In his decision in Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 (23 August 2024) 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:

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])

I commented on earlier stages of this litigation in a previous post. The question as to whether sex as a legal category is changeable, and the implications of this for discrimination law, are of great concern to many concerned with protection of traditional female-only spaces. It is a question which raises concerns for religious folk, many of whom see sex as a biological category determined at conception and ordained by God. Hence a review of the decision seems justified on this blog concerned with law and religion, although I note that none of the participants in the case professed any religious reasons for their views. The view that sex is determined by fundamental biological facts is shared by many, on both religious and scientific grounds.

In short, I think this decision is incorrect as a matter of law, and the implications of the decision are bad for society as a whole, and women in particular. I hope it will be overturned on appeal.

1. Factual background

Ms Grover set up the Giggle app as a social media site for women: “a means for women to communicate with one another in what was described as a digital women-only safe space”: [17]. (Quotations are from the judgment of Bromwich J unless otherwise noted.) She had set up an AI-driven system to detect, from digital photos uploaded by applicants to join, whether they were male or female. The applicant’s photo was initially flagged by the automatic process as female, but on further review the applicant was judged to be male and excluded from the app.

The applicant then sued Giggle and Ms Grover for unlawful discrimination under the Sex Discrimination Act 1984 (Cth) (the “SDA”).

2. Legal framework

The SDA was enacted by the Commonwealth Parliament in 1984 in reliance, primarily, on the “external affairs” power given by s 51 of the Commonwealth Constitution. (Section 51 sets out the heads of power on which valid Commonwealth legislation must be based.) As we will note below, there are other heads of power which are possibly relevant, include a power to pass laws in respect of certain corporations.

Initially the SDA was, as its name suggests, designed to prohibit discrimination on the basis of sex, the core areas of which tended to be a failure to employ, or provide equal benefits to, women in comparison to the way men are treated. It also included marital status and pregnancy as prohibited grounds of discrimination, both closely linked to the sort of discrimination faced by women at the time.

More recently, however, the prohibited grounds of discrimination under the SDA were extended well beyond its original goals. In 2013 the grounds of sexual orientation, gender identity, intersex status, relationship status, potential pregnancy and breastfeeding were added to the original grounds. The applicant’s claim here is one of discrimination on the grounds of “gender identity”, in relation to the provision of “services” (which would include access to an app of the sort provided here.)

Giggle and Ms Grover accepted that the app was “discriminatory” on the basis of sex, in the sense of being offered only to women and not men, which formally breached s 5 of the SDA when read with s 22:

Sex discrimination

5  (1)   For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person ) on the ground of the sex of the aggrieved person if, by reason of  (a)   the sex of 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 of a different sex.

Goods, services and facilities

 22   It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex…: (a)   by refusing to provide the other person with those goods or services or to make those facilities available to the other person… {SDA ss 5, 22}

However, Giggle relied on another provision of the legislation, s 7D, to excuse this, saying that provision of a special service for women could be justified as a “special measure” to deal with hardships experienced by women (here, having to deal with the well-known fact of harassment of women on social media by men).

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…

  (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). {SDA s 7D}

The application of s 7D(2) as a defence in this case was a key point of contention, although as noted below it was dismissed by the judge far too quickly.

3. Application of the legislation

The claim made was for “gender identity discrimination”, which was prohibited in s 5B in terms identical to the s 5 definition of “sex discrimination” above, but with the protected category being “gender identity”. (Sub-sections 5(1) and 5B(1) address “direct” discrimination- below we consider the other main form of discrimination, “indirect” discrimination.)

But before going there, we need to know what is meant by “gender identity”. There is a definition of this term in s 4 of the SDA:

“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.

However, as Bromwich J notes, there is no separate definition of “gender” in the Act, nor does it presently define “sex”, “man” or “woman”. (Definitions of the last two terms were removed in 2013). The definition of “gender identity” itself is, in my view, objectionable when it refers to “designated sex at birth”, seeming to imply that those present at the birth of a child somehow carry out this “designation”. In fact, of course, a person’s sex in the common use of the term is a biological reality which is present from the moment of conception.

(a) The meaning of “sex”

Of course, Parliament can define words to have special meanings in legislation which do not correspond to the popular or ordinary meaning. One of the issues addressed here is whether “sex” means something different in the SDA to what it usually means. Bromwich J addresses the question of how “sex” should be defined for the purposes of the Act in his judgment. Actually, it does not seem that this issue was really necessary to be resolved for the purposes of this case- all that needed to be clarified was the meaning of “gender identity”. As such these comments are what are known as obiter dicta– remarks made “by the way” but not essential for the decision, and arguably not part of the ratio decidendi, meaning they do not form a binding part of the decision.

In any event, with respect, his Honour’s comments that “sex, as it is deployed in the SDA, … is changeable and not necessarily binary” (at [59]) are not well supported by the authority he cites. He refers to three cases which, it is claimed, demonstate a “30 year history” of sex being changeable. Yet in 2 of the 3 decisions cited this was not a necessary part of the court’s decision, and in the other one the views expressed have not been supported by the High Court.

In the oldest case cited, Secretary, Department of Social Security v SRA (1993) 43 FCR 299, [1993] FCA 573, the Full Court of the Federal Court ruled that a pre-operative transsexual person (who had not undergone any surgical procedures), could not receive a wives’ pension as a woman. While the members of the court did say that if such procedures had been used, the person could have been regarded as a woman (see eg Black CJ at [24]), these comments did not form part of the essential reasons for decision in the case. Hence they were obiter.

The next case cited for this view is the decision of the Full Court of the Family Court in Attorney-General (Commonwealth) v Kevin [2003] FamCA 94, (2003) 172 FLR 300, which held that sex can be changed for the purposes of federal marriage law, in the case of someone who had undergone surgery. While this decision still stands, as I noted in an earlier post, it  has never been discussed or considered by the High Court of Australia. In a case where perhaps some comment might have been expected, the appeal in NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11 involving the question whether the NSW Parliament had authorised the Registrar to enter a category of “non-specific” sex on a birth certificate, the High Court simply noted in passing that the implications of this finding may be relevant to marriage- but offered no views as to how that might be resolved; see para [42]:

The chief, perhaps the only, case where the sex of the parties to the relationship is legally significant is marriage, as defined in the fashion found in s 5(1) of the Marriage Act 1961 (Cth) (In the Marriage of C and D (1979) 28 ALR 524; Bellinger v Bellinger [2003] UKHL 21;  [2003] 2 AC 467 at 483 [58].)

It is worth noting that in its final cross-references in that quote, the High Court referred to older cases denying that a transsexual person could be legally regarded as of their “reassigned” gender for the purposes of marriage, but made no comment about the decision in Kevin, which had explicitly declined to follow precisely those two earlier decisions. So it is still not clear whether Kevin represents the law of Australia.

Finally, the only other case relied on for the proposition that the law of Australia regards sex as changeable was AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140. In that decision, a 2-1 majority of the Full Court of the Federal Court held that a Victorian law requiring that a person be unmarried before their change of sex would be recognised under Victorian law, was valid and not contrary to s 22 of the SDA. The ratio of the case was that the SDA as it stood at the time relied for its validity on a UN Convention (CEDAW, discussed below) which targeted laws that disadvantaged women, and did not have any impact on a State law which imposed a disadvantage equally on both men and women who were not married. While there were comments by way of obiter supporting the view that sex was changeable under the SDA (see Black CJ, at [4], citing his own comments in SRA), again this was not a part of the ratio of the decision.

To sum up, Bromwich J’s comments at [55] that his Honour’s view on the changeability of sex are “grounded in logic and long-standing authority” do not withstand careful analysis. Such authorities as there are, are either not binding propositions but comments made in passing, or have never been approved by the High Court of Australia. It must be seriously doubted whether “logic” requires such a conclusion. It is perfectly possible to read the SDA prohibition against “gender identity” discrimination as applying to cases where a person who has a “transgender identity” is denied employment or services in areas where such identity is irrelevant (such as service at a cafe or in a bank). But this would not require that such discrimination be found where a person with such an identity was seeking to access a service which had legitimately been restricted to persons of either the female sex or the male sex, if they were not of that sex (determined by their biology). In such cases biological sex would be relevant to decision-making.

There are a number of other indications that the SDA, when referring to sex, has the ordinary meaning of the sex of a person as determined by their biology. For example, s 30 of the Act sets out a number of circumstances where differentiating between persons on the basis of sex does not amount to unlawful discrimination. A number of these rely on biological differences between men and women (see s 30(2)(a)) or the fact that women do not want to share spaces with men in order to preserve decency and privacy (see s 30(2)(c), (e) and (g).) In any event, as already noted, it was not necessary for Bromwich J to come to a view on the meaning of “sex”, as what his Honour was asked to address was the separate ground of “gender identity discrimination”.

(b) No Direct Gender Identity Discrimination

So, how was it concluded that there had been “gender identity discrimination” in this case? Actually his Honour ruled that there had been no “direct” discrimination on this ground. This flowed from the fact that the removal of the applicant from the app was done, not because of any “transgender” identity, but because it seemed clear that the applicant was male, and not female. Whether or not the person concerned believed themselves to be male or not, they would have been removed if the available evidence suggested they were male.

He said:

[126] I accept Ms Grover’s evidence that the likely reason for the applicant’s removal from the Giggle App based upon her application selfie was not for the reason that Ms Tickle is a transgender woman, but rather because Ms Grover perceived the selfie to be a photograph of a male and would have removed Ms Tickle for that reason.

Hence, as his Honour noted, there was no claim for “direct” discrimination available under s 5B(1), as the immediate ground for the decision was not the applicant’s status as “transgender”. However, and despite the fact that this alternative seems not to have been clearly articulated by the applicant’s counsel, it was necessary to also consider whether there was “indirect” discrimination.

(c) Indirect Gender Identity Discrimination

This form of discrimination is dealt with in s 5B(2) of the SDA:

5B(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.

The concept of “indirect discrimination” has been well recognised in discrimination law for some time. It comes into operation where a decision is made, or a “condition, requirement or practice” is imposed, on what seems to be a “neutral” ground, but where, when the underlying circumstances are considered, the decision will impose a serious detriment on those with a protected characteristic.

(i) Reasonableness defence to indirect discrimination

However, because in such cases there may be good, non-discriminatory, reasons for the imposition of these conditions, s 7B of the SDA requires that the “reasonableness” of the decision be considered before it is concluded that it is discriminatory.

Indirect discrimination: reasonableness test

 7B (1)   A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection   … 5B(2) … if the condition, requirement or practice is reasonable in the circumstances.
 (2)   The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include 
(a)   the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and 
(b)   the feasibility of overcoming or mitigating the disadvantage; and 
(c)   whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

Here, sadly, it seems that for whatever reason, the factors set out in s 7B(2) were not considered in any detail. His Honour commented:

[37] The respondents’ pleaded defence does not rely on s 7B.  In closing submissions, their lead counsel made reference to reliance on the provision, but made no attempt to explain how it applied in this case, let alone any attempt to discharge the burden of establishing that was so required by s 7C.  I am therefore unable to understand how it is even conceptually able to be advanced that the imposed condition was reasonable in the circumstances, let alone be satisfied that the burden of establishing that this was so has been discharged.

Since it would be pity for an important case like this to be decided on a technical failure of the respondent’s counsel to raise these matters, I will offer some brief comments here as to why, in fact, it could have been argued that the “indirect” discrimination here was perfectly reasonable.

• What was the actual “disadvantage” imposed by the imposition of a condition that users of the app were seen to be female and not male? The exclusion of the applicant from the app involved an inability to access a social media site explicitly aimed at females (that category only including those who were biologically women). It was not as if this were some major public benefit which the applicant was cut off from. Nor was it as if there were no other places on the internet where the applicant would have been “affirmed” as female.
• Was it feasible to overcome or mitigate the disadvantage? No, not if the stated purpose of the app was to be fulfilled, to be a place for biological women only.
• Was the disadvantage “proportionate” to the result aimed at by Ms Gover? Yes, it was precisely targeted to avoid the outcome that a social media app designed for women would be invaded by someone who was biologically male.

In short, I would argue that indirect gender identity discrimination was not made out here, as under s 7B the condition imposed by Ms Grover was reasonably targeted to achieve the lawful outcome that she only wanted those who are biologically female to use the site.

(ii) “Special measure” defence

However, and perhaps more significantly for a future appeal (given that the chance to argue the s 7B factors may no longer be available), it seems to me that Giggle and Ms Grover did have a strong case for a complete defence against the s 5B(2) claim, based on s 7D(2).

As noted above, s 7D(1) allows for discrimination not to be unlawful where it amounts to a “special measure for the purpose of achieving substantive equality”. The concept relies on a provision of the international agreement which initially underpinned the SDA, the UN Convention for the Elimination of All Forms of Discrimination Against Women (1979) (CEDAW). That is a convention which explicitly bans detrimental treatment of women in comparison to men. It allows, however, “special measures” which amount, in common parlance, to “affirmative action”, where social and historical factors will impose a detriment on women which can only be overcome by measures explicitly aimed at improving the condition of women. (See paras [81]-[84] of the judgment outlining the background.)

I commented on these issues in my previous post on this litigation. But it seems worthwhile to go over this material here again.

Does a s 7D activity aimed at overcoming the practical detriments of sex discrimination, 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:

7D(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).

This seems to mean that, whenever there is a practice that satisfies any one of the paragraphs of s 7D(1), (here s 7D(1)(a), a special measure to achieve equality between men and women) it cannot be regarded as discriminatory under any of the listed provisions in s 7D(2), which includes s 5B (the gender identity discrimination provision). 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, 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. If the unfortunately well known propensity for men to harass and intimidate women online will make it harder for women to engage on issues concerning women online, then it seems perfectly reasonable to provide a service of this sort which excludes men. And if those features of male behaviour seem to be reflected even in the online contribution of biological males who identify as women, then it seems fair to allow those running such a network to make the decision to exclude those who are biological males. Whether or not these propositions are true, it seems only fair that women ought to be allowed to make their own judgment on these matters, rather than being directed by those who are male that they must allow them to join.

Unfortunately, the s 7D argument did not, with respect, receive appropriate consideration by Bromwich J. The whole issue was dismissed in the following terms:

[86] It is obvious and logical to read s 7D(1) and 7D(2) together, so that a special measure falling within s 7D(1)(a) (discrimination between men and women) does not constitute discrimination only as described in s 5 (sex discrimination).  Any other interpretation would be unworkable and nonsensical.  It simply cannot be that a special measure of advancing substantive equality between men and women provides any shield from gender identity discrimination, any more than it would provide a shield against discrimination on any of the other grounds listed in s 7D(2).  The respondents’ contention must fail.

With respect, the conclusion that the defence provided by s 7D(2) must be “read down” so that, for example, provision of special measures to equalise the position of “men and women” can only be a defence to s 5, and not to the other provisions explicitly listed in s 7D(2), is by no means “obvious and logical”. More importantly, it is not what Parliament has enacted. Parliament has chosen to provide a blanket defence against the specific forms of discrimination listed in s 7D(2), where it can be shown that what has been done amounts to a “special measure” described in s 7D(1). Redrafting s 7D(2) is a job for the Parliament (if it chooses), not for a judge whose task it is to apply the law. On this basis alone, the ruling seems incorrect.

4. Is the legislation valid?

There were other reasons put forward by the respondents as to why there was no action available. I just mention these briefly.

(a) External affairs powers

It was put to the court that the provisions of the SDA being relied on here were not valid laws of the Commonwealth Parliament, as they did not implement the international conventions on which the SDA was based.

In relation to one of those conventions, CEDAW (noted above), Bromwich J held that the gender identity discrimination claim here would not be supported by that convention. In short, the reason is that CEDAW prohibited detrimental treatment of women by the favouring of men. But here the claim was not of discrimination between men and women; the applicant was claiming as a woman to have been discriminated against by another woman. Hence CEDAW could not be used to support this aspect of the SDA. His Honour said:

[179] The obligation to prohibit discrimination against women created by CEDAW and defined in Art 1 is specifically a reference to discrimination that places women in a less favourable position than men.  Section 22, read with s 5B, is therefore incapable of being an implementation of this obligation to the extent that it could be relied upon by persons alleging (as Ms Tickle does) that they have been discriminated by being treated in the same way as men.

He also noted at [180] that in any event it was not clear that the CEDAW protection for women applied to “transgender women”- but he declined to decide this issue as it was not necessary for this litigation.

However, Bromwich J found that there was an alternative justification under the “external affairs” power for the relevant SDA provisions here. He noted that the SDA was now also based on the International Covenant on Civil and Political Rights (the “ICCPR”), and while that covenant does not explicitly provide protection on “gender identity” grounds, accepted the applicant’s argument that art 26 of the covenant can be interpreted as so doing. Article 26 prohibits discrimination on a number of specific grounds, and then adds the words “or other status” at the end. His Honour ruled that these words could be interpreted to include “gender identity”- see paras [187]-[188]. I will leave further comment on these issues for colleagues with more expertise on international law, but will simply note that this is a very slender basis on which to erect a major area of discrimination law which is hotly contested.

(b) Corporations power

Finally, there was an alternative constitutional basis which was held to support the law. Bromwich J accepted the argument that the law could be based, in the alternative, on the power over trading corporations contained in s 51(xx) of the Constitution- see paras [189] ff. The fact that “a purpose of Giggle was to turn a profit through trading activities, if only to support the continued existence of the Giggle App to advance its stated primary purpose” ([193]) was sufficient to characterise Giggle as such a corporation. Hence the view was impliedly accepted that regulation of the activities of Giggle by requiring that it not engage in “gender identity discrimination” was supported by the Commonwealth power over trading corporations.

Again, for the moment I will leave discussion of whether this is a reasonable view of the scope of the corporations power as a matter of Constitutional law. Presumably that power is viewed as being very broad since the High Court decision in New South Wales v Commonwealth (2006) 229 CLR 1 (the Work Choices case). Whether it is so broad as to extend to regulating the power of corporations to offer services to members of the public (as opposed to dealing with relations with employees) is a question I will leave for further consideration.

5. Implications and prospects for the litigation

To conclude, my view is that the decision in this litigation was wrong in law, as a matter of interpretation of the SDA. The clear defence provided in s 7D(2) against a claim based on s 5B, where there was a “special measure” put in place to support the interests of women, should have meant that Giggle and Ms Grover were not guilty of unlawful discrimination. As well as the s 7D(2) defence, a proper consideration of the s 7B “reasonableness” factors when applied to this claim of indirect discrimination, should have led to the view that even if there was a prima facie case of indirect discrimination, the decision made here was reasonable.

I also remain in some doubt as to whether the relevant parts of the SDA dealing with gender identity discrimination can be justified as constitutionally valid under either the external affairs power or the corporations power, though given my views on the failure to breach the SDA this issue did not need to be resolved for the applicant’s claim to have failed.

From the above it will be clear that I think this decision should be overturned on appeal, either in the Full Court of the Federal Court or the High Court of Australia. The issues involved are so important that, if leave is required at either of those stages, it should be granted.

Bromwich J’s comments on the “changeability” of sex, as I noted above, arguably over-stated the developments in the law in that area, and in any event were not necessary for resolution of these proceedings. The question of the application of the word “sex” in Australia’s premier law dealing with “sex discrimination” is vital for proper protection of the rights of women to female-only spaces and facilities. Proper resolution of these issues is also crucial for protection of freedom of assocation, freedom of speech, and religious freedom in Australia.