Today, the Tickle v Giggle case begins its four day hearing in the Federal Court, and it's not only the parties to the case who are on trial.
Key takeaways
• In Tickle v Giggle, a man who identifies as a woman, is claiming discrimination after being removed from a women-only app.
• This case tests the validity of amendments made by the Australian Government in 2013 to the Sex Discrimination Act to remove biological sex as the defining characteristic of a woman and introduce the fluid concept of gender identity.
• The Sex Discrimination Commissioner agrees with Tickle that his removal from the app was discriminatory and is making submissions to the court which prioritise gender identity over women’s sex-based rights.
• The Sex Discrimination Commissioner’s submissions to the court make the meanings of sex and gender identity virtually indistinguishable, ignoring biological reality.
• The expert opinion of the UN Special Rapporteur on violence against women and girls is that the intention and objective of the Convention on the Elimination of All Forms of Discrimination Against Women, which the Sex Discrimination Act implements, is to protect biological females, and the word ‘woman’ means a biological female.
• The Sex Discrimination Commissioner is failing in her role to respect and uphold the purpose and intent of the Sex Discrimination Act and the Convention on the Elimination of All Forms of Discrimination Against Women to protect biological females.
• Women have fewer rights and protections under the Sex Discrimination Act in 2024 that we had prior to the 2013 amendments.
• The 2013 amendments to the Sex Discrimination Act should be repealed.
Background
In Tickle v Giggle, a trans-identified male (i.e. a man who identifies as a woman, also known as a ‘transwoman') is claiming discrimination based on gender identity after being excluded from Gold Coast businesswoman Sall Grover's women-only social networking app, Giggle for Girls.
Roxy Tickle, a biological male, was removed from using the Giggle app which was made to create a safe online space for women to connect, network and even date. Tickle claims his removal constitutes discrimination under the Sex Discrimination Act 1984 (Cth) (SDA).
The SDA was enacted to implement Australia’s obligations under the 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.
Australia’s Sex Discrimination Commissioner, Dr Anna Cody (pictured below), is taking part in the proceeding as amicus curiae. An amicus curiae is a ‘friend of the court’, whose role is to assist the court on matters of law or fact in a particular case. The Commissioner sought leave to appear in the case because it is the first time a court will consider the meaning and constitutional validity of amendments made in 2013 to the SDA to delete the sex-based definitions of men and women and include gender identity. Those amendments removed biological sex as the defining characteristic of a woman and created rights for men who identify as women based on gender identity.
So, what is the Sex Discrimination Commissioner saying to the court in this case?
The Commissioner’s position is that the Giggle app is discriminatory. In written submissions dated 10 August 2023 which are publicly available on the Federal Court’s website, the Commissioner argues 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.
The Commissioner offers very similar definitions for sex and gender identity which ignore biological reality and argues that even if the Giggle app is a special measure to achieve substantive equality between men and women, it is still discriminatory on the basis of gender identity.
Brazenly, the Commissioner submits to the court “that the ordinary meaning of “women” in CEDAW includes trans women.”
What does this case mean for women?
This case means that, according to the Sex Discrimination Commissioner, women cannot deny men who claim to be women access into their spaces.
This case illustrates the devastating real-world ramifications of removing a sex-based definition of woman in the SDA, distorting the meaning of sex and preferencing gender identity.
By denying the reality of sex and merging it with a fluid concept of gender identity, the rights and interests of biological females are erased in favour of the rights and interests of a subset of men, being transwomen. It makes a mockery of women and the legal, historical and social underpinnings of the SDA and CEDAW.
This case highlights not only the failings of the Gillard Government that made the 2013 amendments to the SDA, but also those of our current Sex Discrimination Commissioner whose duty should be to properly uphold the SDA, CEDAW and women’s sex-based rights.
The Sex Discrimination Commissioner’s submissions: meanings of ‘sex’ and ‘gender identity’ and whether the Giggle app is a special measure to achieve substantive equality between men and women
Sex and gender identity
Sex is not defined in the SDA. Women and men used to be defined in the SDA by reference to the female sex and male sex respectively, but these definitions were removed in 2013.
In addressing the meaning of sex in the SDA today, the Commissioner puts forward a broad, unscientific definition:
“… the word “sex” is not a biological concept referring to whether a person at birth had male or physical traits. Nor is it a binary concept, limited to the “male” or “female” sex…. “Sex” can refer to a person being male, female, or another non-binary status. It is also broad enough to encompass the idea that a person’s “sex” can be changed.
Whether a person is of a particular “sex” for the purposes of the SDA may take into account a range of factors, which may include their biological and physical characteristics, whether they are legally recognised as that sex under State and Territory law, as well as how they present themselves and are socially recognised.”
In short, the Commissioner asserts that a person’s sex is not necessarily defined by biology, physicality or even legal status and it is changeable.
In relation to the meaning of gender identity in the SDA – which was inserted into the Act in 2013 – the Commissioner says this is not determined by biological or physical factors but refers to how a person identifies and appears in society.
The Commissioner states that gender identity is a different concept to sex, but it is not apparent from her submissions what this difference is given the similar and nebulous meanings ascribed to both.
Special measures
The SDA allows for special measures to achieve substantive equality between men and women which do not constitute unlawful discrimination. According to its creator, the Giggle app is a special measure. Before the rise of gender ideology, a female-only networking app would have been an obvious and uncontroversial special measure under the SDA.
However, the Sex Discrimination Commissioner submits in this case that the meaning of women in the SDA includes transwomen. Further, even if the Giggle app is a special measure to achieve substantive equality between men and women, the Commissioner argues that excluding a transwoman could still constitute gender identity discrimination.
The upshot of the Commissioner’s submissions? Women cannot have female-only spaces as special measures to achieve substantive equality between men and women that exclude trans-identified males.
Perversely, by the Commissioner’s logic, it would appear to be acceptable and non-discriminatory for a transwoman to create an app that excludes biological women if it is a special measure to achieve substantive equality between people who have different gender identities.
The Sex Discrimination Commissioner is failing in her role
The Sex Discrimination Commissioner is one of seven commissioners making up the Australian Human Rights Commission whose role is to protect all human rights.
According to the Australian Human Rights Commission’s website, the role of the Sex Discrimination Commissioner is to advance gender equality, consistent with the SDA and CEDAW.
Given this role, it would be reasonable to expect the Sex Discrimination Commissioner to have a rational and scientific view of the meaning of key concepts including sex, male, female, woman and man. Such a view would recognise the fact that sex is determined genetically at conception, not designated or assigned at birth. It would also be honest about the reality of two sexes – male and female – rather than pretending that there is a vast array of sexes and that people can change their sex at will. As amicus curiae in Tickle v Giggle, the Commissioner should be able to clearly articulate these concepts to the court.
A Sex Discrimination Commissioner with a proper appreciation of, and respect for, the legal, historical, and social underpinnings of the SDA and CEDAW would also maintain and strengthen women’s sex-based rights, rather than ceding them in favour of a subset of men, being transwomen.
An honest Sex Discrimination Commissioner would grapple openly with any tension between protecting and promoting the rights and interests of trans-identified males compared to those of women’s and seek to find reasonable and fair solutions while upholding women’s sex-based rights.
But there is no acknowledgement in the Commissioner’s submissions of scientific reality or the need to balance competing interests. The submissions instead double down on the 2013 amendments to the SDA which erased biological reality and women’s sex-based rights.
Given that Australia’s Sex Discrimination Commissioner does not appear to believe in the reality of sex, perhaps we should be calling her the Gender Identity Commissioner?
Submission from the UN Special Rapporteur on violence against women and girls
The UN Human Rights Council appoints experts as Special Rapporteurs who work voluntarily and independently to investigate and report on human rights issues and hold member states to account.
The Special Rapporteur on violence against women and girls, Reem Alsalem, says that in March 2024 she sought leave to appear in Tickle v Giggle as amicus curiae but was refused because her application was made late. This technical refusal by the Federal Court is interesting in light of Tickle being allowed a significant extension of time to bring his case to court.
The Special Rapporteur says she was asked instead to provide input to the Australian Human Rights Commission on the meaning of ‘woman’ in CEDAW.
Ms Alsalem addresses the history, intention and objective of CEDAW and is unequivocal in her submission: a woman is a biological female and sex and sex-based discrimination is understood by reference to biological categories of male and female.
In relation to the intermingling of ‘sex’ and ‘gender’ in more recent years, the Special Rapporteur states:
“… it is clear that sex and gender are two different concepts. However, international law does not permit any derogation to the prohibition on discrimination against women based on sex. Where tension may arise between the right to non-discrimination based on sex and non-discrimination based on gender or gender identity, international human rights law does not endorse an interpretation that allows for derogations from the obligation to ensure non-discrimination based on sex or the subordination of this obligation not to discriminate based on sex to other rights.”
These comments about the non-derogability of women’s sex-based rights are critical. They mean that in prioritising gender identity over sex, the Sex Discrimination Commissioner’s approach is contrary to international human rights law, and the 2013 amendments to the SDA are arguably in breach of Australia’s non-derogable international human rights obligation to protect women’s sex-based rights.
In short, the Special Rapporteur has done the job that our Sex Discrimination Commissioner should have done by drawing a clear distinction between sex and gender identity and confirming that CEDAW deals with the former. It will be interesting to see how the Commissioner deals with this in court.
Where to from here?
While Tickle v Giggle plays out in the Federal Court from 9-12 April, we trust that the judge’s reason and common sense will not be swayed by circular arguments of gender ideology but remain true to the purpose of the SDA and CEDAW to protect women’s sex-based rights.
If not, it is likely this case will end up in the High Court as Giggle argues that the Australian Government did not have the constitutional power to make the 2013 amendments.
In the meantime, the Australian Human Rights Commission continues elsewhere to pursue a trans rights agenda and silence people questioning the appropriateness of prioritising gender identity over sex.
Members of the public and Federal Parliament should:
• Demand answers from the President of the Australian Human Rights Commission and the Sex Discrimination Commissioner as to why they are failing to protect the sex-based rights of women and girls.
• Seek the repeal of the 2013 amendments to the SDA which undermine the sex-based rights of women and girls; and
• Refuse to cave into gender ideology at the expense of the safety of women and girls.
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