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.

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.

I have published an opinion piece on the ABC Religion and Ethics website commenting on the litigation in Giggle v Tickle: “Why the Giggle v Tickle judgement is bad for women’s rights and a risk to religious freedom“. For regular readers, some of the comments will be familiar as drawn from my previous blog post on the case. But I have added some new material and updated to note the lodging of the application for special leave to appeal to the High Court.

From the conclusion:

I believe women’s rights and rights of religious freedom are under threat if the appeal decision in Giggle v Tickle stands. Hopefully the appeal to the High Court will restore clarity about how the SDA applies to these important issues.