change the sex marker on her birth certificate on the basis that only unmarried persons were allowed to make such applications, pursuant to s 30A of the Births, Deaths and Marriages Registration Act 1996 (Vic) (Registration Act). She argued that the decision was a contravention of the prohibition of discrimination on the ground of marital status under s 22 of the SDA.
172 Kenny J, with whom Gyles J agreed, found that neither the text of CEDAW, nor its preparatory works, supported the view that it created an obligation to prohibit discrimination on the basis of marital status per se, "or even as regards women where such discrimination does not involve less favourable treatment than men": at [90]. Relevant to that finding were observations that the consequence was that, by operation of s 9(4) and (10), s 22 was to be construed as only prohibiting discrimination on the basis of marital status that resulted in less favourable treatment of women than men: AB v Registrar of BDM at [95]–[96]. So construed, the Registrar's decision was not a contravention of s 22, as s 30A of the Registration Act discriminated against married men and married women equally. Whether the reference to "women" in the CEDAW included transgender women does not appear to have been a direct issue in AB v Registrar of BDM, despite the appellant, born male, having transitioned by surgery to female.
173 Some care must be taken in relying on AB v Registrar of BDM, which emphasises specific language in the Convention and preparatory work related to discrimination on the ground of marital status: see in particular [14], [89], [91]. Nonetheless, Kenny J's conclusions as to the meaning of "discrimination against women" in CEDAW, which are the result of careful analysis of the Convention's text and preparatory work (see [81]–[90]), are equally applicable to determining the general nature of the obligation to prohibit such discrimination against women created by the Convention. At [88], her Honour records the burden of particular debates between States Parties as to whether the CEDAW should be directed to sex discrimination in general, or specifically to discrimination against women. The latter view prevailed upon the basis of the argument by the United Kingdom that this might result in CEDAW covering discrimination against men, making it clear that the focus was to remain on eliminating discrimination against women in favour of men.
174 The Commissioner submits that AB v Registrar of BDM is not binding on this Court due to subsequent amendment to s 9(10). At the time it was decided, s 9(10) provided that the prescribed provisions had "effect in relation to discrimination against women, to the extent that
