CEDAW does not support a prohibition on such discrimination which results in a woman or a class or group of women, however widely the word "woman" is understood, being treated less favourably than another woman, or other classes or groups of women, which is precisely what Ms Tickle's case relies upon.
179 The obligation to prohibit discrimination against women created by CEDAW and defined in Art 1 is specifically a reference to discrimination that places women in a less favourable position than men. Section 22, read with s 5B, is therefore incapable of being an implementation of this obligation to the extent that it could be relied upon by persons alleging (as Ms Tickle does) that they have been discriminated by being treated in the same way as men.
180 The consequence is that it is not necessary to consider whether the argument made by the Commissioner, and adopted by Ms Tickle, that references to women in CEDAW includes transgender women is correct. I note that questions of constitutional validity should ordinarily only be determined if they properly arise on the case that has been brought: LibertyWorks Inc v Commonwealth [2021] HCA 90; 274 CLR 1 at [90]. It follows that the question of whether references to women in CEDAW include transgender women must be left for a case in which this squarely arises for determination. What matters is that CEDAW, by its text, does not in any event support the case that Ms Tickle brings against the respondents.
Art 26 of the ICCPR
181 I now turn to the question of whether the gender identity prohibition in s 22 is instead supported by Art 26 of the ICCPR. The ICCPR comprises 53 Articles in six parts. A wide range of fundamental rights sought to be protected are set out in 22 articles in Pt III, which includes, in Art 26, equal protection under the law without discrimination. A general observation may be made that the terms of many of the rights referred to are expressed in terms that are far from precise, the detail being left to the implementing State.
182 The Commissioner contends the gender identity prohibition is supported by Art 26 specifically, which provides:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
183 Two preliminary observations can be made of the text of Art 26. The first observation is that Art 26 creates twin obligations for States Parties to ensure formal equality of persons under the
