今日吃瓜

An appeal against the landmark Giggle v Tickle discrimination case has been dismissed by the Federal Court this afternoon, with the Court setting aside the original finding of indirect discrimination in favour of direct discrimination.

The Giggle for Girls app and founder Sall Grover have been ordered to pay $20,000 in damages, a further $10,000 than the initial findings.

The full bench upheld the decision that the discrimination faced by Roxanne Tickle on the grounds of gender identity was contrary to Section 22 of the Commonwealth Sex Discrimination act 1984 when read with section 51B and聽that聽under the Act,聽the concept of聽womanhood聽鈥渋s not to be understood by reference to any narrow or rigid conception of femaleness鈥�.

鈥淭he full court has found that Giggle For Girls and Ms Grover both excluded Ms Tickle from the Giggle app and refused to re-admit her on the basis of her gender-related appearance by reference to her selfie,鈥� Justice Melissa Perry told the court.

鈥淭his amounted to direct discrimination by reference to a characteristic that pertains to people of Ms Tickle鈥檚 gender identity, being a transgender woman.鈥�

Taking place in early August last year, Grover and Giggle for Girls attempted to overturn the 2024 finding that they discriminated against Tickle by removing her from the female-exclusive platform in September 2021.

The ruling was the first gender identity discrimination case in Australia to reach the federal court, and the first time the updated聽Sex Discrimination Act聽(SDA)聽had been tested in a court.

Justice Robert Bromwich ruled that Tickle was indirectly discriminated against based on the fact that she is a trans woman.

鈥淭he concept of sex has broadened further over the (past) 30 years,” Justice Bromwich said in his ruling. “Especially by reason of the wide scope that now exists for legally changing the sex of a person on official birth records.

“The acceptance that Ms Tickle is correctly described as a woman, reinforcing her gender identity status for the purposes of this proceeding, and therefore for the purposes of bringing her present claim of gender identity discrimination, is legally unimpeachable.鈥�

Equality Australia Legal Director Heather Corkhill said today’s ruling was a clear and significant win for everyone protected under the Act, including women and LGBTIQ+ people.

鈥淔or decades, Australian laws have recognised that a person鈥檚 legal sex is not limited to the sex they were assigned at birth 鈥� any other interpretation would deny the reality and existence of trans people,鈥� she said.

Tickle’s “identity is as a woman and as a transgender woman鈥�

In the appeals court, Tickle鈥檚 barrister, Georgina Costello KC argued that a review of the evidence easily led to the conclusion that 鈥渇or the purposes of the Sex Discrimination Act,聽Ms Tickle is a woman and she was a woman when the appellants excluded her from the Giggle app.鈥�

鈥淪he presented her gender identity to the world and to the Giggle app as a woman,鈥� she said. 鈥淗er identity is as a woman and as a transgender woman.鈥�

Tickle was rejected from the app by Grover herself after she reviewed an onboarding selfie Tickle uploaded, in which she presented as a woman with a 鈥渓ow-cut top鈥� and hair down.

Costello聽suggested that Grover had a 鈥渨ilful blindness to gender identity鈥�, and knew Tickle was transgender but continued to treat her as a man because she didn鈥檛 look 鈥渟ufficiently female鈥�.

鈥淪he thinks she鈥檚 dealing with a woman, then she looks at the photo and decides she is dealing with a man,鈥� she said.

Grover has always maintained that she did not know Tickle was transgender, and that Bromwich鈥檚 previous finding that direct discrimination had not occurred was correct.

Their argument is based around the idea that Giggle was designed to be a 鈥渟afe space鈥� for women, and was therefore permitted a 鈥渟pecial measure鈥� under the SDA, which allows discrimination in the pursuit of rectifying disadvantages between men and women.

鈥淚t鈥檚 sort of, a shield, to protect yourself from from the regular operation of the聽Sex Discrimination Act,鈥� Monash human rights law professor聽Paula Gerbertold聽Star Observer at the time.

鈥淪he鈥檚 trying to also use it as a sword, though. She鈥檚 trying to say鈥� 鈥榃ell, it鈥檚 a special measure so I can discriminate against people on the basis of their gender identity.鈥�

鈥淎nd that鈥檚 what we鈥檙e really looking for the court to decide. If it聽is聽a special measure under the聽Sex Discrimination Act,聽and she can have a women鈥檚 only space, can she then exclude certain groups of women? What about lesbians?鈥�

Giggle and Grover have been receiving support from the international arm of a powerful group called the , a US-based conservative Christian legal advocacy organisation that campaigns against abortion access and LGBTQ rights, and has supported efforts to restrict reproductive healthcare and overturn Roe v Wade.

Grover has fundraised widely throughout the legal process, 聽that the funds 鈥渨ill be used exclusively to cover legal fees and associated costs incurred in the appeal proceedings, any subsequent hearings, and efforts necessary to ensure this important matter is fully and properly determined.鈥�

Although there has been no declaration of how much money has been raised, the website notes that any excess funds remaining once the case ends will be held on trust and donated to other litigation efforts and advocacy projects which support 鈥渟ex-based rights, and constitutional legal challenges to ideological overreach.鈥�