such as race, age and gender identity. It proceeds to explain that women may experience discrimination on the basis of these other factors "to a different degree or in different ways to men". States Parties must recognise and prohibit these "intersecting forms of discrimination and their compounded negative impact on the women concerned". This is properly read as an acknowledgement that women experience heightened forms of various kinds of discrimination as compared to men, and encouragement that States Parties address these compounded forms of discrimination. It does not go so far as suggesting that the CEDAW obliges States Parties to address discrimination as between different groups of women. General Recommendation 28 at [19] reinforces the signature importance of achieving equality with men, by reference to the topic of violence and its disproportionate effect on women.
177 The Commissioner also pointed to several country-specific guidances by the CEDAW Committee that variously celebrated as progress steps taken to address discrimination against transgender women, and condemned countries for failing to take steps to address violence and discrimination directed to this group: CEDAW Committee, Concluding observations on Russian Federation, UN Doc CEDAW/C/USR/CO/7 (16 August 2010) at [41] and UN Doc CEDAW/C/RUS/CO/9 (30 November 2021) at [46]–[47]. This included a statement directed to Australia that the CEDAW Committee welcomed the progress achieved by the 2013 SDA Amendment, specifically citing the introduction of the gender identity discrimination provisions: CEDAW Committee, Concluding Observations on the eighth periodic report of Australia, UN Doc CEDAW/C/AUS/CO/8 (25 July 2018) at [49(e)]. None of these statements made clear how an obligation to address gender identity discrimination that did not result in less favourable treatment than men could fit with the definition of discrimination against women in Article 1. The assistance of the guidances on this question was minimal, providing broad assertions that certain action related to transgender women aligned or did not align with CEDAW, without explaining why.
178 I consider the reasoning of the Full Court in AB v Registrar of BDM (per Kenny J, Gyles J agreeing), to be binding authority on the interpretation of this aspect of CEDAW, and correct in any event. On that interpretation, assuming rather than deciding for present purposes that CEDAW is capable of supporting discrimination against a transgender woman at all, CEDAW can go only as far as supporting a prohibition on discrimination on the ground of gender identity where a transgender woman is treated less favourably than a man or men, which is plainly not the case relied upon by Ms Tickle. To the contrary, her objection is to being treated the same as men, not less favourably than them. Except for specific protections for pregnant women,
