can be compared. In this case, the comparator is self-evident: cisgender women. That enables the treatment of transgender women to be compared to the treatment of cisgender women by the application of the imposed condition as to appearance.
(c) The special measures exception to discrimination
81 Paragraph 1 of Art 4 of CEDAW provides:
Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.
82 Section 7D is the enactment of this part of CEDAW in 1995 as domestic law and, at the time it was inserted into the SDA, CEDAW was the only international instrument on which that Act relied as a source of Commonwealth legislative support. As such, construction of Art 4 of CEDAW was influential in relation to the construction of s 7D: see Jacomb v Australian Municipal Administrative Clerical and Services Union [2004] FCA 1250; 140 FCR 149 at [40]–[44]. Section 7D replaced the previous exception from discrimination created by s 33 for action taken to ensure "equal opportunities" for women, pregnant persons and people of a particular marital status, aligning the SDA's language more closely to that of Art 4.
83 While the SDA now relies upon a broader suite of international instruments, that source remains important for interpretive purposes, even if CEDAW itself is not, or cannot be, relied upon to support the gender identity discrimination provisions in this case due to the nature of the discrimination Ms Tickle alleges (see findings at Part 5(a)(i) below). The point of the special measures exception is to achieve not just the appearance of equality by treating people in the same way despite their lack of real equality in fact, but substantive equality to address underlying disparities. As Crennan J pointed out in Jacomb, at [44]:
A "special measure" as referred to in s 7D, and as construed by reference not only to the ordinary meaning of words repeated from the Convention [CEDAW], but also by reference to the context, object and purpose of the Convention [CEDAW] is one which has as at least one of its purposes, achieving genuine equality between men and women. The phrase "special measure" is wide enough to include, what is known as, affirmative action. A special measure may on the face of it be discriminatory but to the extent that it has, as one of its purposes, overcoming discrimination, it is to be characterised as non-discriminatory. …
84 It follows from the express text of s 7D(1), that to be a special measure, the conduct in question must be done for the purpose of achieving substantial equality, or in the language of paragraph 1 of Art 4 of CEDAW, accelerating de facto equality; that is, equality in fact.
