This change is presented as good news for trans and intersex Victorians. The bill has passed its first reading in the Lower House, and its second reading has been moved and adjourned until the next sitting on August 13. If it passes there and at the Upper House, it commences on the May 1, 2020, if not before. Despite the fact that this bill changes what it means to be a person of a particular sex in law, and despite the fact that sex is a protected attribute in both the Victorian Equal Opportunity Act and the Australian Sex Discrimination Act, the group that faces the most sex discrimination - namely female people - have not been consulted about the bill, and the implications of the bill on their legal protections, if any, have not been adequately acknowledged or explored. It is an important commitment of liberal democracy that the people have a right to be consulted on changes that affect them. Yet the only groups consulted in the Australian Human Rights Commission’s Sex Files report (which preceded the proposed reforms) were "the sex and gender diverse community". New Zealand recently deferred its version of the bill because of inadequate consultation, as did Scotland. We should learn from these countries’ mistakes. Loading Sex is no longer defined in Australian law. The definitions of "woman" and "man" were removed from the Sex Discrimination Act with the 2013 Amendment. It is unclear whether it refer to biological sex, the sex we are observed as having at birth, altered sex, the sex we are taken to acquire after certain surgical or medical interventions, or legal sex, the official record of our sex in the birth register or on other official documents.

There is some case law that suggests it’s at least not the former, in particular where marriages involving transsexual people were upheld by the courts prior to marriage equality. But there hasn’t been relevant case law since four states of Australia (the ACT, SA, NT, and TAS) introduced changes removing any need for surgical or medical interventions. (The first three require "clinical treatment", which can be as little as a few counselling sessions, while the last one requires only a statutory declaration.) The question for Victorians - and indeed for all Australians, given that half of our states have now introduced this legislation - is what we want the law to protect when it comes to sex. If we choose only legal sex, the further question is whether we want this to be so broad as to extend to psychological states (like beliefs) alone. In a (2012) paper in the Sydney Law Review, academics Laura Grenfell and Anne Hewitt distinguished three main approaches to sex across Anglo-American law. These were sex as biology, sex as congruent anatomy and psychology, and sex as psychology. We take the former approach if we insist that legal sex must reflect biological sex; the second approach when we say that legal sex must reflect a body that has to some extent been brought into line with the sex a person believes themselves to have; and the third when we say that the beliefs alone are what settle the matter. Loading Arguably, this last option creates a conflict of interest between transgender women (people who were observed to be male at birth) and women. The Victorian Equal Opportunity act lists a number of cases where discrimination on the grounds of sex would be lawful, and these include competitive sports, genuine occupational requirements, educational institutions, student accommodation, sexual services accommodation, clubs, and religious schools.