Saeculum: government, law and culture

Tickle v Giggle for Girls Pty Ltd

The Federal Court has decided the first gender identity discrimination case in Australia. In Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 the Federal Court held that Giggle for Girls Pty Ltd discriminated against Roxanne Tickle (the applicant) by preventing the applicant from using a social media app – the Giggle App.

The company Giggle for Girls Pty Ltd was incorporated in March 2019. The Giggle App was developed in 2019 and launched in 2020. Sall Grover, the founder and CEO, intended the App to be a “women-only safe space on the internet”, where women could connect, engage in discussion and share opportunities:

“The vision was to create a little corner of the Internet where women from all over the world could have a refuge away from men. It could be for serious reasons, very superficial reasons, or very practical reasons. It would be a place without harassment, “mansplaining”, … stalking, and aggression, and other male patterned online behaviour. A place to vent and get advice from other women and find out what was happening in the real world in a female-only environment” [95].

Roxanne Tickle joined the Giggle App in February 2021. Tickle “was male sex at birth”, and has undergone a process of gender transition which has included “social, medical and legal components”. Tickle now identifies, and is recognised at law, as a woman.

All users of the Giggle App were required to upload a selfie photo upon registering. In around September 2021 Grover reviewed Tickle’s onboarding photo and concluded that Tickle was male. As such, Grover blocked Tickle from using the App with the consequence that Tickle was unable to access various features.

The evidence presented in the case was to the effect that Tickle “was not really all that interested in actually using the Giggle App” [228].

Tickle made a complaint to the Australian Human Rights Commission that this amounted to gender identity discrimination under the Sex Discrimination Act 1984 (Cth) (SDA). After the respondents declined to participate in conciliation, Tickle instituted proceedings in the Federal Court. 

The court held that this conduct amounted to indirect discrimination and ordered that the respondents pay a sum of $10,000 to the applicant, and also to pay the applicant’s costs – which are partially capped, but likely to far exceed $10,000.

As a result of this case, the App has been defunct since August 2022.

Direct and indirect discrimination

The court held that the conduct of the respondents amounted to indirect discrimination but not direct discrimination.

Direct discrimination is where a person treats another person less favourably by reason of a protected attribute. For example, a restaurant owner refuses entry to a person because of the person’s race. The conduct was not direct discrimination because the evidence did not establish that Tickle’s gender identity was part of the reason Tickle was excluded from the App.

Indirect discrimination is where a condition is imposed that has the effect of disadvantaging a person with a protected attribute. For example, imposing a requirement about height or size in order to participate in something could disadvantage a person of a particular sex.

A key difference is that knowledge is not relevant for indirect discrimination, but it is relevant for direct discrimination.

Here, Giggle had imposed a condition that, in order to access the App, a person needed to “appear to be a cisgendered female” in an onboarding photo submitted to the App, and that this condition “had the effect of disadvantaging transgender women who did not meet that condition”, in breach of section 22 of the SDA [134].

The meaning of sex and gender

The decision clearly recognises that, under Australian law, the concepts of gender and sex are not binary, and not tethered to biology.

The judge held that “sex is not confined to being a biological concept referring to whether a person at birth had male or female physical traits, nor confined to being a binary concept, limited to the male or female sex, but rather takes a broader ordinary meaning” [55].

Amendments were made to the SDA in 2013 that introduced an understanding of sex “that is changeable and not necessarily binary” [59]. As a result, “sex can refer to a person being male, female, or another non-binary status and also encompasses the idea that a person’s sex can be changed” [56].

In order to be considered a female at law, it is legally sufficient that the person is recorded as female on the person’s birth certificate [62].

The judgment noted that Grover considers that “there is no legitimate distinction between transgender women and cisgender men” [131]. The judge recognised that this is a sincerely held belief, but held that this is contrary to the SDA [30].

Further, the use of the terms “adult male human” and “adult female human”, and adhering to a person’s sex as registered at birth, are also contrary to the language of the SDA [44].

Relevant Provisions

For completeness, the relevant provisions of the SDA are as follows. Section 4 defines gender identity:

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.

Section 5B(2) defines indirect gender identity discrimination:

“For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identify if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the aggrieved person”.

Section 22 renders it unlawful for a person who provides goods or services to discriminate against another person on the ground of the other person’s gender identity by (among other things) refusing to provide goods or services to that person.

Reasonableness defence

The SDA includes a reasonableness defence (or exception). That is, a condition or requirement will not amount to discrimination if it can be shown that it is reasonable in the circumstances, having regard to several factors (s 7B(1)). Regrettably, lawyers for the respondents made reference to this provision but “made no attempt to explain how it applied in this case” [37].

It is therefore unclear whether conditions of the type imposed by Giggle could meet the standard of reasonableness, and so be exempted from unlawfulness.

Constitutional questions

The constitutional aspects of the decision warrant further scrutiny. The external affairs power in section 51(xxix) of the Constitution is one of the key constitutional bases for the SDA. Under that provision, the Commonwealth has power to legislate to implement obligations under international treaties to which Australia is a party.

The two relevant international treaties are the Convention for the Elimination of All Forms of Discrimination Against Women (1979) (CEDAW) and the International Covenant on Civil and Political Rights (1966) (ICCPR).

The court held that the relevant provisions of the SDA are supported by section 51(xxix) of the Constitution as enacting Australia’s obligations under article 26 of the ICCPR. Article 26 provides:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

Although article 26 does not refer to gender identity, the judge held that its wording is “a non-exhaustive list of the sorts of personal characteristics” that are protected by the non-discrimination obligation, and that it “was intended to create an open-ended obligation to address kinds of discrimination that may change over time” [184].

The judge considered that gender identity falls within “other status” and hence section 51(xxix) supports the enactment of a Commonwealth law which prohibits discrimination in relation to gender identity.

It is unclear whether such an interpretation of article 26 is consistent with CEDAW, the purpose of which is to eliminate “discrimination against women in favour of men” [173]. There would seem to be scope to re-examine whether the relevant provisions of the SDA are in fact “reasonably capable of being considered appropriate and adapted to implementing Australia’s obligations under international instruments” [157].

Women’s spaces

The creation of the Giggle App arose out of deep personal trauma experienced by the creator. In her affidavit (which is publicly available) Sall Grover describes the reason for creating the App:

“the App grew from an experience in my life which saw me disadvantaged by reason of my female sex, that is, sexual abuse. The purpose of the App was to provide a platform for females all around the world to connect in a female only environment, knowing and confident that it was a female only environment. The purpose of the App was to allow females of all persuasions to connect and support each other in all aspects of their lives in the dignity, safety and security of a female only digital space”.

She continued:

“as a victim of sexual abuse, I know well what I realise now through having undergone therapy for this abuse, is the intrinsic feeling experienced by victims of sexual abuse, which was a feeling at one time intrinsic to me. This feeling is that that as the subject of abuse you are not worthy, because how else could this abuse happen to you. As a victim of sexual abuse, I felt left [with] a strong sense of abandonment by society and those charged with the task of protecting me”.

Grover details how Giggle received “a flood of male abuse” upon creating the App. As a result of the court case, the App, intended to be a “safe and dignified digital space for females”, has been discontinued and is no longer available to anyone.

Conclusion

I make three points in conclusion.

First, the case was poorly run by both sides. The judge commented adversely on many aspects of the running of the case, including failure to articulate clearly the basis of the claim and failure to conduct proper cross-examination. Poorly run cases generate unfortunate precedents. There is a need to invest in order to run cases professionally.

Secondly, in this case the claim of direct discrimination was not successful, largely because Tickle was not removed from the App by reason of gender identity. There remains plenty of scope for claims to be made on the basis of direct discrimination (that is, treatment of a person less favourably by reason of a protected attribute).

Thirdly, the applicant claimed significant sums by way of compensation, but adduced little evidence to quantify those amounts. As the judge noted, the real injury from being excluded from the Giggle App “was the hurt of not being treated as a woman” [225].

Perhaps ominously, the judge noted that the quantum of $10,000 awarded in this case “does not reflect the potential seriousness of gender identity discrimination that might emerge in another case” [231]. This seems to signal clearly that significant sums may be awarded for gender identity discrimination in the future, where there is evidence to connect the discrimination to harm suffered.