In the first Australian case to test the application of the 2013 amendments to the Sex Discrimination Act 1984 (Cth), the Federal Court found that the Giggle for Girls App and its CEO, Sally Grover, indirectly discriminated against Roxanne Tickle, a transgender woman, when Ms Tickle was not permitted to use the platform.
In issue
- Roxanne Tickle, a transgender woman, alleged that Giggle For Girls Pty Ltd (the Giggle App) and Sally Grover, the founder and CEO of the Giggle App (the respondents), engaged in direct and indirect gender identity discrimination when she was excluded from using the Giggle App after Ms Grover assessed that she did not look like a cisgender female.
- The respondents challenged the constitutional validity of the gender identity discrimination provisions of the SDA and the validity of the provisions of the Birth Deaths Marriages Registration Act 1994 (Qld) (BDMRA) that allow a person to change their sex. As such, the court was required to consider whether the introduction of the gender identity discrimination protections inserted into the SDA went beyond the scope of Commonwealth legislative power.
- The respondents’ defence was that Ms Tickle was lawfully discriminated against on the basis of sex, which they considered to be male and unchangeable. The respondents also asserted that the Giggle App was a “special measure” that sought to achieve substantive equality between men and women.
The background
Ms Tickle was assigned the male sex at birth but began living her life as a woman from 2017. Ms Tickle underwent gender affirmation surgery in 2019, and her female sex was recognised by an official updated Queensland birth certificate in 2020.
In February 2021, Ms Tickle downloaded the Giggle App, a ‘women-only’ social networking platform. Ms Tickle registered for an account by uploading a ‘selfie’, which was assessed by an artificial intelligence software implemented by the Giggle App to determine whether a person was male (and if so, refuse them access to the Giggle App). The software accepted Ms Tickle’s ‘selfie’ and access was granted to the Giggle App.
In September 2021, Ms Tickle realised that her account had been restricted after Ms Grover examined her ‘selfie’ and then manually removed her access from the Giggle App. Ms Tickle attempted to contact the respondents on multiple occasions regarding the issue, however Ms Tickle did not regain her access to the Giggle App.
The decision at trial
It was found that the respondents engaged in unlawful indirect discrimination by imposing a condition on Ms Tickle to have the appearance of a cisgender woman in order to access the Giggle App.
Ms Tickle’s claim of direct discrimination was unsuccessful as the court found that the respondents were not aware of Ms Tickle’s gender identity. Rather, the court found that Ms Tickle’s exclusion was a byproduct of excluding those who were perceived as being men, by the use of visual criteria that failed to distinguish between cisgender men and transgender women.
The court found that the respondents’ constitutional arguments were unsuccessful and that the gender identity discrimination provisions in the SDA were valid because they are supported by s 51(xxix) of the Constitution (external affairs power) as an enactment of Australia’s obligations under Art 26 of the International Covenant on Civil and Political Rights (1966) (ICCPR). It was also found that the gender identity protections constitute a valid exercise of the Commonwealth’s corporations power (finding that the Giggle App was a trading corporation, and Ms Grover being its officer).
The court found that the BDMRA complements the gender identity discrimination provisions of the SDA, rather than conflicting with them, and that it is legally sufficient for Ms Tickle’s updated Queensland birth certificate to list her sex as female. The court also confirmed that sex, on its ordinary meaning, is changeable, as determined through a long history of cases decided by Courts going back over 30 years. The court also referred to the SDA Explanatory Memorandum, which emphasised that the purpose of repealing the definitions of ‘man’ and ‘woman’ was to ensure that transgender people were not excluded from accessing protections from discrimination.
The respondents’ argued that they engaged in lawful sex discrimination as it was a special measure exception under the SDA. The court found that this section of the SDA does not apply to Ms Tickle because the provision provides no protection from gender identity discrimination.
In light of the finding that indirect gender identity discrimination took place, a declaration to that effect was made and Ms Tickle was awarded $10,000 in compensation. The court also ordered that the respondents pay Ms Tickle’s costs. While no award was made for aggravated damages, the court condemned Ms Grover’s behaviour during the hearing for laughing at offensive material relating to Ms Tickle. The court stated that such behaviour had no legitimate place in prosecuting their case. The court did not order the respondents to give Ms Tickle an apology in circumstances where it would likely be insincere.
The respondents have filed a Notice of Appeal.
Implications for you
This is the first Australian case to consider discrimination on the basis of gender identity under the SDA and sets precedent which makes it unlawful to discriminate against transgender women in the context of women’s only spaces. The court confirmed that in order to establish direct gender identity discrimination, it must be proven that the discriminator had knowledge of the person’s gender identity. Further, indirect gender identity discrimination will be found if a condition is imposed which treats a transgender person less favorably than a cisgender woman. This includes circumstances where a transgender woman is barred access to a ‘women’s only’ service due to the requirement to have the appearance of a cisgender woman and the discriminator assuming that she does not look sufficiently female.
