"woman" means a member of the female sex irrespective of age.
68 The word sex was, and remains, undefined in the SDA.
69 Section 9(4) originally provided that certain prescribed provisions of Div 1, 2 and 3 of Pt II were to be given effect as provided by the other provisions in s 9. Section 22 is among the prescribed provisions. At the time of enactment, s 9(10), which referred to the external affairs power, provided that:
if the Convention [CEDAW] is in force in relation to Australia, the prescribed provisions of Part II, and the provisions of Division 3 of Part II, have effect in relation to discrimination against women, to the extent that the provisions give effect to the Convention [CEDAW].
70 In 2011, amendments were made to section 9 to provide that the Act had a wider scope of constitutional support: Sex and Age Discrimination Legislation Amendment Act 2011 (Cth). This included expanding the number of international instruments referred to in s 9(10). Section 9(10) of the SDA now provides that the prescribed provisions have effect to the extent that they "give effect to a relevant international instrument". Section 4 defines "relevant international instruments" as several international instruments to which Australia is party, including CEDAW and the ICCPR. The combined effect of sub-ss 9(4) and (10) is that s 22 will be given effect to the extent that it implements Australia's obligations under relevant international instruments: AB v Registrar of BDM at [96] (Kenny J, Gyles J agreeing).
71 The 2013 SDA Amendment made several further changes to the SDA, expanding the kinds of prohibited discrimination to include discrimination on the grounds of sexual orientation, intersex status and, relevantly to the present proceeding, gender identity. These amendments inserted definitions of these new grounds of prohibited discrimination, and inserted references to those forms of discrimination in the prohibition provisions in Part II of the Act. The word "gender" was not defined, but a definition of "gender identity" was inserted into s 4 (excerpted at [32] above). Section 3 of the SDA was also amended to add these forms of prohibited discrimination to the list of kinds of discrimination whose elimination is an object of the SDA: s 3(b).
72 As already noted, this package of amendments removed the definitions of man and woman from section 4, in order to better support the purpose of the gender identity discrimination provisions: see above at [59].
