CEDAW
162 The Commissioner contends the word women in CEDAW includes transgender women. She argues, therefore, that s 22, read with s 5B, gives effect to Australia's obligations under CEDAW, and is therefore supported by the external affairs power. That submission is adopted by Ms Tickle. The respondents contend that s 5B (which, again, I beneficially take to be a reference to s 22 read with s 5B) is not an enactment of Australia's obligations under CEDAW to the extent that it protects persons who were not born of the female sex. On the construction they advance, CEDAW grants protections only to women, and the word women in CEDAW only means adults born of the female sex.
163 There is in fact an anterior question–not addressed by the respondents–as to whether CEDAW is exclusively concerned with discrimination that places women in a less favourable position than men, or whether it is also capable of addressing discrimination against a group of women that places them in a less favourable position than other women, here discrimination against transgender women, which places them in a less favourable position than cisgender women. For the reasons that follow, and without any assistance from the submissions by the respondents, I do not accept that CEDAW supports the prohibition on gender identity discrimination in s 22 in the way it is relied upon by the Ms Tickle here, namely, discrimination that placed her in the same position as men, not a less favourable one. I start by making several observations about the text of CEDAW.
164 As is evident from its name, the CEDAW is concerned with the elimination of discrimination against women. Article 1 defines discrimination against women, a concept deployed throughout the Convention, as
any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
165 Notably, that definition is concerned with sex discrimination against women, not sex discrimination in general: AB v Registrar of BDM at [81] (Kenny J, Gyles J agreeing); Patricia Schulz, Ruth Halperin-Kaddari and Beate Rudolf, 'Introduction' in Patricia Schulz, Ruth Halperin-Kaddari, Beate Rudolf and Marsha A. Freeman (eds), The UN Convention on the Elimination of All Forms of Discrimination Against Women and its Optional Protocol: A Commentary (Oxford University Press, 2022, 2nd ed) 1, 13.
