Two recent Australian cases raise important questions about sex and gender identity as legal categories. One, a decision of the highest appellate court in NSW, held that a change in sex under the law of a State does not require a change to be made in a marriage certificate issued under Commonwealth law. The other is a decision still awaiting a final hearing in the Federal Court, where the operator of a females-only only social networking site is being sued for her decision to exclude an applicant who was born biologically male but has since undergone “gender affirming surgery”. Though neither case explicitly involves anyone whose views are based on religious beliefs, both raise important issues which connect with “law and religion” interests, and are worthy of noting.

Changing a marriage certificate

In Attorney General for New South Wales v FJG [2023] NSWCA 34 (6 March 2023), FJG and FJH married in New South Wales in 2009, in accordance with the law in force under the Marriage Act 1961 (Cth). Their marriage was registered in accordance with the Birth, Deaths and Marriages Registration Act 1995 (NSW) (“BDMRA”), by entry of the particulars of their marriage in the Register of Births, Deaths and Marriages in accordance with the “official certificate of their marriage” produced under s 50 of the Marriage Act. Consistent with the form of the official certificate of marriage then in use, FJG’s personal details were included in the Register under the description “bridegroom”. 

FJG, a biological male, later said that they had been living as a woman prior to 2009. Later steps were taken in Victoria, where they were born, to change their name and then, in accordance with Victorian law, to change their legal sex in 2020 under the law of that State, using the procedure in Part 4A of the Births, Deaths and Marriages Registration Act 1996 (Vic).

However, the marriage certificate details kept by the NSW Registrar still noted that FJG was the “bridegroom” in the marriage. The couple applied in 2021 to the NSW Registrar to use a “correction” power under s 45 of the NSW BDMRA to change FJG’s first name and the designation of “bridegroom”. The Registrar declined to make the change, noting that the details as recorded were an accurate historical record of what had occurred in 2009, and the amending power did not allow retrospective changes of this sort to be made.

The NSW Court of Appeal (Bell CJ, Ward P & Beech-Jones JA) agreed with the Registrar and said that the change could not be made. The decision was made both on the grounds of what the relevant NSW legislation said, and also on the basis that any other interpretation would have brought the law of the State into conflict with the law of the Commonwealth.

Some clarification on how marriage laws operate in Australia may be helpful. The topic of “marriage” is a legislative power given to the Commonwealth Parliament in our federation, but for some 60 years it was not used to make national laws on the topic. Each State and Territory had its own laws on the topic, and developed their own systems for registering marriages. In 1961 the Commonwealth enacted the Marriage Act 1961 to create a uniform system for marriage solemnisation and validity, but (perhaps since the State registry systems were already well established) did not set up its own machinery for registration.

Under the Marriage Act, s 50, once a marriage is solemnised under Federal law different certificates are created. One of the “official certificates” is delivered to the State or Territory registering authority. The information to be included in this certificate is specified in a form authorised under the regulations. Beech-Jones JA summed up the situation as follows:

[T]he provisions of the Marriage Regulations 1963 (Cth) as in force in 2009 were to the effect that one party to the marriage would be recorded in the official certificate of marriage as “bridegroom” and the other party as “bride”. It is those particulars that are recorded in the Register. Consistent with this, a certificate produced under s 49 of the NSW Act certifying the “particulars” contained in the entry in the Registry concerning FJG and FJH’s marriage was tendered in this Court. The certificate refers to FJG as the “bridegroom” and uses her original birth or “dead” name.

FJG, at para [21]

While s 45 of the BDMRA allows a Registrar to correct an entry in the Register “to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event”, the court accepted the view put by the State that the Register was intended to be a record of events recording the truth of past events. At the time of the 2009 marriage, the designation “bridegroom” was accurate (as FJG had not at that stage taken any surgical steps to appear as a woman), and hence the record should not be altered.

The background to this issue, of course, is that the law in different States and Territories allows a change of legal gender to be recorded after certain processes are followed. In NSW, under Part 5A of the BDMRA, a “change of sex” may be registered under s 32B where someone has undergone a “sex affirmation procedure”. This is defined in s 32A as:

a surgical procedure involving the alteration of a person’s reproductive organs carried out– (a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or (b) to correct or eliminate ambiguities relating to the sex of the person

NSW BDMRA, s 32A, definition of “sex affirmation procedure“

Once this process has been followed, then under s 32I the person is “for the purposes of, but subject to, any law of New South Wales, a person of the sex as so altered.” There is also a process by which similar changes from other jurisdictions can be recognised. Here the relevant change of sex had been registered in Victoria, but was recognised in NSW under these provisions.

However, Beech-Jones JA noted that other aspects of the Register showed that an “affirmation procedure” to change legal sex, whether under local NSW law or as recognised by NSW law when carried out elsewhere, did not completely erase the former information about sex from the Register. At [53] his Honour noted that, while under s 32E a birth certificate issued to the person themselves after registration of a change of sex would not refer to the sex of the person at birth, under s 32F a child of a person who had undergone such a change could request and be issued with a birth certificate of their parent showing the original birth sex.

The point is that recognition of a person as a member of the opposite sex is still subject to other provisions of the law of NSW. In this case, where the law of NSW required a marriage certificate issued under NSW law to contain details matching the details recorded under Commonwealth law, then there was no scope to use s 45 to change those details. To read the provision to allow such a change, his Honour said at [69], would “would “undermine so much of the NSW Act which forms part of an integrated scheme for the registration of marriages”.

Another important part of the background here is that, while the Full Court of the Federal Court of Australia ruled in Attorney-General (Cth) v “Kevin and Jennifer” (2003) 172 FLR 300; [2003] FamCA 94  that a “post-operative transsexual” could be recognised as having changed legal sex for the purposes of Commonwealth law, this ruling did not extend to those who had not had surgical procedures. At the time of the 2009 marriage, FJG had not undergone such procedures. Even assuming Kevin and Jennifer is correct (and it has never been formally tested in the High Court), FJG was still clearly a male for the purposes of Federal law in 2009.

His Honour summed up the decision as follows:

Accordingly, it follows that I do not accept that the power conferred by s 45 of the NSW Act is enlivened where a person applies to “correct” the particulars of a marriage solemnised in New South Wales in September 2009 to reflect a change of name effected under Pt 4 of the Victorian Act in 2018 and an acknowledgement of sex effected under Pt 4A of the Victorian Act in 2020. Properly analysed, the legal effect of those changes does not yield more reliable information about the “registrable event”, being the marriage, than those recorded in the official certificate of marriage provided to the Register under s 34 of the NSW Act.

FJG at para [80]

If a different view of the interpretation of the NSW law had been reached, it would then have been necessary to consider whether this view was inconsistent with the law of the Commonwealth concerning marriage certificates, as under s 109 of the Constitution the Commonwealth law would prevail. However, as it turns out no inconsistency was present and this did not become an issue. (At para [83] it was noted that the court will of course usually aim to interpret State law so that it is consistent with Commonwealth law.)

Can a female networking site exclude a biological male?

The second case raising this difficult issue has a name which even those (like myself) used to inventing case names for law exams might have hesitated to devise: Tickle v Giggle. The official title to the proceedings is Roxanne Tickle v Giggle for Girls Pty Ltd & Anor and helpfully there is a dedicated area of the Federal Court website here which links to copies of the main submissions of the parties.

Giggle for Girls is digital application marketed as an online platform exclusively for females as a “safe space”. The CEO of the company is Sally Grover. Giggle is being sued by Roxanne Tickle, a person who was born a biological male. The statement of claim says that the Applicant “underwent gender affirming surgery in October 2019 by which her gender as a woman was affirmed”. A birth certificate issued by the Queensland Registry of Births, Deaths and Marriages in or around January 2020 states that the Applicant is female.

From the Respondent’s pleadings:

7. At the time when Giggle was operational, to access it, a user was required to provide a self-taken photograph, referred to as a “selfie” and upload it to the application. The purpose of this was to ensure that the proposed user was female. An artificial intelligence feature was used to make this determination in the first instance.

8. The Applicant was originally granted access to the Giggle website App based on a selfie uploaded.

9. The Applicant’s access was removed following a visual inspection by the Second Respondent for and on behalf of Giggle, on the basis that the Applicant had the characteristics that are pertain generally to persons of the male sex or that are generally imputed to persons of the male sex.

AMENDED Notice of a Constitutional matter under section 78B of the Judiciary Act 1903 (30 June 2023), paras 7-9.

The Applicant claims that the Respondents are guilty of unlawful discrimination. To quote the statement of claim:

In breach of section 22 of the SDA, the First and/or Second Respondent discriminated against the Applicant on the basis of her gender identity, within the meaning of section 5B(1) of the SDA.

Amended Statement of claim, 14 June 2013, para 35.

Section 22 of the Sex Discrimination Act 1984 (Cth) (“SDA”) makes it unlawful to discriminate in the provision of “services” on the basis of certain protected attributes, including “gender identity”. That term is defined in the SDA as follows:

“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.

SDA, s 4(1)

Section 5B, SDA, spells out what amounts to gender identity discrimination:

Discrimination on the ground of gender identity

             (1)  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 identity if, by reason of: 

                     (a)  the aggrieved person’s gender identity; or 

                     (b)  a characteristic that appertains generally to persons who have the same gender identity as the aggrieved person; or 

                     (c)  a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person; 

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity. 

             (2)  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 identity 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. 

             (3)  This section has effect subject to sections 7B and 7D.

SDA, s 5B

Here the claim is that the Applicant was treated less favourably than what the statement of claim calls “cisgender women”, that is, those who are biologically female. There has been a preliminary hearing on some technical issues in the matter, Tickle v Giggle For Girls Pty Ltd [2023] FCA 553 (1 June 2023), in which the trial judge, Bromwich J, noted:

The amended statement of claim uses the term cisgender. That term refers to a person whose gender corresponds to the sex registered for them at birth, to be contrasted with a person whose gender does not so correspond, which can be described as transgender to reflect that difference. By contrast, the respondents’ defence uses the terms adult male human and adult female human, which in contest adheres to the sex of a person registered at birth.

Tickle v Giggle (No 1), at para [11]

The case is still proceeding (at the moment the hearing is scheduled for 9-12 April 2024). But there has already been an intervention in the proceedings by the Sex Discrimination Commissioner (“SDC”), who has as one of their functions, pursuant to s 46PV of the Australian Human Rights Commission Act 1986 (Cth), that of assisting the Federal Court as amicus curiae (“friend of the court”) in proceedings of this kind. While the SDC submission indicates that she does not intend to make submissions about whether the conduct of the Respondents constituted unlawful discrimination (see p 2, para [2]), the effect of her intervention will be to support the Applicant’s case. That is because one of the arguments being put forward by the Respondent is that the relevant sections of the SDA, especially s 5B, are not valid because they are not supported by the Commonwealth’s “external affairs” powers. This argument notes that while discrimination on the basis of sex itself is dealt with in a major treaty relied on to support the SDA, discrimination based on “gender identity” is not covered by that treaty or any other treaty to which Australia is bound.

As this post is already too long, I won’t explore these constitutional arguments in any detail (though I have to say that in my view, these arguments put forward by the Respondents have some force.)

Arguments that have been put forward by the Respondent so far on the question of interpretation (that is, has there even been a breach of the SDA?), include the point that the denial of access to the Giggle app was not on the basis of the “gender identity” of the Applicant, but simply on the basis that the Applicant is an adult human male. (See the SDC submission summary at [8].) If this were claimed to be an act of discrimination on the basis of “sex” (which it clearly seems to be), the Respondents argue that providing a safe space for women to interact with other women online would be allowed under s 7D of the SDA. This provision allows for “special measures for the purpose of achieving substantive equality” to be implemented.

One of the issues that will require resolution is whether a s 7D activity aimed at overcoming the practical detriments of sex discrimination, will operate as a defence to a claim of gender identity discrimination. On the face of it, the argument for the Respondents here is strong. Section 7D(2) explicitly says that:

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).

SDA, s 7D(2)

This seems to mean that, whenever there is a practice that satisfies any one of the paragraphs of s 7D(1), it cannot be regarded as discriminatory under any of the listed provisions in s 7D(2), which includes s 5B. While each of the various paragraphs in s 7D(1) lists an area of discrimination under the Act as to which the defence of “special measure” will apply, s 7D(2) does not as it stands “distribute” those defences among the various prohibitions. So a “special measure” to redress practical inequality between men and women under s 7D(1)(a), seems to provide a good defence to any of the provisions listed in s 7D(2), among which is the prohibition on “gender identity” discrimination in s 5B.

An example of a successful “special measures” claim is the decision in Walker v Cormack [2011] FCA 861 (3 August 2011), where it was held that a gymnasium was entitled to run a “women only” exercise class. The judge upheld the ruling of a federal magistrate which found that:

the reluctance of some women to access the services of gymnasiums if men were to be present was evidence of a substantive inequality, that the respondent had gained an understanding of this, and that he had formed a view that there was an inequality which he hoped to address by providing a female-only class.

Walker v Cormack, para [31]

This sounds very similar to the reasons for operating a “female only” social network.

It may be noted that that in her submission, the SDC takes a different view, arguing that special measures for one ground cannot be used as a defence for other grounds of discrimination (see para [58] of the SDC submission.) For the reasons noted above, I disagree.

In my view, the Applicant’s claim should not succeed. It seems plausible to assume that Parliament intended when adding “gender identity” to the list of protected grounds, to outlaw decision-making which would disadvantage transgender persons in areas where this characteristic would be irrelevant. Transgender persons should not be denied service in hotels or access to banks. But in contexts where sex is relevant to decisions, there is no breach of the SDA.

As noted above, s 5B operates where there is unfavourable treatment “in circumstances that are the same or are not materially different”. Where a service is only offered to women (female human beings), a male human being may be excluded from that service (or, eg, that prison or hospital ward). If setting up female-only services is needed to redress practical detriment suffered by women, this should be supported, and not undermined by the very legislation that was designed to further equality for women.