AAWAA has been making the case for reform of the Sex Discrimination Act for some time, and the Full Court has now effectively validated our concerns.
The Court has admitted the problem
In its 15 May 2026 decision in Giggle for Girls Pty Ltd v Tickle, the Full Federal Court traced the evolution of the Sex Discrimination Act (SDA) and drew a stark contrast between earlier and current versions. The Court noted that earlier versions of the SDA gave “pre‑eminence to the rights of women qua women (ie, to equality with men)”, but that “no such pre‑eminence can now be seen in the provisions of the Act or in the range of international obligations to which it seeks to give effect.”
The judges then stated that, in its current form, the SDA “seeks to provide the same measure of protection against several distinct forms of discrimination and its provisions may therefore limit the extent to which some understandings of women’s rights can be pursued.” They added that whether this is “a good thing is, of course, not a matter for this Court”, making clear that it is for Parliament to fix.
Why reform is now urgent
This acknowledgment from the Full Court directly underscores AAWAA’s arguments about the SDA’s structural weaknesses. The 2013 amendments added sexual orientation, gender identity and intersex status to the SDA’s coverage of discrimination in public life, but did so without a clear statement that sex‑based distinctions remain lawful where women’s safety, dignity and privacy require it. Those amendments also removed the definitions of ‘man’ and ‘woman’ and relied instead on ordinary meanings.*
These 2013 amendments were passed without any serious public debate or testing of their impact on women‑only spaces and services – the Minister’s second reading speech did not even mention women. Since then, state and territory moves to self‑identification of sex on official documents have largely proceeded without considering the consequences for women.
Taken together, this mix of substantively far‑reaching but largely un‑debated changes is now producing new and unanticipated forms of discrimination against women, particularly in prisons, refuges and single‑sex services. We now urgently need an open public debate, followed by a proportionate balancing of competing rights that takes women’s safety, privacy and dignity seriously.
What the SDA now gets wrong
By recognising that the SDA no longer affords women any special pre‑eminence and may actually limit some understandings of women’s rights, the judgment exposes and amplifies multiple structural problems in how the Act now deals with:
- Sex, which is no longer clearly defined in the statute for the purposes of protecting women as a sex class.
- Gender identity, which was added as a protected attribute without explicit guardrails for situations where it conflicts with sex‑based protections.
- Women‑only spaces, where providers face legal uncertainty and litigation risk if they attempt to operate on a female‑only basis in sensitive contexts such as prisons, shelters and single‑sex services.
- Special measures, with the Court confirming that measures to advance women cannot be used as a blanket shield to justify discrimination against other protected groups, but also making clear that the current drafting does not resolve the underlying conflicts between protected attributes.
Taken together, these features mean that the SDA is no longer a clear, reliable foundation for protecting women as a sex class in the situations where sex matters most.
No more excuses
The Court has done what courts must do: it has applied the Sex Discrimination Act as it now stands and, despite the interpretive moves we have noted above, has in careful judicial language acknowledged the law’s limits.
Legislators and the federal human rights machinery can no longer dismiss concerns about the SDA’s treatment of sex and women‑only spaces as “divisive” of “hurtful”, when the Full Court itself has said the Act may limit the pursuit of women’s rights.
Giggle has laid bare the deeper problem we have been warning about for years: a law originally drafted to secure women’s equality has been amended and reinterpreted in ways that erase sex while claiming to advance equality.
There can be no more excuses – the Act must be changed so that sex‑based protections for women and girls are once again clear, coherent and capable of doing the work women and girls need them to do.
This is not a left–right issue; it goes to the safety, privacy and dignity of all women and girls.
*In Giggle, the Full Court relied selectively on extrinsic materials: it drew on the 1995 Second Reading Speech and quoted chosen passages of the 2013 Explanatory Memorandum, but cited no 2013 Hansard and did not engage the EM paragraphs that state that ‘man/men’ and ‘woman/women’ continue to refer to males and females respectively or that the new attributes were intended to sit alongside, rather than displace, the existing sex‑based framework for special measures, a pattern that sits uneasily with the principle of legality, which requires clear statutory language before long‑standing rights are displaced.
