change was not the lengthening of that list. It was the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which commenced on 1 August 2013. That Act introduced gender identity as a protected attribute and repealed the statutory definitions of man and woman that had referred directly to the male and female sexes.
The original Act had not protected sexual orientation or gender identity. That was a real gap for same-sex attracted people. Closing it did not require repeal of man and woman.
This analysis is about what the statute says. The question is legislative: what should a Sex Discrimination Act protect? For Women Speak Australia, the answer begins with the name of the Act. A sex discrimination law should protect people from discrimination on the ground of sex.
What the Act used to define
Before 1 August 2013, section 4 provided:
man means a member of the male sex irrespective of age.
woman means a member of the female sex irrespective of age.
Those definitions tied the words used throughout the Act to sex, not to appearance, mannerisms or a revised identity document. They also made clear that girls and boys were included (“irrespective of age”).
Section 5(1) defined sex discrimination against a comparator of the opposite sex. Section 5(1A) provided that breastfeeding, including expressing milk, “is a characteristic that appertains generally to women.” De facto spouse was defined as a person of the opposite sex.
The Act also contained exemptions that only function if sex can be identified — including services the nature of which is such that they can only be provided to members of one sex, and sport. Those exemption headings remain. Their operation now depends on words the 2013 Parliament left undefined.
What the 2013 Act added — and what it repealed
The 2013 amending Act was intended, in the Attorney-General’s Explanatory Memorandum, to extend protection to sexual orientation, gender identity and intersex status through the existing Commonwealth sex-discrimination statute.
It inserted three definitions.
Sexual orientation
A person’s sexual orientation towards:
(a) persons of the same sex; or
(b) persons of a different sex; or
(c) persons of the same sex and persons of a different sex.
That definition uses sex as the referent. Same-sex and different-sex attraction only have content if sex is a classification that can be identified.
Gender identity
The gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.
Gender identity is defined so that it need not follow birth sex. Appearance and mannerisms suffice. Medical intervention is irrelevant.
Intersex status
The status of having physical, hormonal or genetic features that are:
(a) neither wholly female nor wholly male; or
(b) a combination of female and male; or
(c) neither female nor male.
Intersex status is a physical-status attribute concerning variations of sex characteristics. It is not gender identity, and it is not a third reproductive sex class. The 2013 Act kept the two in different sections. They should not be collapsed.
The same statute then repealed the definitions that had anchored the rest of the Act:
- Item 8: repeal man.
- Item 14: repeal woman.
- Item 16: in section 5(1), “the opposite sex” became “a different sex.”
The Explanatory Memorandum stated the purpose of items 8 and 14 at [18]:
These items will repeal the definitions of ‘man’ and ‘woman’ from subsection 4(1). To the extent these terms appear in the Act, they will take their ordinary meaning. These definitions are repealed in order to ensure that ‘man’ and ‘woman’ are not interpreted so narrowly as to exclude, for example, a transgender woman from accessing protections from discrimination on the basis of other attributes contained in the SDA.
Paragraph [19] added that the repeal was not intended to confine man and woman to adults.
The substitution of “different sex” for “opposite sex” was explained on the basis that sex is not a binary concept.
That is the legislative record. Parliament did not say: we add gender-identity protection and leave sex as a biological category. It removed the biological definitions so that woman would not be read as confined to the female sex.
New sections 5A, 5B and 5C created parallel tests for orientation, gender identity and intersex status. Section 7D, which permits special measures intended to achieve equality, was expanded beyond men and women to people of different sexual orientations and different gender identities. A measure taken for equality between the sexes does not, under that structure, automatically answer a gender-identity claim.
The consequences of removing the definitions
Four features of the present Act have to be read together.
First, sex remains a protected attribute. Section 5 still prohibits sex discrimination. The long title and objects still speak of sex and of the equality of men and women.
Second, man and woman are no longer statutory definitions. Where those words appear, they take their “ordinary meaning.”
Third, gender identity was introduced in the same amending Act and defined so that it can operate without regard to designated sex at birth.
Fourth, other provisions still depend on sex distinctions. Sexual orientation is defined by same sex and different sex. Breastfeeding remains a characteristic that pertains generally to women. Exemptions remain for services that can only be provided to members of one sex, and for sport. Temporary exemptions under section 44 assume there is a class from which an exception can be carved.
The result is not that sex disappeared from the Act. It is that Parliament retained sex as a protected ground while removing the statutory definitions that previously anchored the terms used to give that protection practical meaning.
Gender identity is not another word for sex. Sex is the biological classification of male and female. Gender identity, as defined in section 4, is identity, appearance or mannerisms, “with or without regard to the person’s designated sex at birth.” Once both sit in the same Act, a female-only service can be claimed both by a woman because she is female and by another person on the basis of gender identity. The Act must then say what “female-only” means.
The 2013 amendments did not abandon sex as a conceptual category. The definition of sexual orientation continues to use same sex and different sex. Lesbian, in that drafting, is same-sex attraction. If sex is no longer a stable classification, “same sex” has no fixed content. The legislation still relies upon sex while failing to define it.
Intersex status does not fill that gap. It concerns bodily variation. It does not license a redefinition of the female and male sex classes.
The statute therefore becomes circular: sex discrimination is unlawful, but what counts as sex is left to “ordinary meaning” after Parliament has said that ordinary meaning must not be read biologically enough to exclude a transgender-identifying male from being a woman.
That is a drafting problem. It makes the protected class legally less certain.
What that does to the rest of the Act
The uncertainty is not confined to the definition section. It runs through every provision that still uses woman, women, sex or one sex.
The questions left to ordinary meaning are the central questions of the statute:
- When may a female-only service exclude a male person?
- Can women maintain a female-only organisation or event?
- What does woman mean in an Act that repealed its definition?
- When may a sex-based distinction be made?
- What happens when a sex-based rule is said to discriminate on the ground of gender identity?
- How do the remaining exemptions operate if the class they serve cannot be identified with confidence?
An exemption is not a substitute for that identification. An exemption assumes that the general rule and the class have already been identified. A section 44 temporary exemption is weaker still: discretionary, time-limited and contested. A sex class that exists only by permission of a regulator is not a sex class in the statute.
Nor is the problem solved by lengthening the list of attributes. Anti-discrimination law prohibits particular forms of unlawful discrimination. It does not follow that every characteristic that can affect a person’s social experience must become a protected attribute in this Act. New grounds generate conflicts with the ground the Act was named for. The answer cannot be to keep adding provisions to manage conflicts created by the last set of provisions.
Women experience particular forms of discrimination and disadvantage because they are female. Some of the measures required to address that disadvantage depend on distinguishing females from males: sport, prisons, sexual- and domestic-violence services, intimate healthcare, changing and sanitary facilities, refuges, female-only organisations, and official statistics. If the law is to protect women because they are female, female must remain a legal category capable of being identified.
What Parliament can still do
The Federal Register records the current Act as a statute about sex and sexual orientation, gender identity, intersex status and the other listed grounds. The question for Parliament is no longer whether the interaction between sex and gender identity might produce difficult cases. The statute was written so that it would.
Whether the 2013 amendments were well intentioned is not the test. The test is whether the framework they created remains fit for a law named the Sex Discrimination Act.
Parliament can ask two questions.
Has adding gender identity to this Act, while repealing man and woman, strengthened protection — or has it made sex-based protection legally less certain?
If sex remains a protected attribute, can women exercise sex-based rights where the Act provides no biological definition of the class those rights attach to?
Those questions belong in Parliament, against the text of the Act, the 2013 Explanatory Memorandum, and the practical operation of the provisions.
A sex-based legislative model
Restoring a sex-based framework does not require abandoning protection against unlawful mistreatment. It requires distinguishing the protection of persons from the conversion of every identity claim into an attribute of this Act.
Women Speak Australia’s position is that:
- Sex should be defined in the Act as a biological, binary category.
- For the purposes of the Act, woman should mean a female person and man a male person, including girls and boys.
- Gender identity should be removed as a protected attribute from the Sex Discrimination Act.
- Sex-based protections and exemptions should operate by reference to sex.
- Women should retain the ability to organise, associate and receive services on a female-only basis where sex is materially relevant.
- Sexual orientation should continue to be understood by reference to sex — same sex or different sex — which is only possible if sex remains identifiable.
- Intersex status, as a physical-status attribute, should not be used to redefine the female and male sex classes.
- Conflicts between sex and other grounds should be resolved by clear statutory rules, not by emptying sex of meaning.
General criminal and civil protections against violence, harassment and ordinary unfair dealing would remain. So would the Act’s existing grounds that are not gender identity. The proposal is not that people who identify as transgender become unprotected. It is that a Sex Discrimination Act should be built on sex.
Conclusion
The Sex Discrimination Act should be judged by whether it does what its name states: protect people from discrimination on the ground of sex.
In 2013 Parliament added gender identity as a protected attribute, defined it without regard to designated sex at birth, and repealed the definitions of man and woman. Sex remains on the page. The relationship between sex and gender identity was made legally less certain by design.
The remedy is not another attribute, and not a narrower exemption tacked onto an undefined class. It is to restore the category.
Sex should be a meaningful biological classification in Australian discrimination law. Women should be protected as female persons, men as male persons. Gender identity should not sit as a competing attribute inside a Sex Discrimination Act. Sexual orientation should keep its referent — sex — which requires that referent to exist.
A law intended to protect people from sex discrimination should be built upon sex. That is not exclusion. It is legislative coherence.
Reference:
Sex Discrimination Act 1984 (Cth): https://www.legislation.gov.au/C2004A02868/latest/text
Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth): https://www.legislation.gov.au/C2013A00098/asmade/text
Explanatory Memorandum, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 (Cth), [18]–[19] (items 8 and 14): https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation/ems/r5026_ems_1fcd9245-33ff-4b3a-81b9-7fdc7eb91b9b%22
Sex Discrimination Act 1984 (Cth), compilation prepared 5 February 2010 (amendments to Act No. 124 of 2009). Last compilation before the 2013 amendments repealed the definitions of man and woman.