Explainer: Giggle for Girls Pty Ltd v Tickle
An explainer outlining the Commission's involvement in the Giggle for Girls v Tickle case.
Background
This is the first case to deal with gender identity discrimination under the Sex Discrimination Act. The Federal Court’s decision provides important guidance about the protections for trans and gender diverse people against discrimination.
The Sex Discrimination Commissioner participated in the case as an amicus curiae (‘friend of the court’) to make submissions about the meaning of the law.
What was the case about?
The case concerned a social networking app called Giggle for Girls, which promoted itself as a space exclusively for women but which excluded trans women. To join the app, users had to submit a photo of themselves. Admission to use the app was decided based on their appearance.
Roxanne Tickle is a trans woman. She has lived as a woman for 9 years and is recognised by her friends, family and work colleagues as a woman. Ms Tickle has had gender affirming surgery and legally changed her sex to female on her birth certificate under Queensland laws.
Ms Tickle joined the Giggle app in 2021 and was initially allowed to use it. However, she was later removed after the app’s founder and CEO Sally Grover reviewed her photo. Ms Tickle asked to be allowed to use the app again, but her request was denied.
Ms Tickle made a discrimination complaint to the Australian Human Rights Commission. After the complaint could not be resolved by conciliation, she took her case to the Federal Court and won. Giggle for Girls and its CEO appealed that decision to the Full Court of the Federal Court. Ms Tickle won again. On appeal, the Court said that the decision to exclude her from the app, and the decision not to readmit her, were both acts of direct discrimination on the ground of Ms Tickle’s gender identity.
The Court awarded Ms Tickle $20,000 in damages. This included $8,000 for aggravating conduct by Giggle’s CEO which included ‘language which portrayed Ms Tickle as a predatory male’ and public statements showing a campaign against her.
What is gender identity discrimination?
In 2013, the Australian Parliament changed the Sex Discrimination Act to protect people from discrimination based on sexual orientation, gender identity and intersex status. These changes were supported by both major political parties.
The gender identity protections apply to people who are trans or gender diverse. The amendments mean that it is unlawful to discriminate against trans and gender diverse people in a number of areas of public life including at work, in education, or when they are trying to access goods and services. For example, it would generally be unlawful for an employer to refuse to employ a trans man because he is trans.
Trans and gender diverse people are often discriminated against based on how they look – especially if others think they don’t appear to match their gender. In this case, Ms Tickle was excluded from a woman’s social networking app because the CEO decided she didn’t look like a woman.
What does this mean for women-only spaces?
Some people have raised concerns about how including trans people could affect their own rights and sense of safety, especially in women-only spaces.
The Sex Discrimination Act has some exceptions and exemptions that allow discrimination in specific circumstances where it is justified. For example, in competitive sport, it is lawful to exclude someone based on sex or gender identity if factors like strength, stamina, or physique are relevant to the sport.
It is also lawful to treat people differently if this is necessary to achieve real equality between people of different sex or gender identity. This, for example, allows organisations to establish and run domestic violence refuges for women. The Australian Human Rights Commission can also grant exemptions for up to 5 years on a case by case basis.
Protecting the rights of trans and gender diverse people
The Commission recently published a report called Equal Identities: A human rights review of the experiences of trans and gender diverse people in Australia. It highlights the significant and preventable barriers to trans and gender diverse people’s safety, dignity and full participation in society. It also addresses complex settings like sport, education and prisons. It calls for responses that are evidence based, proportionate and focused on safety and dignity for everyone involved.
Trans and gender diverse people in Australia are part of our communities, our workplaces and our families. They should have the same safety, dignity and opportunities as other people.
Here are links to the judgment and the judgment summary prepared by the Court.
