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.

1. The facts and legal issues

In brief, Sall Grover had set up “Giggle for Girls” as a social media app designed to be used by “those born women”. She screened those who applied to join and removed anyone who seemed to be male. Roxanne Tickle, the respondent in this appeal, had joined but was removed after review. The respondent sued for breach of the SDA s 22, which forbids discrimination on various “sex-related” grounds in the area of provision of services.

The action alleged discrimination on the basis of “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.

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.

Here it was alleged that the respondent Tickle had been the victim of gender identity discrimination. Another key provision, however, is s 7D of the SDA (which s 5B(3) above says has priority where it applies):

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).

This “special measures” provision recognises that some groups have been subject to historical disadvantage for various reasons, and that some forms of “affirmative action” might be justified to achieve “substantive equality”. One case I have previously noted found that running a women-only gym class was an example of this: see Walker v Cormack [2011] FCA 861.

In the trial decision a claim for “indirect discrimination” under s 5B(2) was found to have been made out, and the judge ruled that the defence under s 7D(2) could not apply, as the provision should be read “distributively” so that measures to achieve equality on the basis of sex could not excuse discrimination on the ground of gender identity.

2. The appeal decision

There were two judgments handed down on appeal, one by Perry J, and a joint judgment from Abraham and Kennett JJ. All judges agreed with the outcome of the appeal, which was that unlawful discrimination had been established and that Sall Grover and Giggle had to pay damages to Roxanne Tickle and the costs of the litigation. However, the basis for discrimination was ruled to be direct, rather than indirect, discrimination (which seemed to provide the reason for an increase in the damages award.) The judges also ruled that what seemed to be an exception for “special measures” in s 7D did not apply. In addition, the joint judgement made some detailed findings about the meaning of the word “sex” in the SDA (at paras [268]-[283]), which their Honours said were necessary to resolve issues in the case. (It seems that these comments were not supported by Perry J, who held at paras [27] and [45] that it was “unnecessary to resolve” the definition of sex.)

I comment on these issues below.

(a) Direct or indirect discrimination?

The distinction between “direct” and “indirect” discrimination is a fundamental one in the law on this topic. Direct discrimination occurs when a “protected attribute” is a clear reason for a decision that operates detrimentally to someone with that attribute. For example, a business which decides that it will not employ an Asian person for a role that they could perform, because they are Asian, is engaged in direct discrimination on the basis of race. “Indirect discrimination” occurs when a decision is made on a ground which appears to be lawful and not on the basis of a “protected attribute”, but which is in fact a disguised form of discrimination on that ground. One example sometimes given is that in the past some employers would impose a minimum height requirement on employees- this may work against applicants from some ethnic groups which tend to be shorter than others.

Under s 5B of the SDA, direct discrimination is prohibited under s 5B(1), where less favourable treatment is given “by reason of” a person’s “gender identity”. Section 5B(2) deals with indirect discrimination, where a “condition, requirement or practice” is imposed “that has, or is likely to have, the effect of disadvantaging persons” of a particular gender identity.

The trial judge (Bromberg J) had ruled that the respondent Tickle had not experienced direct discrimination, partly because the appellants were not shown to have been actually aware that Tickle was a “transgender woman”. The lower court finding had been based on indirect discrimination (somewhat artificially finding that a “condition” of acceptance into the app was that the applicant appear to be “cisgender”.)

The members of the appeal court disagreed here. On this point, I think they were correct. One particular point to note is that the definition of “gender identity” includes “gender-related… appearance”. The decision to exclude Tickle from the app was indeed conceded to have been made on the basis of a male appearance. As Perry J put it at para [152]:

Ms Grover and Giggle had a policy of excluding transgender women from the Giggle App, and applied that policy to Ms Tickle by denying her access to the Giggle App on the basis of Ms Grover’s visual perception that Ms Tickle was a man and, therefore, her gender-related appearance.  This was clearly established on the evidence and accepted by the primary judge.

Hence the exclusion was a case of “direct discrimination”- see the summary by Perry J at [157]. The joint judgment also noted this at [264]:

Ms Grover made her decisions in relation to Ms Tickle solely on the basis of viewing the latter’s onboarding selfie and her conviction that that photograph showed a male person (at J [131]). Ms Tickle’s selfie was in evidence and we were taken to it in the course of argument in the appeal. Although the photograph presents Ms Tickle as a woman (eg hair, clothing), there are features of her appearance that may be considered discordant with that presentation. Ms Tickle’s appearance, it may safely be concluded, was the reason why Ms Grover concluded that she was not entitled to remain as a user of the Giggle App; and that appearance had elements (“characteristics”) that generally appertain to, or at least are imputed to, transgender women – namely, for want of a better expression, male facial features.

In short, the respondent did not appear to be someone who was a biological woman. See also their conclusion at [284].

(b) The “special measures” exception in s 7D.

While I agree with the appeal decision on this issue of “direct discrimination” (that is, I agree that given the definitions in the SDA, it was direct discrimination to exclude Tickle from the app on the basis of “male features”), I do not agree with the way their Honours approached the exemption in s 7D.

Noted above, I remind readers that s 7D(2) seems to be very clear:

 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).

In other words, it is a complete defence to an action based on s 5B (along with the other listed provisions) if you can establish that what you have provided is a “special measure” “for the purpose of achieving substantive equality between: (a)   men and women”, as spelled out in s 7D(1). It seems strongly arguable that what Grover and Giggle had set up, by providing a “female only” social media app, would fit within the category of a “special measure” to allow women a place where they need not deal with the behaviour of men online. As noted above, a female gym class had already been accepted as this sort of space.

I criticised Bromberg J’s analysis of this provision in my post on the trial decision quite strongly. In effect, rather than taking s 7D(2) at face value (what I would call a “straightforward” reading of the provision) as providing a defence against claims made under all of the provisions listed, he argued that the various subparagraphs of s 7D(1) needed to be “distributed” amongst the breach provisions listed in s 7D(2). On this reading, a special measure to achieve equality on the basis of sex under s 7D(1)(a), would only provide a defence against a claim of discrimination on the basis of sex brought under s 5, and not against other actions on other grounds.

His Honour had ruled that an obvious reading of s 7(2), providing a defence against all the sections listed, was “unworkable and nonsensical”. The comments on appeal are not quite so dismissive, but are also, with respect, quite wrong. Perry J at [71] at least concedes that a straightforward reading of s 7D(2) is “an available one on a literal reading”. Abraham and Kennett JJ note at [290] that a straightforward reading “works grammatically”, “does not strain the language of s 7D(2)”, and “indeed, this is the more natural construction”.

However, in the end all of the appeal judges say that on the basis of “context”, s 7D(2) cannot mean what it seems to clearly mean! They refer to a principle of interpretation with the label reddendo singula singulis, but like all such principles this cannot override the clear intention of the legislation. Indeed, Perry J even resorts to the suggestion that s 7D(2) needs additional words read into it, “as the case may be”- see para [80]. But the High Court has clearly spelled out that there are very narrow circumstances where words can be inserted into legislation by a court- see Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9. As the majority said there, while there are some rare cases where reading in words would be appropriate:

[40]… In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution[75].

Here it seems clear that if Parliament had intended a “distributive” meaning, they could easily have used precise language to achieve that goal. Perry J offers what her Honour views as obvious examples of why the straightforward reading would produce unexpected results. Perhaps the strongest example is at para [75] (1), that the ordinary meaning of the words would mean that someone could offer “a women-only adult swim class that excluded lesbians”. I offer no opinion on whether that would be a good thing, but I note that, for example, one can imagine a confessionally Muslim group wanting to do precisely such a thing reflecting their religious commitments. Is it obvious that the SDA should make this unlawful? I don’t think it is.

In any event, whether or not Justice Perry or I are correct in our respective guesses about such things, the undeniable fact is that Parliament has chosen to include a clear defence applying to actions under the named provisions where “special measures” have been provided. The members of the Full Court all concede that “special measures” can be valid even if aimed at benefiting a sub-set of the protected class (that is, they do not have to be open to “all women”, they can be aimed at a subset of women.) So even without being able to define “women” as “those born women”, s 7D can be applied to, to use a phrase that has become common, “gender-critical women”.

But did this issue- the definition of “sex” and whether a “woman” has to be biologically a woman, need to be resolved? Perry J at [81] thought not. But Abraham and Kennett JJ disagreed.

(c) The meaning of “sex”

Many of those following this case will be familiar with the decision of the UK Supreme Court in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16. I wrote a comment on that decision when it was handed down, explicitly compared it to the trial decision in Tickle v Giggle, and pointed out why it was a much better analysis of the question of the meaning of “sex” in discrimination law. In particular, the FWS decision held that “sex” in the UK discrimination law meant “biological sex” and offered detailed and persuasive reasons to support that view.

Astonishingly, the Full Court of the Federal Court fails in this appeal to engage with the detailed arguments from this highly relevant and persuasive decision from the UK Supreme Court. There is only one reference to the case in the whole appeal decision, at para [95] by Perry J, and the case is cited for the uncontroversial proposition that “a person’s gender identity may manifest itself in that person seeking to match their sense of self by changing their physical gender-related appearance, including by medical intervention such as surgical procedures and hormone treatments”. Apart from that, there is no interaction at all with this massively significant decision on an almost identical area.

This is particularly obvious in the passage in the joint judgment where Abraham and Kennett JJ do take it on themselves to offer a definition of “sex” and “woman” for the purposes of the SDA, at paras [268]-[283].

Bromberg J (at trial) and Perry J had said that this issue did not need to be resolved to determine this case. But the joint judgment disagrees. Their Honours Abraham and Kennett JJ say that they need to resolve the question in the following paragraphs:

267       The comparator referred to in Ms Tickle’s pleading is “a cisgender female”. It can be accepted that persons within that description correspond to those whom Ms Grover regarded as “women” and who (if they submitted a selfie that was sufficiently clear) were accepted as users of the Giggle App. The differential treatment of Ms Tickle in comparison to “a cisgender female” can only be attributed to her “gender identity” (rather than to some other, non-pleaded characteristic) if she too was a “female” at the time of that treatment.

268       It is for this reason that it is necessary to confront the argument, put at the forefront of Giggle and Ms Grover’s submissions below, that Ms Tickle “is not a woman” and “is a man”. If that argument is correct, it is difficult if not impossible to conclude that Ms Tickle was treated less favourably than a cisgender female because of her gender identity. That is because the differential treatment can just as readily be attributed to Ms Tickle’s sex.

With respect to their Honours, I do not agree. The point they seem to make is that the court needs to decide whether Tickle is a “female” before they can decide whether discrimination occurred on the ground of “gender identity”. But I fail to see why this is so. The court seems happy to use the phrase “cisgender female” to refer to a biological woman. If that can be accepted as a possible “gender identity” within the very fuzzy definition noted above, then Tickle can be said to have the gender identity of a “transgender female” or “transgender woman”- a phrase used in para [269]. The standard discrimination analysis can proceed by asking whether Tickle was treated detrimentally as a transgender female, than the treatment that would have been afforded to a “cisgender female” (ie a woman who looked like a woman). While the word “female” is used in both categories, it does not seem essential to settle the issue whether the word refers to biological reality or not. The definition of “gender identity” explicitly says that someone can have such an identity “with or without regard to the person’s designated sex at birth.”

So the first point to make here is that it may not have been necessary to rule on the meaning of “sex” and related terms to decide this case. (Indeed, as noted already, Perry J concluded that she did not need to so rule.) Still, the joint judgment concludes that they do need to decide.

They decide wrongly. There is one preliminary point which I agree with. At para [271] they note that the trial judge was wrong to conclude that Tickle must be regarded as a woman for the purposes of Commonwealth law, simply on the basis that a Queensland birth certificate so asserts. They are correct to say that the law of one State alone cannot determine an issue which is necessary to decide for the purposes of the law of the Commonwealth. They note that:

[271]… Section 109 of the Constitution dictates that the SDA prevails over any status afforded by the law of a State to the extent of any inconsistency between them. To put it another way, in the absence of any express recognition or adoption in the SDA of status or entitlement conferred by State law, such a status or entitlement cannot directly control the operation of the SDA. 

This analysis seems absolutely correct. (For those interested in my thoughts on the effect of s 109 where State and federal discrimination laws clash, see the article linked here.)

However, I do not necessarily accept their Honour’s next assertion in [272], which is that if a number of States and Territories (as opposed to just one) move to recognise biological males as females, then this may impliedly change the meaning of Commonwealth legislation. They offer no clear authority to support this view apart from a reference to the controversial ruling by the Family Court of Australia in Attorney-General (Cth) v Kevin and Jennifer [2003] FamCA 94; 172 FLR 300. I commented on this decision previously as follows:

[The decision] 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.

Hence I do not regard Re Kevin as strong authority supporting a change of the word “sex”. Nor, for reasons also discussed previously, do I think that there is other compelling authority supporting the view put forward by the joint judgment in Giggle v Tickle that:

[276] Therefore, to the extent that the term “woman” appears in the SDA or the concept of womanhood is important to its operation, it is not to be understood by reference to any narrow or rigid conception of femaleness. 

Their Honours cite extensively from the speeches and Explanatory Memorandum relating to the amendments in 2013 introducing the notion of “gender identity” and repealing the previous definitions of “man” and “woman”. But while these documents can be used to interpret legislation, the primary issue always remains: what language did Parliament actually use in the Act? Just as the FWS decision in the UK was able to point to many features of the UK law which assumed biological sex as the basis for the concept of sex, so we can find many such features in the SDA. As I explained in more detail previously, those features include:

• the basis of the Act being a treaty (CEDAW) explicitly designed to protect biological women (CEDAW contains a number of provisions relating to pregnancy and maternity, which clearly assume that the protected class of persons are biological women. See for example art 4(2) “protecting maternity”, art 11(2) referring to pregnancy and maternity leave, art 12(2) referring to “pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation”;
•  there are exceptions to the prohibition against “sex discrimination” listed in s 30(2), which justify the exceptions based on a range of issues such as the need “to preserve decency or privacy because they involve the fitting of clothing for persons of that sex”- para (c), or the searching of bodies- para (d), or activities in a lavatory- para (e), or “the occupant of the position is required to enter areas ordinarily used only by persons of the relevant sex while those persons are in a state of undress”- para (g). 
•  section 31 provides that it is not “unlawful for a person to discriminate against a man on the ground of his sex by reason only of the fact that the first – mentioned person grants to a woman rights or privileges in connection with pregnancy, childbirth or breastfeeding.” Here we see that there is a clear biological difference at issue, and a “man” may not complain that benefits are given to a “woman” connected with issues flowing from female biology.
• section 32, where it is assumed that the meaning of “the provision of services the nature of which is such that they can only be provided to members of one sex”, will be understood by persons making such decisions. It is often biology which will determine the nature of such services (such as a cervical swab or prostate test.)
• section 42 allows decisions based on sex to turn in part on whether “the strength, stamina or physique of competitors is relevant”, all of which are clearly impacted by biology.

The strongest authority provided for the view that sex can be changed was Secretary, Department of Social Security v SRA (1993) 43 FCR 299, [1993] FCA 573, where 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, a fact conceded in the joint judgment in Giggle at [281]. But then, doubling down on their view about how contemporary language should change the law, they go on to offer the following completely unnecessary comment:

[282] … Indeed, it could be argued that ordinary usage in Australia now goes further and (contrary to the result in SRA) accepts a man who has adopted a female social presentation but not had gender affirming surgery as a “woman”. It is not necessary to decide that issue in the present case.

With respect to the majority, their view that sex is changeable is not supported by binding authority or the SDA, and the conclusion at [282] that “transgender people are properly referred to by descriptors applicable to members of the sex to which they have “transitioned”” is not required by the Act. It is at any rate a highly controversial and wide-reaching comment that is not accompanied by anything like the depth of careful analysis of its implications that was warranted (such as had been provided in the FWS decision.) And, as noted above, there is a very strong argument that these comments were not necessary to resolve the issues in this litigation.

(d) Aggravated damages and “misgendering”

Finally, but briefly, I need to comment on the way that “aggravated damages” were dealt with in this appeal decision. The joint judgment decides that, since the basis of discrimination has now been found to be direct rather than indirect, the court needs to re-assess the damages award, and it does so by increasing compensatory damages to $12,000 and making an award of “aggravated damages” of $8,000. In particular, the joint judgment singles out what it refers to as “misgendering” of the respondent:

314       This case concerns whether Ms Tickle had established discrimination by Ms Grover. As evident from the reasons in relation to the liability aspect of this appeal, this case is concerned with the meaning of various terms and provisions in the SDA. This is an argument based on the construction of the SDA. That Ms Grover was contending Ms Tickle was not a woman within the meaning of the SDA did not require her to repeatedly misgender Ms Tickle during the primary hearing. It was unnecessary for the bona fide conduct of her defence. Conducting her defence did not require Ms Grover to refer to Ms Tickle using male pronouns. Ms Grover is entitled to her beliefs, but the belief of Ms Grover was not relevant to the determination of the issue of statutory construction. Further, Ms Grover’s belief, accepting it was genuinely held, did not render her repeated misgendering of Ms Tickle a bona fide part of the conduct of her case. Some of her conduct was gratuitous, disrespectful and unnecessary to the conduct of her case. It did not advance her defence. The primary judge accepted that the conduct was hurtful to the applicant. In this respect the manner in which Ms Grover conducted her case aggravated the hurt suffered by Ms Tickle.

I did not observe the conduct of the litigation, so cannot offer my own opinion on whether Ms Grover behaved in a way which was  “gratuitous, disrespectful and unnecessary to the conduct of her case.” But the reference to “misgendering” and use of pronouns as a part of the behaviour justifying aggravated damages is disturbing. The case very much revolved around the issue of whether Tickle should have been treated as a male or a female! The implied suggestion seems to be that, contrary to the whole basis of her claim, Ms Grover or her lawyers should have referred to Tickle as a woman. This is deeply concerning. In fact, the comments of the trial judge (who declined to award damages on this basis) are important. Quoted at para [310] of the appeal decision, Bromberg J had noted that the issue of sex was a key part of the case, that Ms Grover had a bona fide belief that Tickle was a man, and that “there must be scope in which persons can put forward an argument, both in proceedings and in their public discussion of them, where it is genuinely held and a legitimate part of their case.”

3. Implications of the decision

At the end of a long post all I can do is briefly note some of the disturbing implications of this decision. I have noted already my disagreement with key aspects. In particular, the defence in s 7D should have been applied as written to completely exonerate Ms Grover and Giggle. The majority did not need to opine on the changeability of sex as a protected characteristic. I gather a High Court appeal will be pursued, and I think it should be successful.

In the meantime, does this decision mean that all “female only” spaces, associations and activities are now open to biological males who identify as female? The sad answer is- we don’t know! But the broad and unnecessary comments, especially the obiter comment that now change of sex for legal purposes should just flow from “self-ID” with no surgery or even documentation (see [282]), will hang over all who want to protect the rights of women to enjoy same-sex spaces and facilities free from male presence.

To briefly come to the issues around law and religion here: many religious groups have a strong commitment to biological sex as a gift from God which is not changeable. If asked to accept a biological male as a woman in their context, those that have clear teaching on the topic may be able to rely on s 37 of the SDA, which provides in part that:

37(1)   Nothing in Division 1 or 2 affects:.. (d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

Section 22, relating to provision of goods and services, is contained in Division 2. If the “doctrines, tenets or beliefs” of a religion require biology to be the determining factor in decisions about who is a man or a woman, religious groups should still be able to act in accordance with those beliefs. But they, like other members of the community who want to make decisions based on biological reality, would like to see the law correctly interpreted and can hope for a better outcome from an appeal in this case.