Next week, Giggle CEO Sall Grover will head to the Full Federal Court in Sydney for round two of what has thus far been a four-year-long nightmare and fight to restore the sex-based rights of women and girls in Australia.
The Giggle v Tickle appeal will be heard from 4–7 August, involving an appeal by Giggle against a finding of indirect discrimination in August last year, and a cross appeal by Roxanne Tickle, a man who claims to be a woman.
Since Justice Bromwich ruled that “sex is changeable” in Tickle v Giggle last year, the world has moved on significantly from the clutches of gender identity ideology. US President Donald Trump has issued executive orders restoring women’s sex-based rights to female-only spaces, services and sports, and in a landmark ruling, the UK Supreme Court ruled that the legal definitions of ‘woman’ and ‘sex’ are biological.
But will our own courts deliver a just and sensible ruling this time round?
Let’s recap the judgment in Tickle v Giggle before the Giggle v Tickle appeal next week.
Key takeaways
- A man who identifies as a woman won a claim of gender identity discrimination in Australia’s Federal Court after being removed from a women-only social networking app.
- The judge decided that men who identify as women (transwomen) are members of the female sex and are people with a gender identity for the purposes of Australia’s Sex Discrimination Act meaning they cannot be excluded from women’s spaces.
- Australian law is so infected by gender identity ideology that biological sex is all but erased.
- A win in Giggle v Tickle would be a huge win for women's sex-based rights in Australia. However, while Tickle v Giggle may be overturned on appeal, legislative reform is desperately needed to set the record straight on biological reality and clarify women’s legal sex-based rights.
- Please add your voice to Women’s Forum Australia’s call to the Prime Minister, Premiers and Chief Ministers to restore the sex-based rights of women and girls across Australia.
Background and summary of the Federal Court’s decision
In the Australian case of Tickle v Giggle, a man who identifies as a woman, Roxanne Tickle, won a claim of discrimination after being removed from a women-only social networking app, Giggle for Girls.
The case was heard in the Federal Court from 9 to 11 April 2024 and the judge handed down his decision on 23 August 2024. In summary, Justice Bromwich decided that:
- Tickle was indirectly discriminated against under the Sex Discrimination Act 1984 (Cth) (SDA) based on gender identity.
- Direct discrimination was not made out because the respondents did not know Tickle’s gender identity when he was removed from the app. The judge accepted evidence given to the court that Tickle would have been removed upon inspection of his photo in the same way as any other man. If the respondents had been aware of Tickle’s gender identity, then direct discrimination may have been established.
- Indirect discrimination was made out because usage of the app required a person to have the appearance of a ‘cisgender’ woman (i.e. an actual woman), which Tickle did not, and so he was treated less favourably.
- The amendments made to the SDA in 2013 to include protection of gender identity are valid as an enactment of Australia’s obligations under article 26 of the International Covenant on Civil and Political Rights (ICCPR). Article 26 broadly prohibits discrimination on any ground “or other status” which includes gender identity.
- The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was not engaged because Tickle’s complaint was about gender identity discrimination, not discrimination in favour of a man or men.
The court awarded Tickle $10,000 in damages and payment of his legal costs (extraordinarily awarded in part due to an involuntary laugh by Ms Grover during the hearing).
Giggle filed an appeal to the Full Federal Court on 1 October 2024 maintaining that the ruling contains serious legal errors, including a misinterpretation of the legal definition of “sex” under the SDA, a failure to recognise the Giggle App as a lawful “special measure” under the SDA, and a disregard for critical evidence and expert testimony. Tickle has cross appealed seeking a ruling in favour of direct discrimination and further damages.
What does the court’s decision mean for women?
The consequences of this case for Australian women are startling: Men who identify as women have greater protection under the SDA than actual women. This is because, according to Justice Bromwich, a man who identifies as a woman is both a member of the female sex and a person with a gender identity for the purposes of the SDA.
This decision means that biological women (the only kind) cannot have spaces that exclude men who identify as women unless existing exemptions in the SDA apply (for example, sections 7B and 7D). However, the judge’s reasoning in his decision appears to make it difficult for the exemptions to apply.
How did we get here?
How did Australian law arrive at a situation where the rights of men who claim to be women take precedence over the rights of actual women? The answer is twofold.
First, all Australian states and territories have passed legislation allowing people to alter the sex recorded on their birth registration, irrespective of so-called 'gender affirmation' surgery. Tickle has an updated Queensland birth certificate showing his sex as female. This enabled the judge to conclude that Tickle is a member of the female sex for the purposes of the SDA.
In referring to expert evidence provided to the court by Dr Colin Wright that there are only two biological sexes and people cannot change sex, Justice Bromwich stated:
“While I have read Dr Wright’s report, it does not assist me in deciding this case. It is not my role in forming a judgement about the issues in dispute, and the relevant law, to have regard to the evolutionary or biological definitions or features of human sex. That is because, as I have already found, the legal definition of a woman (or a man) is not so confined. It is therefore outside my purview to consider, far less determine, the general nature of biological sex. The science behind that evidence is not, as far as it goes, in dispute. It is just that the issues in this case involve wider issues than biology.”
Second, the SDA was amended in 2011 and 2013. Originally enacted in 1984 to implement Australia’s obligations under CEDAW which condemns any distinction, exclusion or restriction made against women on the basis of sex, the SDA was amended in 2011 to include reference to “other relevant international instruments”, including the ICCPR. The SDA was also amended in 2013 to remove the definitions of ‘man’ and ‘woman’ as members of the male and female sex respectively, and include additional protections for sexual orientation, gender identity and intersex status. Gender identity is defined as: “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.” In effect, the SDA was fundamentally altered, undermining its core purpose in protecting and promoting women’s sex-based rights.
It should be noted that there is no international human rights agreement that deals specifically with gender identity, and Australia has not signed any such agreement.
The confusion in Australian law caused by gender identity ideology
In reaching his decision the judge relied substantially on submissions made to the court by Australia’s Sex Discrimination Commissioner who participated in the proceeding as amicus curiae (a ‘friend of the court’). The Sex Discrimination Commissioner’s submissions were looked at in detail in a previous Women’s Forum Australia article. In short, the Commissioner agreed with Tickle that his removal from the app was discriminatory. The Commissioner argued that men who identify as women are both members of the female sex and women for the purposes of the SDA and put forward very similar definitions for sex and gender identity which minimise the relevance of biological reality.
Alarmingly, the Sex Discrimination Commissioner and the Federal Court both completely ignored a position paper provided for the purposes of the hearing by the UN Special Rapporteur on violence against women and girls, Reem Alsalem. In that paper, Ms Alsalem clearly and cogently explained that, under CEDAW, a woman is a biological female and sex and sex-based discrimination is understood by reference to biological categories of male and female. In his decision, the judge sidesteps any consideration of CEDAW by stating that the gender identity amendments were validly made as an enactment of Australia’s obligations under the catch-all “or other status” provision of the ICCPR.
This is the court’s fundamental error in its decision: its refusal to acknowledge any relevance to the case of biological, sex-based rights.
In relation to the 2013 amendments, the judge states:
“The changes were overt and deliberate. They included not just the introduction of the gender identity discrimination provisions, but also the change of all references to “the opposite sex” to “a different sex” and the repeal of the definitions of “man” and “woman”…. Those amendments all point forcefully to an understanding of sex, as it is deployed in the SDA, that is changeable and not necessarily binary….
That conclusion is fortified by the 2013 SDA Amendment’s Explanatory Memorandum, which emphasises:
These definitions are repealed in order to ensure that ‘man’ and ‘woman’ are not interpreted so narrowly as to exclude, for example, a transgender woman from accessing protections from discrimination on the basis of other attributes contained in the SDA.
Those observations were not merely aspirational, but accurately reflect the changes to the SDA that were made and therefore supports the interpretation that the Commissioner contends for.”
The court was swept up in the wave of gender identity ideology and forgot that interpreting the words of a statute requires careful consideration of its text, context and purpose, having regard to relevant extrinsic material. It is by no means obvious from the words of the SDA or the Explanatory Memorandum that the legislature intended to completely erase biological, sex-based rights, or for gender identity to override those rights in cases of conflict.
For example, the Explanatory Memorandum states in relation to the new definition of ‘gender identity’ that: “‘Gender’ is used in this definition rather than ‘sex’ as it is a different concept, understood to be part of a person’s social identity (rather than biological characteristics).” This clearly shows the legislature’s intention to retain the distinction between biological sex and gender identity.
Further, the Explanatory Memorandum states, upon repeal of the definitions of ‘man’ and ‘woman’, “they will take their ordinary meaning.” Justice Bromwich decides that this entails “a broader ordinary meaning, informed by its use, including in State and Territory legislation.” But he fails to consider the real possibility, informed by the text, context and purpose of the SDA, as well as the Explanatory Memorandum, that the ordinary meanings of ‘man’ and ‘woman’, at least in some sections of the SDA, still refer to the biological categories of male and female.
Indeed, the Australian Human Rights Commission’s own position on the issue appears to have shifted since publication of its 2011 consultation report, ‘Addressing sexual orientation and sex and/or gender identity discrimination’, which informed the 2013 amendments to the SDA. That report defines ‘sex’ as “a person’s biological characteristics”. This goes to show how radical gender identity ideology in the Australian Human Rights Commission in just the past ten years is contributing to dangerous confusion in Australian law.
The fight to win back women’s sex-based rights
Overall, the pervasive theme of the judgment is the dismissal and marginalisation of women’s sex-based rights. The judgment reduces biological women to a sub-category of women by comparison to a tiny percentage of men who claim a different gender identity. It also forces biological women to have a gender identity – ‘cisgender’ – even if they do not want or believe in a gender identity. This is classic sexism, misogyny and patriarchy. While perhaps considered progressive for trans and gender diverse people, the 2013 amendments to the SDA and the way they are currently being interpreted by the Sex Discrimination Commissioner and the Federal Court is regressive and harmful to biological women. A better balance must be drawn that acknowledges and respects all human rights.
It remains to be seen whether women’s sex-based rights have in fact been erased in Australian law, as per the judgment in Tickle v Giggle last year, or whether our laws have been interpreted inaccurately, with such an interpretation being cheered on by activists. Either way, activist-driven laws and policies have in practice resulted in women’s sex-based rights being significantly eroded in Australia, with women and girls being forced to compete against biological males in sport and female inmates being housed with male rapists in women’s prisons (to name just a couple of examples).
A win in Giggle v Tickle would be a huge win for women's sex-based rights in Australia. However, while Tickle v Giggle may be overturned by the Full Federal Court or High Court, legislative reform is desperately needed to set the record straight on biological reality and clarify women’s legal sex-based rights. This includes women’s rights to single-sex spaces which existed in law prior to the elevation of gender identity in law and society. This is why Women’s Forum Australia is campaigning to restore women’s sex-based rights. Sign the petition calling on the Prime Minister, Premiers and Chief Ministers to restore the sex-based rights of women and girls in laws and policies across Australia.
You can support the appeal here.
**The hearing will be live streamed on the Federal Court’s YouTube Channel. Those watching the live stream are bound by the same rules as the people in the courtroom, which means NO photos or filming (including screen recording) and NO posting images or footage to social media. Anyone who breaks these rules can be held in contempt of court.
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.
| I’ll stand with women ▷ |