The current review of the Anti-Discrimination Act 1977 (NSW) could reshape the rights and daily realities for women and girls in New South Wales for decades to come. The NSW Women’s Action Alliance has made a submission to the review, saying it is critical that law reform is grounded not in shortcuts or administrative expediency but in statutory clarity, especially where our sexed-based protections and rights are at stake.
The urgent need for a clear definition of ‘sex’
The NSW Law Reform Commission is examining how the Act defines and protects against ‘sex’ discrimination, and whether amendments are needed to reflect contemporary standards. But one of the deepest flaws in the current approach is a lack of clarity. For years, definitions (or lack thereof) of ’sex’ have allowed confusion and inconsistency to flourish in courts, policy, and frontline service provision. This ambiguity harms us directly: where health care, crisis services, prisons, sport, and other essential spaces exist, women need certainty that our sex, that is, as female and as the term is universally understood, will be recognised and upheld.
It is vital to reject the suggestion made in the NSWLRC’s consultation paper that the law should abandon ‘sex discrimination’ for a broader, vaguer ‘gender discrimination’ standard.
While some may think this would be more inclusive, the reality is that it dismantles the basis for sex-based protections (such as those for pregnancy, safeguarding from male violence, and the right to female-only spaces or services) that are tied to being female. Australia’s obligations under CEDAW (the Convention on the Elimination of All Forms of Discrimination Against Women) require protections rooted in sex, not identity, feeling or self-declaration.
Statutory law, not administrative shortcuts
Red flags in the NSW Law Reform Commission’s consultation paper raise concerns for us that the LRC might look to the Australian Government Guidelines on the Recognition of Sex and Gender to shape legal concepts of sex and gender in NSW. Guidelines are meant to interpret and implement the law, not define or limit it. Courts consistently affirm that statutes remain the highest authority, and that clarity in primary legislation is essential for certainty and fairness. Deferring to administrative guidance, even where it might seem like an easy fix, risks perpetuating the same ambiguities that have led to our sexed-based protections and rights being eroded in practice.
Guidelines may serve bureaucratic consistency, but they cannot replace the authority or structure of the Act, nor can they override Parliament’s intention. It is only through a clear definition of ‘sex’ in primary law, anchored in biological reality and international precedent, that rights and protections for women can be robust and effective.
Maintaining female-only protections: why gender is not enough
And moving away from precise sexed-based language towards ‘gender’ risks introducing yet more confusion. It would make it almost impossible to defend female-only provisions in sport, healthcare, or crisis accommodation, since gender can be changed by declaration (sex self-ID) or administrative process. This would not protect us from the vulnerabilities and exclusion that anti-discrimination law was created to solve.
This would not protect us from the vulnerabilities and exclusion that anti-discrimination law was created to solve.
The record across Australia and overseas is clear: once sex loses its sharply defined, material meaning, women and girls are left exposed to new hierarchies of rights where our needs are secondary.
It would be a grave error to ignore recent history. The NSW Equality Legislation Amendment (LGBTIQA+) Bill 2023 was pushed through Parliament with limited consultation, excluding women’s groups and refusing substantive public submissions. Not only was this undemocratic; it led to law reform that did not adequately reflect or safeguard women’s interests. The current anti-discrimination review must not repeat these mistakes.
What needs to happen now
The Commission must take this opportunity to:
- Clearly define ‘sex’ in statutory law as female or male, as observed or recorded at birth, with scope for protection of those with recognised intersex conditions—without creating confusion or a third legal category.
- Preserve the language and structure of ‘sex discrimination’, resisting pressure to shift to ‘gender discrimination’ frameworks.
- Ensure that female-only spaces, services, and opportunities can function as intended, to protect women’s safety, dignity, and participation in public life.
- Require meaningful consultation with women’s groups and those with lived experience, not just invited stakeholders or administratively convenient panels.
Conclusion
Anti-discrimination law must be written for real women and girls, not for theoretical debates or bureaucratic neatness. Our safety, privacy, and rights — and the ability of the law to protect them — depend on respectful, careful, and evidence-based legislative drafting. Anything less would be a failure not just of legal reform, but of Australia’s duties under international human rights law.
We call on the Commission to ensure that women’s sexed-based protections and rights are explicitly secured.
Read our full submission below.
