discrimination claims (a point that seems to be correct, but does not require adjudication in these reasons).
54 Ms Tickle's position remains that she alleges gender identity discrimination on the specific basis that she is a transgender woman, and thus a woman. Her case is brought relying upon s 5B of the SDA, not s 5, because the discrimination complained of resulted in her, as a transgender woman, being treated less favourably than a cisgender woman. She alleges that being removed from the Giggle App on the basis of her gender identity as a transgender woman does not in any way pertain to the treatment of a man, which is the concern of s 5. It is therefore necessarily no part of her case that she was discriminated against as or compared to a man, a point of importance when it comes to the role of CEDAW in supporting the gender identity discrimination provisions in the way that she seeks to rely upon them, via the external affairs power in s 51(xxix) of the Constitution.
55 On the proper construction of s 5, the Commissioner submits, and I accept, the following propositions grounded in logic and long-standing authority. First, sex is not confined to being a biological concept referring to whether a person at birth had male or female physical traits, nor confined to being a binary concept, limited to the male or female sex, but rather takes a broader ordinary meaning, informed by its use, including in State and Territory legislation.
56 Secondly, and accordingly, sex can refer to a person being male, female, or another non-binary status and also encompasses the idea that a person's sex can be changed, citing Secretary, Department of Social Security v SRA (1993) 43 FCR 299 at 304–305 (Black CJ), 325 (Lockhart J), and 328 (Heerey J, agreeing with Black CJ and Lockhart J); noting that SRA was cited with approval by the Full Court of the Family Court in Attorney-General (Cth) v Kevin and Jennifer [2003] FamCA 94; 172 FLR 300 at [211]–[224], [374]–[375]; and referring also to AB v Registrar of BDM at [4] (Black CJ, dissenting, though not on this point).
57 Thirdly, for the purposes of the SDA, the determination of the sex of a person may take into account a range of factors, including biological and physical characteristics, legal recognition and how they present themselves and are recognised socially.
58 Fourthly, although the relevant portion of s 5 of the SDA was not altered by the 2013 SDA Amendment, it must be read in context of the changes that were made: Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453, 463 (Brennan CJ, Dawson and Toohey JJ), 479 (McHugh and Gummow JJ); see also the discussion in Thomas Prince and
