73 Along with those amendments, references to the opposite sex were also replaced with references to a different sex. The Explanatory Memorandum notes that sex is not a binary concept, and that the new terminology was consistent with the protection of gender identity and intersex status, and so recognises that a person may be, or identify as, neither male nor female.
(b) Construction of gender identity and s 5B
74 As noted above, Ms Tickle treats it as straightforward that the term gender identity in the SDA can refer to a person's transgender identity and, accordingly, s 5B can refer to discrimination on the ground of being transgender.
Gender identity is identified broadly in s 4, as encompassing a person's gender-related identity, appearance or mannerisms or other gender-related characteristics, with or without regard to the person's designated sex at birth. That definition is plainly capable of referring to a person's transgender identity, which refers to the position where a person's current gender differs from their assigned sex at birth. That conclusion is fortified by the Explanatory Memorandum to the 2013 SDA Amendment Bill at [12], which clarifies that the definition is intended to apply to transsexual and transgender persons, and such express language was not used only to ensure it was not read in a limited way. The corollary to that is that gender identity can also refer to a person's status as cisgender, which is relevant in identifying a comparator with a different gender identity for the purposes of indirect discrimination as described in s 5B(2). The definition appears broad enough to encompass other kinds and aspects of gender identification, though it is not necessary to consider that issue further in these reasons.
75 The respondents' arguments barely engaged with the construction of s 5B, insisting that direct discrimination had occurred, not on a proscribed basis, but rather on the basis of Ms Tickle's sex, which they consider to be synonymous with her assigned sex at birth. That is a defence akin to claiming, as the Commissioner put it in general argument, rather than this case specifically:
I wasn't discriminating against that person on the basis of their gender identity. I discriminated against them on the basis of their biological conception.
76 As already outlined, the respondent's contention that Ms Tickle's claim was properly one of sex discrimination under s 5 misunderstands the meaning of the word "sex" in the SDA, and must be rejected. The gender identity discrimination provisions cannot be evaded by creating false distinctions that are not supported by any of the terms of the SDA, properly understood.
