Australia’s ‘What Is a Woman?’ Case: Tickle v Giggle

Australia’s ‘What Is a Woman?’ Case: Tickle v Giggle

By Rachael Wong

A judge of the Federal Court of Australia is currently deliberating on Australia’s “what is a woman?” case: Tickle v Giggle. This is a pivotal moment for women’s rights in Australia as it will determine whether gender identity trumps biological sex under Australian sex discrimination law.

The case centers on a complaint made by a trans-identified male (i.e. a man who identifies as a woman, also known as a “transwoman”), Roxanne Tickle, against the women-only social networking app, Giggle for Girls. Tickle alleges that his exclusion from the app, which was created exclusively for women by its founder and CEO, Sall Grover, constitutes gender identity discrimination under Australia’s Sex Discrimination Act 1984 (Cth) (SDA).

The case was heard in Sydney, Australia, from April 9 to 11, 2024, and the parties are currently awaiting the judge’s decision as of the publication date of this article. While the case involves several issues, this article specifically addresses the parties’ central disagreement over the definition of “woman” in the SDA.

Sex Discrimination Law in Australia

Australia’s SDA was enacted to fulfill the country’s obligations as a signatory of the international Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which condemns any distinction, exclusion, or restriction made against women on the basis of sex.

In 2013, under the leadership of Julia Gillard, Australia’s first and only female Prime Minister to date, the Australian government amended the SDA by deleting the sex-based definitions of man and woman and expanded protections to include gender identity, sexual orientation, and intersex status. As a result, biological sex was no longer the defining characteristic of a woman, extending rights to men who identify as women based on gender identity. Mark Dreyfus, the Attorney-General at the time, oversaw these amendments and holds the position again today, raising major concerns about the ongoing protection of sex-based rights for women under the current Labor government.

The 2013 amendments have caused confusion and uncertainty regarding the status of women’s sex-based rights in Australia. This has culminated in the current situation where biological males who have lawfully altered their birth certificate from male to female and claim to “legally and morally be a woman” can now claim discrimination under legislation which was intended to protect biological females.

Gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.

Definition of ‘gender identity’ inserted into Australia’s SDA in 2013

Tickle's Case

Tickle claims to be a victim of discrimination based on gender identity. The core of Tickle’s case is that he asserts to be a woman who has experienced discrimination by being excluded from the Giggle app because, as a “transgender woman,” he is being treated differently than “cisgender women.” Tickle’s lawyers maintain that he is a woman, as evidenced by his updated birth certificate which identifies his gender as female, his completion of gender-affirming surgery, his womanly presentation, his use of a woman’s name, and feeling psychologically like a woman.

While Tickle’s legal team did not contest the expert testimony of Dr. Colin Wright, who explained why biological sex in humans is binary and immutable, they argued that Australian law recognizes the categories “sex,” “gender,” “man,” and “woman” as mutable and non-binary. Further, they posited that under the SDA, the definition of “woman” extends beyond biological considerations and now includes men who claim to be women.

When one undergoes a gender transition, there’s various parts to that. There’s a hormonal aspect. So I took testosterone blocker and oestrogen and progesterone which induced second puberty and that changed my body. My voice not, unfortunately, but most other parts of my body. Surgical aspect to that, I had gender affirmation surgery, specifically vaginaplasty and labiaplasty. Social transition. So I told all my friends and family, I told my workplace, I dealt with all of the government departments and changed my gender or sex marker with all of those. And there’s a grooming and appearance aspect to that as well. So I started shopping from the female side of clothing stores and I spent a lot of time and a lot of money working on removing my facial hair, which is still ongoing, unfortunately, but I’m nearly there. And I’m also the–on a practical level, using female changing rooms and female–I now play in a women’s hockey team where I live. So I basically–up until very–up until this instance, everybody has treated me as a woman.

Roxanne Tickle’s evidence to the court about how he has lived as a woman since 2017.

Giggle's Case

Giggle denies having discriminated against Tickle because the Giggle app was created for women and Tickle is not a woman. Giggle relies on a biological definition of a woman as a member of the female sex, while maintaining that “gender” is a social construct. A good or service reserved exclusively for women does not constitute discrimination when it is for the purpose of promoting equal opportunities for women in public life. 

Giggle’s barrister Bridie Nolan explained to the court the app was developed by CEO Sall Grover following her personal experiences with sexual assault and harassment. Her desire was to create a safe, female-only online space. To that end, the app used AI to to determine a user’s sex based on their profile photo. It was calibrated to 94 percent accuracy to ensure no females, including transmen (i.e. biological females identifying as men) would be excluded.

In addressing claims of discrimination under the SDA, Ms. Nolan argued that the SDA’s implementation of CEDAW has been and always will be to acknowledge and rectify the disadvantages historically borne by women due to their biological sex. Giggle’s legal team contends that biological sex must prevail in cases when it conflicts with gender identity.

The more troubling and insidious aspect of [Tickle’s] evidence is that there is a sense of entitlement to enter places where people of the male sex should not go, and, in fact, in my submission, what lurks behind what I say is self-serving, but self-refuting evidence is the fact that proves incontrovertibly that the applicant does not have the psychology of a woman….

When a woman, biologically born and always so, whether she has her reproductive organs removed, whether she may think she’s a male or not, walks through a dark park in the middle of the night and hears the footsteps of a male behind her, she does not stop to think, “I wonder which side of Kmart this person shops on? I wonder, have they had their facial hair removed? I wonder, have they told people in their workplace whether they’re a woman or not?” She doesn’t do that. She doesn’t stop for one second except just hearing what she perceives, by virtue of her sexed embodiment, to be a threat. 

She laces her fingers around her keys. She laces the dog leads around her wrist or her fist. She does–she takes–she speeds up; that is the psychology of the sex-embodiment of a woman. And if a man were to truly have the psychology of a woman, in my submission, they would know that, and they wouldn’t enter those spaces, and it’s for that reason that your Honour would not find that, by entering spaces that women psychologically fear men who appear to be men enter, that it just proves that this applicant lacks the psychology of a woman, and is, thereby, not a woman, but he is a man. 

Submissions made to the court by Giggle’s barrister, Bridie Nolan

Submissions Made by Australia's Sex Discrimination Commissioner

Australia’s Sex Discrimination Commissioner is not a party to the case but is participating as an amicus curiae, or “friend of the court.” The role of an amicus curiae is to provide the court with expertise and insight on specific legal or factual issues within a case.

The Commissioner contends that the Giggle app is discriminatory. Specifically, the Commissioner asserts that transwomen are both members of the female sex and women for the purposes of the SDA. In other words, men who identify as women have the same rights and protections as biological females, and it is illegal to distinguish between them.

In court, the Commissioner's barrister, Zelie Heger, said that sex is not a binary concept and refers to being a man, a woman, or neither. Further, she insisted that sex is not an exclusively biological concept and that other physical, psychological, or social factors may be relevant.

Cross-Examination of Sall Grover

On the first day of the proceedings, Tickle only gave brief testimony about the ways in which he claims to have lived as a woman since 2017 (see quote above above). Notably, Tickle was not cross-examined by Giggle’s legal team, and Tickle’s legal team appeared to become quite flustered when Ms Nolan opted not to cross-examine him.

On the second day, Sall Grover underwent extensive cross-examination regarding her tweets, fundraising efforts, and media comments about the case. Tickle’s barrister, Georgina Costello KC, repeatedly suggested that Ms Grover was “not kind” for misgendering Tickle by calling him a man and not proactively stopping others from not being “nice” regarding Tickle. These accusations were apparently intended to bolster Tickle’s claim for aggravated damages.

Ms. Costello’s approach suggested that Ms. Grover should unquestioningly affirm Tickle’s female gender identity and cede her beliefs and rights in favour of his. In other words, she should be an agreeable woman. No one in the proceedings suggested at any point that it might “kind” or “nice” for Tickle to consider leaving the app voluntarily to allow Ms Grover to fulfill her dream of creating an online refuge for women and enable other women to benefit from using it. Since Tickle’s discrimination complaint, the Giggle app has been inactive, disadvantaging many women, as detailed in affidavits presented in court.

While this cross-examination of Sall Grover appears sexist, misogynistic, and unfair, it is perhaps not surprising in the context of a case that seeks to prioritize sex stereotypes and subjective feelings over biological reality and objective fact.

Applying The Law as it Exists, Not What it Should be

On the first day of the three-day hearing, the presiding judicial officer, Bromwich J, stated that he would be interpreting and applying the law as it exists instead of what it should be. This comment hints at three things.

First, it highlights the fundamental disagreement between the two parties regarding sex and gender identity under the SDA. Indeed, Tickle’s case is based on the premise that, under Australian law and specifically within the context of the SDA, men can become women. Moreover, while biological sex is considered relevant to womanhood, it is not deemed determinative. Conversely, Giggle argues that, for the purposes of the SDA, men cannot be considered women because it implements CEDAW, which understands sex as a biological category and international law does not permit any derogation to the prohibition on discrimination against women based on sex.

Second, the judge’s statement suggests that the dispute between the parties is ideological. This is partly true. Tickle’s position, that men can be women, stems from a belief in gender identity ideology. On the other hand, Giggle’s position is anchored in the biological reality of the sex binary and the imperative to uphold women’s sex-based rights.

Third, the judge’s statement infers that he will decide the case according to the SDA as it currently stands, which includes the 2013 amendments. This may ultimately require having to accept the arguments put forward by Tickle and the Australian Sex Discrimination Commissioner that gender identity trumps biological sex. This would mean that biological males identifying as women could not be denied access to female-only spaces. While absurd and irrational on its face, this decision would nevertheless align with the current version of the SDA.

What Comes Next?

It is likely that any judgment in favor of Tickle will be appealed to Australia’s High Court. This appeal would likely be based on a Constitutional argument that the Australian government overstepped its authority with the 2013 amendments to the SDA by exceeding the scope of CEDAW.

However, the simplest solution for the Australian government to address the current legislative uncertainty would be to repeal the 2013 amendments to the SDA and restore sex-based rights for women in Australia. Removing gender identity as a basis for discrimination in the SDA is not an act of “transphobia,” nor is it intended to harm or erase transgender individuals, as many activists assert. Rather, it is about about reinstating vital sex-based protections for women, acknowledging the immutable biological differences between males and females, and the inequalities stemming from those differences.

Instead of insisting that biological males with a transgender identity are recognized as women, society, governments, and lawmakers should seek to resolve any tension between the rights of transgender identifying males and biological females in a nuanced and respectful manner. This approach should honor all human rights while preserving the dignity, autonomy, and safety of women and girls. As Giggle’s legal team eloquently stated in their written submissions to the court: “… females are the class of persons who are vulnerable to male violence by reason of their sex regardless of their gender role, gender identity, or sexual orientation.”

Rachael Wong is the CEO of Women's Forum Australia

Originally published on Dr. Colin Wright's Substack 'Reality's Last Stand' on 2 July 2024.

Women’s Forum Australia is an independent think tank that undertakes research, education and public policy advocacy on issues affecting women and girls, with a particular focus on addressing behaviours and practices that are harmful and abusive to them. We are a non-partisan, non-religious, tax-deductible charity. We do not receive any government funding and rely solely on donations to make an impact. Support our work today.

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