By Stephanie Bastiaan
This week women’s sex-based rights are going on trial in the Federal Court of Australia with the landmark case Tickle v Giggle.
Sall Grover, founder of the female-only networking app Giggle for Girls, is being sued for discrimination by male trans rights activist Roxanne Tickle (who identifies as a woman) after Grover removed him from her app on the basis he is a man.
This case is significant because it is the first time ‘gender identity’ will be measured against ‘sex’ as a protected attribute under the Sex Discrimination Act 1984 (SDA) in Court.
"The difference between the applicant’s case and the respondents’ case is stark and wholly irreconcilable. One will ultimately be found to be right and the other wrong". -Justice Bromwich 1 June 2023
History of female sex-based rights in Australia
In 1979, the UN General Assembly adopted the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). CEDAW is an internationally recognised ‘bill of rights’ for women to protect them from discrimination, exclusion and restriction based on sex. Countries that sign the Convention are legally bound to introduce provisions within their legislative frameworks to implement it. In 1983, Australia became one of the 193 countries globally to sign the treaty, and CEDAW was formally ratified into Australian law under the Hawke Government by passing the SDA.
In 2013, less than six months after Julia Gillard lectured then-future Prime Minister Tony Abbott on all things ‘sexism and misogyny’ with her infamous parliamentary speech, the Gillard Government introduced amendments to the SDA to remove the definition of male and female and add ‘gender identity’ as a protected attribute.
This has opened the floodgates for men to self-identify as women and take advantage of female-only spaces, sports and services. It also set a precedent for ideologically driven state Governments to legislate away further female rights in the name of ‘diversity and inclusion’. Although there are provisions within the SDA that permit lawful discrimination against men in favour of women and girls based on sex, the 2013 amendments have created uncertainty on what takes precedence when sex and gender identity collide. It has also provided an avenue for men to weaponise the legal system against women seeking to protect their sex-based rights.
Sall Grover’s Giggle for Girls
Born and bred on the Gold Coast in Queensland, Sall Grover is a Hollywood screenwriter turned female tech entrepreneur. In 2019, inspired by conversations with her mother, Grover developed the app Giggle for Girls, with the idea of women having a private and secure ‘female support network in the palm of your hand’. Grover built a platform for women to share discussions on current affairs, seek support, search for accommodation and promote their businesses.
In January 2021, after publicly supporting a petition for the historic McIvers Ladies Baths in Sydney to be kept for women and children only (McIver’s was granted an exemption from anti-discrimination laws in 1995) after trans rights activists demanded anyone who identifies as a woman be permitted to use the facilities, Grover found her social media accounts blowing up with attacks from the trans rights activists. This spilt over into registrations on her app Giggle for Girls, resulting in routine checks to remove trans rights activist males trying to hijack the app, defeating the purpose of a safe female space for women to connect.
One activist who signed up to Giggle after being blocked by Grover on X (formerly Twitter), and then removed after being identified as a male, was Roxanne Tickle.
Australian Human Rights Commission Complaint
In January 2022, Grover received notification that a complaint had been lodged against her at the Australian Human Rights Commission (AHRC), claiming she had discriminated against Tickle based on his gender identity. Tickle started identifying as a woman in his late 40s in 2017. In 2019 he had surgery to feminise his physical appearance (‘gender-affirming’ surgery), and in 2020, he changed his birth certificate records to say he is a female. Tickle claimed that Grover had unlawfully discriminated against him based on his ‘gender identity’ as a woman when she removed him from the app. To resolve the matter at Conciliation, Tickle demanded that she publicly apologise, undergo re-education on sex and gender, and reinstate him onto the app.
Grover, wanting to protect the integrity and purpose of the app, refused, and subsequently, the Human Rights Complaint was referred to the Federal Court.
"The person was removed from the Giggle app because they are male, no other reason. The removal was manual. I looked at the onboarding selfie and I saw a man.” -Sall Grover, 2 April 2022
Tickle v Giggle
Tickle (pictured above) first filed his case in the Federal Court in June 2022; however, by July, the matter was discontinued due to costs.
Five months later, Tickle applied to relaunched proceedings, represented by Barry Nilsson Lawyers, who run a multimillion-dollar pro-bono program. Tickle also received a $50,000 grant from the Grata Fund from UNSW Sydney to help run the case. Despite the 60-day limitation to launch proceedings after failed conciliation through the AHRC, Justice Bromwich permitted the case to proceed, concluding in his judgment that it is ‘in the public interest’. However, while determining the case to be one of public interest, he is refusing to allow it to be live-streamed despite repeated requests from the public. Bromwich also approved a maximum costs order in favour of Tickle to $50,000, limiting his risk of financial liability if he fails to win the case.
The hearing has been set for 9-12 April 2024. Grover, represented by Alexander Rashidi Lawyers, Katherine Deves and Barrister Bridie Nolan, will argue that Grover lawfully discriminated against Tickle based on sex, not ‘gender identity’ which is permitted when the discrimination is a “special measure” to achieve substantive equality between men and women. They will also make the case that the Gillard Government amendments to protect 'gender identity' are unconstitutional because the SDA was created pursuant to constitutional powers to legislate regarding international laws, and there is no basis for ‘gender identity’ protections under CEDAW, the Convention the Act was intended to give effect to, in order to protect women’s sex-based rights.
In April 2023, the Australian Human Rights Commission sought permission from the Court to appear as amicus curiae, which was approved (an amicus curiae is a ‘friend of the court’, whose role is to assist the court on matters of law or fact). In her submission, the Sex Discrimination Commissioner Dr Anna Cody argues that sex is not a biological concept and can refer to someone being male, female, or 'non-binary'.
United Nations Special Rapporteur Reem Alsalem’s request to appear as amicus curiae was rejected by the court for being out of time. Instead, she has advised the Australian Human Rights Commission, at their invitation, on the definition of the word ‘woman’ in CEDAW. While acknowledging that CEDAW does not define the term 'woman', Alsalem submits that it clearly refers to biological females, as the purpose of CEDAW was to protect women from discrimination based on sex and that at the time of its implementation, 'gender identity' was not even a concept.
Women's sex-based rights must be restored
Julia Gillard, rather than use her position as Australia's female Prime Minister to support the advancement of women, set them back decades. It is her legacy and shame that Grover, a woman and mother with extraordinary strength, has had to come up with half a million dollars to defend herself in Court against an allegation of discrimination for simply saying 'no' to a man.
The 2013 reforms to the Sex Discrimination Act must be repealed. Whether this is achieved through these proceedings, an appeal to the High Court, or by campaigning until the Government changes them, it must be done. Left the way things are, women as a legal category and all their accompanying sex-based rights and protections will cease to exist. By and large, our sex-based rights have already gone. Women have lost a fair, safe playing field in sports; women are now housed with male sex offenders, and little girls no longer have access to private bathrooms in public venues because it has been deemed 'progress' to allow men to identify as women.
As we saw with the suffragettes, significant change and righting wrongs can be achieved with hard work and sacrifice.
Sall Grover could have let this be someone else's problem. Instead, she stood up and took a bullet for the future of every woman and girl, not just in Australia but for every country which has pledged itself to CEDAW.
A true Australian heroine, we owe her a debt of gratitude.
Stephanie Bastiaan is a Research Fellow with Women’s Forum Australia
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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