I am disappointed that the High Court of Australia has denied special leave to appeal the decision of the Full Court of the Federal Court in Giggle for Girls Pty Ltd v Tickle [2026] FCAFC 64 (15 May 2026). The special leave decision, Giggle for Girls Pty Ltd (ACN 632 152 017) & Anor v Tickle [2026] HCADisp 209 (10 September 2026) very briefly records that:

[2] There is no reason to doubt the Full Court’s construction of s 7D(1) and (2) of the Sex Discrimination Act 1984 (Cth). Any appeal dependent on the demonstration of error in the Full Court’s construction of those provisions has insufficient prospects of success to warrant a grant of special leave to appeal. 

As readers of this blog will know, the case involved an attempt by Sall Grover to set up a social media app, Giggle for Girls, for those born female (biological women). Roxanne Tickle, born male but now identifying as female, tried to join and was excluded. Both at first instance and on appeal Giggle and Sall were found guilty of “gender identity discrimation” under s 5B of the Sex Discrimination Act 1984 (Cth) (“SDA”). In particular a defence under s 7D of the SDA was found not to apply. The High Court has now supported that view in its very brief comment in denying special leave to appeal.

With respect to the Court, I disagree. I have previously provided a detailed comment on the Full Court decision in which I argued that the Federal Court’s discussion of the defence in SDA s 7D(2) was deeply flawed. The decision wrongly interprets a provision that Parliament had said provided a defence against all discrimination actions where “special measures” had been put in place to achieve substantive equality between men and women. The Full Court said a “distributive” reading was preferred, linking defences only to one specific ground of possible discrimination at a time. But it acknowledged that this was not the most natural way to read the text.

I won’t revisit my reasons for disagreeing here. As well as my blog post linked above, I have published a comment on the ABC Religion and Ethics website, “Why the Giggle v Tickle judgement is bad for women’s rights and a risk to religious freedom“ (June 29, 2026) where I discuss the issues. Some later blog posts responded to a critique of my ABC piece by another academic, Professor Paula Gerba: see here and here – the second link there deals explicitly with the “special measures” argument.

It is interesting to note that the refusal of special leave is narrowly worded to comment on the s 7D point. This was said to be primary appeal point in the application for special leave. Presumably counsel for the appellants thought that this might be more promising than the wider issue as to the meaning of “sex” in the SDA. It might be suggested that this wider issue may have been of more interest to the Justices of the High Court, especially as their counterparts in the UK have recently considered that in relation to their discrimination law: see For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16. This does mean, however, that the High Court may in future be willing to take on an appeal in other litigation directed to that point.

The “special leave” system in the High Court of Australia is clearly needed to provide some management of the workload of a busy court which hears appeals from all over the country. Refusals of special leave do not, however, amount to a binding precedent of any sort, as they have to be disposed of quickly. That means that this decision does not stand for the proposition that the decision of the Full Court of the Federal Court below was “correct”. (Even though the court said that there were not “sufficient prospects of success”, that does not mean the lower decision is formally approved.) This means that the decision retains the status it already had- a decision of a superior appellate court which is formally binding on judges below in the Federal Court of Australia and lower federal courts. Other State and Territory courts will treat the decision as persuasive but may decide not to follow it, if there are good reasons not to do so.

Nevertheless, the Full Court decision will be influential in other similar cases, and this is to be regretted. It entrenches the view that (unless defences from other parts of the SDA apply, such as sections 37 and 38 for religious groups) women-only spaces cannot generally be established where there are biological males who assert the right to be treated as female. It seems that the quickest route to changing this situation will now require Parliament to amend the SDA to represent biological reality.