The debate around whether a women-only app can exclude those born male is continuing. The decision of the Full Federal Court in Giggle v Tickle holds that it was unlawful for Sall Grover to exclude Roxanne Tickle from the “Giggle for Girls” app. I posted a critique of the decision on this blog. Professor Paula Gerber later argued, in a post on the ABC Religion and Ethics website, that the decision is correct. I then published a comment on the ABC site re-iterating my reasons for thinking that the decision is wrong, and critiquing Professor Gerber’s initial comment.
Professor Gerber then posted again on the ABC website (“PG Response 1“), suggesting I was wrong to refer to possible religious freedom issues. I responded by posting here (“NF Response 1“) and arguing that it was correct to flag the impacts on religious freedom as a possible concern, given that existing protections have come under regular attack and proposals that they be removed have come from many sources, including the Australian Law Reform Commission. Indeed, I note that Professor Gerber herself was a co-author of a paper published in 2024 explicitly urging the repeal of s 38 of the Sex Discrimination Act 1984 (Cth) (“SDA”). This provision is one of those current sections protecting religious freedom in the SDA. Professor Gerber’s previous assurance that religious groups “retain precisely the same protections under sections 37 and 38 of the SDA as they did before the decision in Giggle v Tickle“, sounds somewhat hollow when she has actively been agitating for these protections to be removed.
Professor Gerber has now provided a second response (“PG Response 2“) to my comment on the ABC Religion and Ethics site. This response relates to the “special measures” argument, a key issue in the judgment. I would like here to provide my “NF Response 2” to her latest contribution.
To remind readers, the “special measures” issue arises in this way. Under the SDA it is generally unlawful to treat someone detrimentally on the ground of one of the protected attributes under the Act, in comparison to the way someone else without that attribute would have been treated. By offering an app which only women could use, Grover would be discriminating against men and behaving unlawfully unless there was some defence applicable.
In fact there are a number of defences available under the SDA. The Act does not aim to prioritise ending all situations where a protected characteristic is used as a ground of decision-making. In some clear cases, for example, sex is relevant to a decision, as where a female actor is to be cast playing Juliet in Romeo and Juliet (s 30(2)(b)), or where sporting events are involved and “strength, stamina or physique of competitors is relevant” (s 42(1)).
The “special measures” provision in s 7D is designed to deal with situations where, even if formal equal treatment is given, underlying issues relating to inequality between men and women remain in practice. One such example I have noted previously is a women-only gym class (see Walker v Cormack). Grover’s female-only app seems to fit this criterion as well- a place where women can interact without being subject to comments and interference from men.
While it is a lengthy provision, to get the full force of the competing arguments it is worth setting out s 7D in full here:
Special measures intended to achieve equality
7D (1) A person may take special measures for the purpose of achieving substantive equality between:
(a) men and women; or
(aa) people who have different sexual orientations; or
(ab) people who have different gender identities; or
(ac) people who are of intersex status and people who are not; or
(b) people who have different marital or relationship statuses; or
(c) women who are pregnant and people who are not pregnant; or
(d) women who are potentially pregnant and people who are not potentially pregnant; or
(e) women who are breastfeeding and people who are not breastfeeding; or
(f) people with family responsibilities and people without family responsibilities.(2) A person does not discriminate against another person under section 5, 5A, 5B, 5C, 6, 7, 7AA or 7A by taking special measures authorised by subsection (1).
(3) A measure is to be treated as being taken for a purpose referred to in subsection (1) if it is taken:
(a) solely for that purpose; or
(b) for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.
The various purposes for which special measures may be adopted are set out in separate paragraphs of s 7D(1). Then s 7D(2) provides that if what is done amounts to “special measure” under s 7D(1), then there is a “blanket” exemption from being accused of discrimination under a whole list of possible prohibitions. On a plain reading of the text, a special measure to achieve substantive equality between men and women cannot be the subject of a complaint under any of the listed sections. This means that the special measure is not only a defence to a claim of sex discrimination under s 5, but also to a claim of sexual orientation discrimination under s 5A, and of course, it is a defence to a claim for gender identity discrimination under s 5B (and all the other listed grounds).
Professor Gerber disagrees, as of course did all the judges in the Federal Court. But as I noted in my ABC comment, even the Full Court judges agreed that this was the obvious way to read s 7D:
Justice Perry notes that a straightforward reading of section 7D(1) is “an available one on a literal reading”. Justices Abraham and Kennett note that a straightforward reading “works grammatically”, “does not strain the language of [section] 7D(2)” and “is the more natural construction if [section] 7D(2) is read without reference to its context”.
The judges, however, provide what they call a “distributive” reading of s 7D(2), allocating each defence only to one of the paragraphs in s 7D(1). Professor Gerber supports this reading by adopting a comment from Justice Perry, that the purpose of advancing equality “would be undermined if a measure which promoted substantive equality for those holding a particular protected attribute, did so by impairing the achievement of substantive equality by a different protected group”. With respect, this cannot be correct. Any time that a “special measure” is accepted, it will by its very nature detrimentally impact those in another protected group. Men will be annoyed that they cannot join a women’s gym class. But this measure will be allowed to redress a situation of inequality created by discriminatory actions and attitudes.
The more compelling reason for rejecting the “distributive” reading, however, is that it is just not what the section says! Parliament has chosen language which extends the defence under s 7D(2) to all possible grounds of discrimination. It would have been perfectly able to “distribute” the defences if that was its intention; it did not do so. Professor Gerber refers to comments in the Second Reading Speech to the 1995 Bill introducing s 7D which vaguely refer to the provision “advancing equality”. But the comments do not explore the “distributive” argument.
Indeed, the comment provided from the Attorney-General was not really addressed to the substantive framing of s 7D. In context, it was explaining why the provision was not being framed as an “exception” to prima facie discrimination, but instead operated to say that a special measure was not actually discrimination at all. The full paragraph from which Professor Gerber has drawn, is this:
[S]pecial measures are not treated as a form of discrimination; instead, they would be considered as part of the threshold question of whether there is discrimination at all. Consequently, the `special measures’ provision will be moved from that part of the act which provides exemptions. Special measures should be presented and understood as an expression of equality rather than an exception to it.
Viewed in that context, the quote says nothing about whether the defences in s 7D(2) should be read distributively or not. Professor Gerber argues that the result of the natural reading of s 7D(2) would undermine the purposes of the Act. But all discrimination legislation has to balance the rights of various groups- no such law prioritises at all costs the rights of one group above the legitimate rights and interests of all other groups. And the bottom line is that Parliament has not “distributed” the defences in the way that Professor Gerber and the judges of the court would prefer. They are of course perfectly at liberty to argue that the Act should be amended. But their preferred interpretation is not what it says.
Finally, Professor Gerber argues that s 7D should be a “shield not a sword”:
special measures are a shield to protect discrimination from being unlawful when its purpose is to advance equality, not a sword to sanction discrimination that is contrary to advancing equality
But warriors wield both, and whether something is a defensive or offensive measure may depend on who is attacking and what is at stake. In this litigation, Tickle initiated the case and is the attacker. Grover is using s 7D as a shield to prevent the rights of women to single-sex services from being attacked by those who would deny those rights. I argue that the High Court should rule that the shield of s 7D operates as it has plainly been set out in the Act.
Law and Religion Australia 