In recent weeks there has been renewed attention on how Australia’s sex discrimination laws operate. That interest reflects the importance of the issue, but it also highlights the need for a clear explanation of what the law actually does – and does not – say.

The Sex Discrimination Act 1984 is about fairness. It makes sure people are not treated unfairly because of who they are or assumptions about them. It reflects a principle most Australians would agree with: everyone deserves equal protection under the law.

Discrimination based on pregnancy doesn’t just happen when someone is pregnant. It can happen when an employer assumes a younger woman is going to “go off and have a baby”. For generations, women have been overlooked for jobs because some employers assume “they won’t be as committed when they have children”. These assumptions – whether conscious or not – can shape decisions about hiring, promotions and opportunity.

The law focuses on how decisions are made. The question is not just whether someone can become pregnant – it’s whether they were treated unfairly because they look like someone who might become pregnant. This principle applies consistently – a woman may be infertile, may not want children or may be transgender, but none of that changes the fact she can still be subject to discrimination based on how others perceive her. The law is designed to deal with exactly that kind of unfair treatment.

It has always been unlawful under the SDA to discriminate on the basis of sex, pregnancy and what is known as “potential pregnancy”.

The SDA is not the only law to include potential pregnancy discrimination. The Fair Work Act and state and territory anti-discrimination laws reflect the same approach: decisions must be based on merit, not stereotypes about someone’s personal life or future.

In 2013, the SDA was changed to include protections for sexual orientation, gender identity and intersex status, recognising that many Australians – including lesbian, gay, bisexual and transgender people – were experiencing discrimination in everyday life.

Since 1993 Australian courts have recognised that sex can be legally changed. Now, identity documentation laws in all states and territories allow people to change their sex. Trans women are women under the SDA, and the same protections generally apply.  

A trans woman cannot become pregnant. But she may be perceived as someone who could.

If a decision – such as whether to hire or promote her – is based on that assumption, the law asks whether that decision was fair.

This is not a new category of rights being advocated for by the Australian Human Rights Commission or other agencies. It is the same principle being applied consistently, as required under the provisions of the SDA.

When it comes to the broader application of the SDA, it is important to recognise that some women hold genuine concerns about trans women being in women-only spaces. These views are sincerely held and deserve to be engaged with respectfully. The Commission engaged with a range of perspectives about this issue in our recent Equal Identities report. A serious discussion makes room for these perspectives, while staying grounded in how the law actually operates. It also recognises that there are exemptions in the SDA – such as exemptions that support women’s sport where strength, stamina or physique is relevant.

The intensity of the current debate risks distracting from a far more urgent issue. There is no evidence that trans women are harming other women in toilets or change rooms. There is, however, overwhelming evidence that 22 women and children have died this year because of gendered violence. That is where national attention is most needed.

That is where effort, policy, unity and collective focus must remain.

Human rights are not a zerosum exercise. Making sure one group is safe and protected does not mean the law does not ensure the safety and protection of all groups. The purpose of the law is to ensure that everyone can live safely, participate fully, and be treated with dignity. Trans and gender-diverse people make up less than 1 per cent of Australia’s population. Their experiences should not be trivialised. It’s not just about the clothes someone puts on their body – it is about their identity, how they see themselves, and how they are seen by the world. It deserves to be understood with seriousness and respect.

It is entirely possible – and necessary – to have respectful, fact-based discussions about complex issues, and to remain united and focused on the very real harms affecting women and children.

Public debate will always involve differences of view. But it must be grounded in facts. The SDA is about ensuring that decisions are made for the right reasons – and that no one is excluded because of assumptions that should never have been made. If we keep that in focus, the law is clear. And so, too, is where our attention should be.

Anna Cody is the Sex Discrimination Commissioner.