Forty years after the Sex Discrimination Act was passed, Australia’s anti-discrimination laws are facing significant challenges. The Sex Discrimination Act 1984 (SDA) was enacted to give effect to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), prohibiting discrimination against women and authorising ‘special measures’ to promote substantive gender equality. Yet in recent years, confusion has emerged, fuelled by ambiguous amendments, the erosion of clear sex-based definitions, and the rise of sex self-identification laws across states and territories.
The challenges facing Australia’s human rights institutions have been brought into sharp focus through recent public exchanges. At the National Press Club last month, the Sex Discrimination Commissioner addressed our questions about the reinterpretation of CEDAW and its impact on women’s rights in Australia. Similarly, during recent Senate hearings, exchanges between senators and the Sex Discrimination Commissioner highlighted different approaches to terminology and definitions that underpin anti-discrimination law.
These discussions reflect a broader institutional challenge: preserving certainty and consistency in interpreting legislation that affects women’s rights and protections, and safeguarding those rights in practice. Where uncertainty exists at the institutional level about core legal concepts, it creates confusion for those seeking to understand their rights and obligations under the law. And the Australian Human Rights Commission (AHRC) has the tools to provide the clarity and protection that’s needed.
Parliament’s intent: Certainty, not confusion
Parliament’s original intent regarding the SDA is clear from the Act’s history and Hansard: to preserve women’s sex-based protections and rights and ensure our meaningful participation in public life. The Act’s permanent exemptions (see, for example, Sections 30, 32, and 42) and the special measures provision (Section 7D) were designed to guarantee that women could maintain female-only spaces and services where necessary, particularly in contexts involving safety, privacy, and dignity, or when addressing historical disadvantage.
The 2013 amendments to the Sex Discrimination Act introduced terms such as ‘gender identity’ alongside existing protections, but crucially, Parliament never intended these amendments to erase women’s sex-based rights. Indeed, the amendments were designed to add protections, not remove existing ones. However, the practical effect has been to create uncertainty about when sex-based distinctions remain lawful and appropriate.
Current challenges in practice
Women’s rights groups across Australia have documented how current interpretations of anti-discrimination law systematically prioritise gender identity considerations over women’s sex-based protections, without adequate transparency about how this balance is determined or accountability for the consequences. Service providers report confusion about their legal position when maintaining female-only provision for women who have experienced male violence. Sporting organisations receive incomplete guidance about existing legal protections for women’s sport.
This uncertainty affects a wide range of women’s protections: from access to female-only changing rooms and crisis services, to the integrity of women’s prisons and refuges, to fair competition in women’s sport, and to the ability for lesbians to gather exclusively as same-sex attracted females.
The AHRC’s statutory obligations under section 11
The Australian Human Rights Commission performs vital work in protecting human rights across Australia. This work is enabled by the Australian Human Rights Commission Act 1986, which provides the Commission with powerful tools to address the uncertainty surrounding women’s sex-based protections and rights. In particular, Section 11 empowers the Commission to:
- Inquire into any act or practice that may be inconsistent with or contrary to any human right
- Examine enactments to determine whether they are inconsistent with human rights
- Report to the Minister on necessary legislative reform
- Issue guidelines for avoiding acts or practices it has inquired into
These are not discretionary powers: they are statutory functions that belong to the Commission and cannot be delegated or ignored. Given the widespread confusion documented by women’s advocacy organisations, there is now a clear case for the Commission to exercise these powers to provide much-needed guidance, creating an opportunity for institutional leadership.
The Commission’s current approach
But recent decisions by the AHRC demonstrate how institutional drift has compounded the practical problems for women. The Commission’s rejection of the Lesbian Action Group’s application for an exemption to hold female-only events effectively prevents lesbian women from exercising freedom of assembly on the basis of biological sex. This decision has broader implications for women’s political organisation and advocacy.
Similarly, the Commission’s submission in the Tickle v Giggle case outlined interpretative approaches that conflict with established legal protections for women’s sex-based rights. These interventions suggest the Commission has adopted an attitude that may systematically subordinate sex-based protections to other considerations.
International obligations and consultation requirements
Australia’s obligations under CEDAW Article 7 specifically guarantee women’s right to meaningful participation in the formulation and implementation of government policy, and that will be particularly the case in matters that directly affect our interests. Yet the pattern of limited institutional engagement with organisations focused on women’s sex-based rights on changes that fundamentally affect sex recognition and women’s legal protections represents a clear breach of this obligation.
And as the UN Special Rapporteur on violence against women and girls has confirmed, international human rights law does not support any interpretation that permits derogating from the obligation to eliminate discrimination based on sex – nor does it allow this obligation to be subordinated to other rights. This principle ensures that in circumstances where sex-based and gender identity protections conflict, sex-based rights must not be rendered secondary.
A clear way forward
The AHRC has the statutory authority and obligation to provide certainty on these issues. A section 11 inquiry would examine whether current interpretations and applications of anti-discrimination law adequately protect women’s sex-based rights, whilst also ensuring appropriate protections for other groups. Such an inquiry would:
- Clarify parliament’s original intent as to its 2013 amendments
- Provide transparent analysis of how women’s sex-based protections interact with gender identity provisions
- Offer clear guidance to service providers, sporting organisations, and women’s groups about lawful exemptions and special measures
- Ensure meaningful consultation with affected women’s organisations
- Report to the Minister on any necessary legislative clarification
The inadequate guidance facing women’s advocacy organisations and service providers regarding their rights to maintain female-only provision would clearly justify such an examination under the Commission’s own guidelines. Initiating this process would create a pathway for institutional collaboration with women’s groups who have documented these concerns.
Parliamentary options for certainty
If the Commission continues to avoid exercising these statutory powers, Parliament may need to consider alternative approaches to clarify the SDA’s operation regarding women’s sex-based protections. The Attorney-General has the power to direct formal investigations under section 11, providing one mechanism for ensuring institutional responsiveness given the documented legal confusion facing women’s organisations and service providers. Parliament also has broader options, including a targeted Senate inquiry into the practical operation of the SDA’s sex-based protections, which would provide a forum for women’s rights and advocacy organisations, service providers, and sporting bodies to present evidence about the guidance gaps they are experiencing.
Parliament’s intervention would not represent a failure of institutional process, but rather the democratic system working as intended. Where administrative agencies cannot provide the guidance that citizens and organisations require to understand our rights, Parliament retains both the authority and the responsibility to ensure legal certainty.
Conclusion
Legal certainty is a core requirement of the rule of law and a necessary condition for the realisation of women’s rights. Women’s rights organisations are entitled to clear guidance about when biological sex distinctions remain lawful under Australian anti-discrimination law. Service providers require certainty about their obligations and protections when maintaining female-only provision.
The Commission’s section 11 powers provide the appropriate mechanism for addressing this uncertainty. The time for institutional drift has passed — women’s rights demand certainty, accountability, and the proper exercise of statutory powers designed to protect human rights for all Australians, including women.
The Commission has both the authority and the obligation to act, and it must put its section 11 powers into action. The question is whether it will choose to exercise these powers in service of human rights it was established to protect or whether it will wait for others to legislate or litigate around women’s sex-based protections.
