Gender Identity Discrimination Before Federal Court

The Federal Court will deliver judgment sometime in the next six months in the first claim of discrimination on the basis of gender identity that has been brought before it. In the matter of Tickle v Giggle For Girls, transgender woman Roxanne Tickle is suing the online application Giggle For Girls Pty Ltd for discrimination on the basis of gender identity after being blocked from using the service. This page summarises the issues the court will consider in this landmark case on gender identity discrimination.

Gender identity discrimination and the Sex Discrimination Act

Under section 22 of the Sex Discrimination Act, it is unlawful for a provider of goods or services to discriminate against another person on the basis of their sex, sexual orientation, gender identity, intersex status, pregnancy, relationship status or breastfeeding status by:

• refusing to provide goods or services or facilities
• the terms on which goods or services are provided
• the manner in which goods or services are provided or facilities are made available.

Facts of the case

The applicant lives in New South Wales and has her gender listed as female on her birth certificate following gender affirmation surgery. During 2021, she downloaded an application to her mobile phone. The application was known as “Giggle For Girls” and was designed for women and girls to share their experiences in a safe space.

The application made it clear that users must be women and requires new users to upload a photo of themselves which is then assessed by artificial intelligence. The applicant uploaded a photo of herself via this process and it was assessed as being a photograph of a female. She used the application successfully for a number of months, but subsequently logged in to find she was no longer able to post content or read other users’ posts. When she tried to access premium features, she received a message stating that she was blocked.

The applicant made a number of unsuccessful attempts to contact the owner and operator of the application.

She subsequently made a complaint of discrimination on the basis of gender identity to the Australian Human Rights Commission against both Giggle For Girls and its owner and CEO Sally Grover.

Giggle For Girls’ response

The respondents responded to the complaint as follows:

1. The Applicant was considered male based on a visual inspection of the selfie provided and was removed [from] the app on that basis. Further, the Applicant’s gender identity was not known to the Second Respondent or other Giggle personnel at the time of removal and did not inform the decision to preclude the Applicant from the app

• Giggle constitutes a special measure aimed to achieve substantive equality between men and women and its exclusion of males is reasonable in the circumstances; as such, the exclusion of males by Giggle falls within the exceptions provided pursuant to sections 7N, 7D and 32 of the SDA.

The respondents declined to take part in conciliation and the complaint was terminated.

Exceptions to anti-discrimination provisions

The Sex Discrimination Act contains several exceptions to its anti-discrimination provisions. The ones relied on by the respondents in this case are as follows.

Special measures intended to achieve equality

Under section 7D of the Act, a person does not discriminate if they take special measures to achieve substantive equality between men and women, between people with different sexual orientations, between people with different gender identities, or in favour of other classes of people who are protected under the Sex Discrimination Act.

Services for members of one sex

Under section 32 of the Act, a person does not discriminate if they provide services the nature of which can only be provided to members of one sex.

First gender identity discrimination case

The case is the first complaint of discrimination on the basis of gender identity to be decided by the Federal Court of Australia.

The applicant claims she suffered significant distress as a result of the respondent’s actions and statements, and that she was on the receiving end of a large-scale online hate campaign as a result of the incident, and that this impacted her mental health. She is seeking $200,000 in damages and aggravated damages.

The respondents argue that the applicant is a biological male, in spite of having undergone gender affirmation surgery and presenting as and living as a female.  

The outcome of the case is likely to have wide-ranging implications for single-sex spaces and activities in Australia.

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