Ordinary female-only provision of services and spaces was never meant to require government permission. We examine how a temporary, discretionary exemption process is coming to function as the default pathway women’s organisations are expected to rely on — and what that costs organisations already stretched thin.
Under the Sex Discrimination Act 1984 (SDA), provision of female-only services and spaces was originally treated as ordinary and lawful, exempted from the Act on the basis that they were provided to one sex only. A separate mechanism allowing ‘special measures’ to achieve substantive equality between men and women was added to the Act later, by amendment in 1995. There is, however, a developing expectation — one the AHRC has itself stated publicly — that organisations providing these services should rely on a discretionary, case-by-case exemption process simply to continue operating as they always have.
We examine how that expectation has taken hold, what it costs in practice, and some of the options available to Parliament in addressing it.
The exemption process was not designed as an ordinary basis
Section 44 of the SDA allows the AHRC to grant temporary exemptions from the Act’s operation. This mechanism exists for circumstances that are genuinely time-limited or unclear, and not as the ordinary basis on which long-standing, uncontroversial female-only services continue to exist.
There is a growing presumption, however, that the exemption process should be the default pathway by which women’s organisations retain the ability to provide female-only services at all. Speaking at the AHRC’s Perth seminar in June 2026, AHRC President Hugh de Kretser said that women can apply for exemptions to meet as a women-only group or run a female-only service such as a refuge — in effect describing exemption as the standing mechanism available to women’s organisations. This treats a temporary, discretionary process as if it were the primary safeguard for provision that was never intended to require permission in the first place.
The clearest illustration of the problems this creates is the Lesbian Action Group’s application for a temporary exemption to hold events restricted to “lesbians born female only”, submitted to the AHRC in August 2023. The Commission refused the exemption in October 2023, and the Administrative Review Tribunal affirmed that refusal in January 2025. In April 2026, the Federal Court allowed the group’s appeal, finding that the Tribunal had failed to properly weigh the exemption’s potential benefits and had not fully discharged its duty to consider the group’s own rights. The Court set aside the Tribunal’s decision and remitted the matter to a differently constituted Tribunal for reconsideration — meaning the underlying question remains unresolved almost three years after the original application, across two separate proceedings so far. That outcome is inconsistent with the exemption process functioning as a workable, general-purpose safeguard for women and girls needing female-only services, spaces and protections.
The practical consequences
An exemption-dependent framework produces several measurable effects, and its reach extends well beyond refuges and sport. Female-only provision matters wherever sex is genuinely material to a service’s female-only purpose: intimate personal care, services for women escaping male violence, women’s housing and accommodation, the welfare of women in custody, sex-based data collection, and grants or programs directed at female disadvantage all rely on the same basic premise: that provision can lawfully be organised around sex where sex is the reason the provision exists.
Organisations providing any of these services cannot rely on continuity of protection under an exemption-dependent model. Each exemption is granted for a defined period and must be renewed, reapplied for, or defended if challenged, which introduces ongoing administrative and legal cost for services that are, for the most part, run by volunteers and/or under limited funding. This is time and resources diverted from service delivery for women and girls, for no guarantee of a positive outcome.
The effect is not limited to large or well-resourced organisations. A small, informal women’s group — the kind that meets to exercise or socialise together, with no paid staff and no legal budget — faces exactly the same uncertainty as a national service provider if its female-only character is ever challenged or if it seeks to formalise that basis for meeting. If the current framework is unworkable for a handful of women meeting locally, it is more serious still for refuges, shelters and sporting bodies carrying ongoing responsibilities to the women and girls who rely on them.
Settings involving girls — sport, education, grants and scholarships, changing facilities and other contexts where privacy, safety, fairness and dignity are directly at issue — are particularly exposed, because protection in these settings depends more heavily on interpretation and administrative practice than on clear, standing statutory provision. Even where a standing exception exists, as it does for competitive sport, uncertainty elsewhere in the framework can still leave organisations unsure how confidently to rely on it. This is compounded where sporting bodies themselves issue guidance focused on inclusion without clearly explaining the permanent exemption already available to them, leaving volunteer-run clubs uncertain of their legal position. Faced with that uncertainty, clubs may feel pressure to admit male-bodied competitors into female categories rather than risk a discrimination complaint — a chilling effect that can occur even where no formal complaint has been made, and that achieves, in practice, the opposite of what the exemption was designed to protect. Our earlier analysis sets out this problem in more detail.
There is also a data dimension. Government’s capacity to measure and respond to male violence against women and girls, health disparities between the sexes, and sex discrimination more broadly depends on consistent sex-based data collection. Where the underlying legal categories are subject to ongoing dispute and case-by-case determination, that data becomes harder to collect and compare consistently across services and jurisdictions.
Options for legislative reform
The exemption process is a symptom of a more fundamental gap: the SDA no longer defines ‘woman’ or ‘man’ by reference to sex, and has never separately defined ‘sex’ itself. From 1984, the Act defined ‘woman’ as “a member of the female sex, irrespective of age” and ‘man’ as “a member of the male sex, irrespective of age,” anchoring both terms in sex, even though ‘sex’ itself was left to its ordinary meaning. The 2013 amendments repealed those definitions altogether, leaving ‘woman’ and ‘man’ to be understood only by their ordinary meaning, and inserted ‘gender identity’ as a new, separately protected attribute. That change, not an original drafting oversight, is what has since become the central point of legal contention, most recently in Giggle v Tickle. Addressing that gap opens up several possible directions for reform, each with its own implications.
One option would be to insert a statutory definition of sex into the Act, grounded in ordinary biological understanding. The drafting task here is crucial to get right, but it need not be intrusive: a workable definition would not require women and girls to undergo any form of testing or verification simply to take part in ordinary female-only provision or sport. The aim is a clear, common-sense distinction between sex and gender identity, not a demanding evidentiary threshold.
A second option concerns how female-only services are named within the Act itself. Rather than requiring organisations to establish their case through the exemption process on an ongoing basis, services such as female-only refuges, rape crisis centres and sport could be identified as protected within the Act, using an inclusive rather than exhaustive list, naming clear examples while leaving room for services not currently anticipated; in other words, ‘including, but not limited to…’.
A third option is to clarify the boundaries of the standing exceptions that already permit female-only provision, so that organisations can rely on them with confidence rather than defaulting to a case-by-case exemption application out of uncertainty about where those boundaries now sit. A standing exception identifies in advance that female-only provision may be lawful, giving providers practical certainty and letting them plan and deliver services responsibly. An exemption, by contrast, requires organisations to seek permission and often to justify their provision only after a complaint or challenge has already arisen. This would not extend lawful female-only provision beyond what the Act already permits, but it would reduce the practical incentive to seek an exemption for services that are arguably already covered.
Any of these changes would need to be considered alongside existing protections against discrimination on other grounds. Parliament would need to decide how those protections interact and, where a genuine conflict arises with a material implication for women’s sex-based protections and rights, whether sex should take priority — consistent with the SDA’s founding purpose of achieving substantive equality for women as a sex class, and with Australia’s obligations under CEDAW, which defines discrimination against women by reference to sex.
This is not a case for removing protections from anyone; rather, it is a case for ensuring that provisions created to address the material reality of female sex remain capable of doing so where that is genuinely their purpose. There is also a federal-state dimension: because the recording and alteration of sex on identity documents is governed by state and territory law, reform at the Commonwealth level would need to account for how it interacts with document regimes that currently differ across jurisdictions.
Finally, however Parliament proceeds, there is a case for drafting with sufficient precision that courts are not routinely required to resolve ambiguity that could have been settled at the drafting stage, as Giggle v Tickle itself illustrates, where the absence of a clear definition left the meaning of ‘sex’ to be worked out through litigation rather than through the words of the Act.
These are among the directions available to Parliament, not a single prescribed outcome. The Full Federal Court in Giggle v Tickle interpreted the SDA as it currently stands; if that outcome is not the one Parliament intended, changing it is a matter of legislative amendment, not further litigation. The detail of any reform, and the balance it strikes, is properly a matter for Parliament’s own deliberation and consultation processes.
This is not a question courts can resolve for good; it is a question only Parliament can answer, and it is one Parliament has yet to properly ask.