The NSW Law Reform Commission’s consultation paper on the Anti-discrimination Act review has raised concerns that it might look to the Australian Government Guidelines on the Recognition of Sex and Gender to shape legal concepts of sex and gender in NSW. These administrative guidelines, however, do not provide a solution to the ongoing legal uncertainty surrounding the conflict between sex and gender in law. And of course, the Sex Discrimination Act 1984 (Cth) (SDA) remains the supreme law, and its statutory exemptions for single-sex spaces cannot be overridden or changed by such guidelines.
Building on the importance of statutory clarity over administrative guidelines, we turn to the SDA itself, overseas examples, and parliamentary intent to highlight the urgent need for precise legal definitions of sex and gender.
The SDA’s exemptions: who can access what?
The SDA contains robust statutory exemptions for women’s single-sex spaces, including Sections 30 (genuine occupational requirements), 42 (competitive sport), and 7D (special measures), the latter aligning with Australia’s obligations under CEDAW. These reflect Parliament’s recognition of the significance of biological sex in specific contexts. When gender identity protections were introduced in amendments made in 2013 to the Act, these sex-based exemptions were explicitly preserved, as confirmed in parliamentary debates and the explanatory memorandum to the amendments.
And it’s here that the recent UK Supreme Court decision in For Women Scotland Ltd v The Scottish Ministers provides instructive guidance. The Court ruled that ‘woman’ in equality legislation refers to biological sex, not gender identity, clarifying that single-sex spaces can lawfully exclude biological males to protect women’s safety, dignity and privacy. Whilst this is UK law, it nevertheless demonstrates how statutory exemptions operate independently of administrative guidance.
Data collection: sex, gender, or both?
Although the Australian Guidelines prefer collecting ‘gender’ data and suggest sex data be collected only for a “legitimate need,” this is an administrative preference only and cannot override the operation of SDA exemptions or the intent of Parliament for the definitions of woman and man to retain their ordinary meaning. In fact, the Guidelines themselves were designed to standardise inconsistent government recordkeeping—not to redefine legal concepts or alter statutory protections. So, when it comes to accessing single-sex exemptions under the SDA, the relevant question remains biological sex as understood at law, regardless of what data collection systems prefer to record.
This distinction matters enormously. A women’s shelter operating under SDA exemptions doesn’t lose its legal protection simply because government departments prefer to collect ‘gender’ data. In practice, however, we are seeing such shelters, and other female-only services and spaces, changing their operating models in order to avoid anti-discrimination claims and to secure government funding. But the exemption operates at the level of the Act itself, not administrative implementation guidelines.
Lessons from the UK Sullivan Review
The UK’s 2024 Sullivan Review into data collection on sex and gender provides sobering lessons about what happens when administrative preferences override legal clarity. The Review, led by Professor Alice Sullivan, found that conflating sex and gender in data collection creates “obstacles to accurate data collection” and undermines legal protections.
Sullivan’s key recommendations included prioritising data about biological sex and ensuring clear distinctions between sex and gender in public policy. Critics noted the review was conducted by gender-critical academics, but this misses the point: the fundamental issue is legal clarity, not a feminist perspective.
The Sullivan Review identified serious safeguarding risks when sex-based protections become unclear, particularly for children and vulnerable women. In healthcare contexts, this confusion can be literally life-threatening when biological sex information is medically necessary but obscured by administrative preferences for gender data.
Most importantly, the Review demonstrated how administrative guidelines that prioritise gender over sex can create a kind of intermediate zone where people’s legal protections become uncertain. This echoes the European Court of Human Rights warning in Goodwin v UK that such uncertainty is “no longer sustainable” in modern democracies.
A call for legal clarity
The hesitancy evident in the NSW Law Reform Commission consultation document demonstrates why legal clarity is so crucial and the Commission must not conflate administrative guidelines with the law. Our concern is that these Guidelines risk becoming a distraction from the real legal challenge facing policymakers and institutions, as they appear to offer a straightforward solution to the current confusion and lack of clarity around how sex and gender should be understood in law. This may especially be the case when anti-discrimination bodies or commissions are under pressure to provide accessible, definitive guidance.
Relying on these guidelines could be an attractive shortcut to resolve uncertainty because they supply administrative definitions and uniform procedures, creating the impression of clarity and consistency. However, this is only surface-level certainty. The true path to clear and enforceable sex and gender provisions lies not in administrative convenience, but in the correct interpretation of the law itself—and that means looking to the intent of Parliament.
The risk, therefore, is that by privileging guidelines over proper legal analysis, critical protections — such as exemptions for women’s female-only spaces — could be blurred or undermined. Real legal clarity must be built by going back to the source: examining the statute itself, understanding parliament’s clear intention, and then looking to how the law has been interpreted in courts. Only through this foundation can we create certainty that safeguards both women’s protections and non-discrimination guarantees.
Legal clarity in statutory exemptions is essential to protect those of us who depend on them. The UK’s experience shows that precise legislative definitions benefit everyone. The law must remain supreme, and administrative guidelines must know their place within our constitutional framework.
