law (the equality obligation), and to prohibit discrimination by operation of law (the non-discrimination obligation). No issue or dispute was raised in this proceeding that the non-discrimination obligation encompasses an obligation to address discrimination by private actors in the public sphere, as supported by commentaries of the Human Rights Committee, established under the ICCPR to supervise its progress, and the Convention's preparatory works: Human Rights Committee, General Comment 18: Non-discrimination, 37th sess (10 November 1989) at [12]; Human Rights Committee, General Comment 31: Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (29 March 2004) at [8]; Lord Lester and Sarah Joseph, "Obligations of Non-Discrimination", in The International Covenant on Civil and Political Rights and United Kingdom Law, David Harris and Sarah Joseph (eds) (Clarendon Press, 1995) 563, at 583 and fn 148, referring to views expressed by States Parties in the Third Committee of the UN General Assembly, 16th sess, 1098th meeting, UN Doc A/C.3/SR.1098 (9 November 1961) at [6] and [25]; Third Committee of the UN General Assembly, 16th sess, 1099th meeting, UN Doc A/C.3/SR.1099 (10 November 1961) at [2]; Third Committee of the UN General Assembly, 16th sess, 1101st meeting, UN Doc A/C.3/SR.1101 (13 November 1961) at [18] and [52].
184 The second observation is that Art 26 includes a non-exhaustive list of the sorts of personal characteristics protected by the dual equality and non-discrimination obligations. The nonexhaustive nature of that list is indicated by the words "any ground such as" preceding the listed characteristics, and the broad category of "or other status" at the end. That wording strongly indicates that Art 26 was intended to create an open-ended obligation to address kinds of discrimination that may change over time and or vary depending on the situations of States Parties: see, Human Rights Committee, Toonen v Australia, Communication No. 488/1992, UN Doc CCPR/C/50/D/488/1992 (31 March 1994) at [6.9]. Whether or not gender identity is a characteristic subject to the non-discrimination obligation under Art 26 is the subject of a dispute by Ms Tickle and the respondents, with the Commissioner's argument supporting Ms Tickle's position as a matter of construction.
185 It is convenient next to reproduce again the definition of gender identity in s 4 of the SDA, in order to understand the competing arguments that follow:
gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person's designated sex at birth.
