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Giggle v Tickle and religious freedom- response

Professor Paula Gerber has published a response to my critique of her previous piece on the Giggle v Tickle case. In her article, “Giggle v Tickle is about sex discrimination, not religious freedom” (ABC Religion and Ethics, 17 July 2026), she suggests that it was “disingenuous, for Neil Foster to suggest that the judgement poses a risk to religious freedom”. I would like to briefly respond.

Professor Gerber is correct to note that my critique did suggest, in its title, that the decision of the Full Court of the Federal Court was a “risk to religious freedom”. I did also comment on this issue in the body of my article, but I did so very briefly. This is my comment on the risk to religious freedom:

Faith groups will also be concerned about this decision. This issue is one that most religious traditions regard as crucial — namely, that there is a difference between men and women, and this difference can matter in some important contexts. (It is worth noting that, while many religious groups will currently be able to rely on section 37 of the SDA, allowing them not to be sued when acting in accordance with their doctrines and beliefs, this defence has come under regular challenge in recent years.)

Professor Gerber criticises me for raising religious freedom as an issue. She notes that the court did not mention this issue, and she refers to the defences available to religious groups in sections 37 and 38 of the Sex Discrimination Act 1984 (Cth) (“SDA”). She notes that those defences are not in any way weakened or eroded by the Federal Court decision, and in this she is entirely correct.

My substantive comments about religious freedom issues were a very small part of my article, towards the end. I explicitly mentioned the s 37 defence. But as I said, the defence under s 37 (and the similar defence applying to faith-based schools in s 38) have come under regular challenge in recent years. The possibility of their repeal or amendment is always there. If they were removed, then the Full Court’s decision that sex is changeable and that single-sex spaces for women must always be open to those who were born male but have now “transitioned” to claim a female identity, would have a serious impact on the freedom of religious groups to operate in accordance with their doctrines and beliefs. While her comments are correct as the legislation now stands, I wanted to flag the possible detrimental effect of the decision if the legislation were to change in the future.

I also note that Professor Gerber does not respond to the major part of my article: the discussion about the special measures exemption in s 7D and the meaning of “sex” in the SDA, or to my critique of the misleading quotation in her article from a UN decision. I still maintain that the Full Court decision in Giggle v Tickle is wrong, and continue to hope that the High Court will grant special leave to appeal, and that the decision will be over-turned.

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Giggle v Tickle comment on ABC website

I have published an opinion piece on the ABC Religion and Ethics website commenting on the litigation in Giggle v Tickle: “Why the Giggle v Tickle judgement is bad for women’s rights and a risk to religious freedom“. For regular readers, some of the comments will be familiar as drawn from my previous blog post on the case. But I have added some new material and updated to note the lodging of the application for special leave to appeal to the High Court.

From the conclusion:

I believe women’s rights and rights of religious freedom are under threat if the appeal decision in Giggle v Tickle stands. Hopefully the appeal to the High Court will restore clarity about how the SDA applies to these important issues.

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Giggle v Tickle, the Federal Court Appeal- Two Steps Back

The Full Court of the Federal Court of Australia has handed down its long-awaited decision in Giggle for Girls Pty Ltd v Tickle [2026] FCAFC 64 (15 May 2026). I commented on the trial decision in this case in an earlier post. In the trial decision, as I noted, Bromwich J in the Federal Court of Australia found that the company Giggle had been guilty of indirect gender identity discrimination when its director, Sall Grover (who was also sued), had removed Roxy Tickle from her women-only social media app. Roxanne Tickle (“the applicant”), as Bromwich J noted at trial:

was of the male sex at the time of birth, but is now recognised by an official updated Queensland birth certificate, issued under the Births, Deaths and Marriages Registration Act 2003 (Qld) (Qld BDM Registration Act), as being of the female sex.  This followed from, and was predicated on, sexual reassignment surgery, being the term used in the Qld BDM Registration Act.. (at [3])

While the appeal decision overturned some rulings of the trial judge, the outcome was that Giggle and Sall Grover were still held to have unlawfully discriminated, and were hit with double the previous award of damages (raised from $10,000 to $20,000.)

Recently I posted about another case where I suggested that the decision of Federal Court judge represented “one step closer” to recognition of the reality of biological sex in our legal system. Sadly, it has to be said that this decision of the Full Court might now be seen as “two steps back”.

In short, I think this appeal decision is also legally wrong, and I look forward to it being overturned on appeal to the High Court of Australia if that goes ahead. But the decision also strongly points to the need to amend the Sex Discrimination Act 1984 (Cth) (“SDA”) to restore a clear definition of the word “sex”, and reaffirm the right of women to be able to enjoy single-sex spaces without being intruded upon by biological males.

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Australian Journal of Law and Religion- vol 7

The latest volume of the Australian Journal of Law and Religion has been published (and is freely available online here.) The Table of Contents is below- always worth reading! In particular I would like to commend the prize-winning essay by Jacob Carson, a former student of mine, on the important issues around teaching of religion in public schools.

AJLR-Volume-7-2026 TOC pageDownload
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The Reality of Biological Sex in Law- one step closer

One of the deeply contested issues in Western societies at the moment is whether the law recognises the reality of biological sex. This is not only a question for faith groups, but it is one that most religious traditions regard as crucial- that there is a difference between men and women, and this difference can matter in some important contexts. But the question is also important for others in society, as this fundamental feature of humanity comes under challenge from those who claim that sex (or gender) is changeable.

The decision of Moshinsky J in the Federal Court of Australia, in Lesbian Action Group Inc v Australian Human Rights Commission [2026] FCA 432 (15 April 2026), arguably moves the law of Australia one step closer to acknowledging biological reality. The litigation is not over (and the very important appeal in Giggle v Tickle is still awaited, on similar issues – see my previous comments here) but it seems there is some progress.

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Evidence for the resurrection of Jesus- papers

Following my previous post, here is the paper I am presenting on evaluation of the evidence for the resurrection of Jesus applying principles of the law of evidence applied in the courts:

Evaluating the evidence for the Resurrection of JesusDownload

In that paper I mention a brilliant paper on the same broad area by former Justice of Appeal Ken Handley; for those who haven’t seen it, here it is for download (with kind permission):

A lawyer looks at the resurrectionDownload
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A LEAP IN THE DARK? EVALUATING THE EVIDENCE

At Easter time each year, there is the inevitable news story querying the resurrection of Jesus. Does it really matter whether Jesus rose from the dead? And just how much weight can be placed on the evidentiary material in the New Testament? Join us at our first Newcastle City Legal for the year as Assoc Prof. Neil Foster probes these fascinating questions.

If you are in or around Newcastle, join us at our next Newcastle City Legal event. This will be a breakfast seminar, run by the Newcastle Christian Lawyers Fellowship, in partnership with “City Legal”, Wednesday 1 April 7:30 am- 8:30 am, in room X703, Nuspace Building, University of Newcastle, Cnr Hunter St and Auckland St, Newcastle. More details and registration here. Charge is $5 (and free coffee), or $10 for pastries with coffee. Everyone is welcome to come: lawyers, law students, or those just interested in the intersections between law and the Bible!

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Strict liability for abuse committed by non-employees: the AA case

The High Court of Australia handed down a significant decision last week in  AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 (11 Feb 2026). The decision expands the strict liability of churches and other organisations undertaking the care of children, by finding that an institution owes a “non-delegable duty” to such children, to ensure that no-one entrusted to care for them commits abuse. In reaching this decision, the court had to over-rule a previous decision in the Lepore case.

As Edelman J commented:

[341] The overruling of Lepore will have a significant effect upon the common law in this country, including upon proceedings concerning historic sexual abuse, such as this case. Any legal entity—including any unincorporated organisation like the Diocese that is required to be treated as a legal entity—which assumes responsibility to ensure that reasonable care is taken of another’s person or property (goods or land) will be liable if a third party intentionally causes injury to that other person or their property within the scope of the responsibility assumed.

I am presenting a paper at an academic conference outlining the decision, which is available for download here.

Torts Symposium 2026 Foster paper NDD AADownload
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New federal hate speech laws- impact on religious freedom?

After the dreadful terrorist incident at Bondi on December 14 2025, where 15 folk from the Jewish community were murdered, the Federal government has introduced new “hate speech” laws at the national level. Whenever there is a proposal to target “hate speech” there is always a potential danger that unpopular religious views will be caught up in the ban. However, it seems that the recently enacted changes will have little impact on religious freedom in Australia, except where religion is offered as a reason to justify calls for violence against others. In this post I will try to spell out what the changes are, and why they seem to be a reasonable response to the danger of terrorist violence.

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Football and “transgender vilification”- the Kirralie Smith cases

I have written previously about litigation involving Kirralie Smith stemming from her comments about a biological male playing in a womens’ football team. In that post I noted the decision in the NSW Civil and Administrative Tribunal (“NCAT”) in Blanch v Smith [2024] NSWCATAD 20 (22 January 2024). Ms Smith is part of an advocacy organisation, Binary Australia Ltd, which advocates for sex-based rights, especially for women, and sometimes posts about transgender males who have been allowed to compete in women’s sport. Stephanie Blanch was mentioned on the website of Binary and elsewhere online in this context, and then claimed that this amounted to “transgender vilification” under sections 38S(1)(a) and 52 of the NSW Anti-Discrimination Act 1975 (“ADA”). As the judge in the liability proceedings noted below commented at para [3]:

the Plaintiff is a transgender woman. She was born a male and has lived solely as a woman since 2016.

Ms Smith’s case was then transferred for constitutional reasons to the Local Court, where she was subsequently found to have been guilty of vilification. Most recently, in a decision involving Blanch and also in a case mounted by Riley Dennis, Ms Smith was fined and found to be liable for costs. In my view all of these four recent decisions were wrong, and I hope will be overturned on appeal.

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