Stigma, Stigmata: Reforming the Sex Discrimination Act to Account for Menstruation as a Protected Characteristic

Abstract

This article argues that the Australian Sex Discrimination Act 1984 (Cth) (‘ SDA ’), as Australia’s primary source of sex and gender-based protections, fails to protect people who menstruate from discrimination. As the SDA currently neglects to mention menstruation, people who menstruate cannot directly access remedies for menstrual discrimination. The harms of this are worsened by structural problems within the Australian approach to discrimination law, including in the formation of the comparator – as the experience of menstruation lacks a clear analogue. Similar issues regarding menstruation discrimination are present, and likely to become more prominent, in other jurisdictions in coming years. Combining existing menstrual justice scholarship with emerging legal discourse on menstrual discrimination, this article argues the SDA should incorporate new sections enshrining menstruation and menopause, including both perimenopause and post-menopause, as protected characteristics. These sections should be framed in gender neutral terms and focus on menstruation as a lived experience rather than a medical problem. Further, both menstruation and menopause should be added as categories for which ‘special measures’ can be made to address specific inequities related to menstruation. By advocating the merits of these reforms, this article aims to provide a policy model which addresses these issues and can be adapted to suit other jurisdictions.