Excluding a transgender woman from an app available only to women constituted unlawful discrimination based on gender identity, according to a landmark federal court ruling.
Roxanne Tickle downloaded the social networking platform Giggle for Girls, designed as an “online refuge” for women, in February 2021.
Users provided a selfie, which was evaluated by artificial intelligence software to confirm that they were a woman.
Ms Tickle’s photo was accepted, but her account was suspended later that year following a manual override.
The court case she has brought is the first alleging discrimination on the basis of gender identity since the Sex Discrimination Act was amended in 2013.
Sall Grover, CEO of the app Giggle for Girls. (AAP Photo: Bianca De Marchi)
Lawyers for the app’s CEO, Sall Grover, who was named as a defendant, denied discriminatory behavior.
They invoked an exemption from the Gender Discrimination Act and claimed that the app was a special measure designed to achieve substantial equality between men and women.
Judge Robert Bromwich today found that Ms Tickle had been indirectly discriminated against on the basis of her gender identity.
The judge ordered Ms. Tickle to pay $10,000 in restitution plus court costs.
The judge concluded that a claim for direct discrimination was dismissed, but the successful claim for indirect discrimination was based on the requirement for using the Giggle app that Ms Tickle had to have the appearance of a cisgender woman.
The court had previously heard that Ms Tickle has been living as a woman since 2017, had her birth certificate reissued in 2018 to reflect a name change and state her gender as female, and underwent gender reassignment surgery in 2019.
“Until this incident, everyone treated me like a woman,” she said during her testimony.
The argument of unchanging gender has failed, says judge
According to Ms Tickle’s lawyer, Georgina Costello KC, case law makes it clear that sex and gender, as well as man and woman, are not binary categories.
She argued that it was not a purely biological issue, but that it was partly psychological and partly social.
Reading out the summary of his decision today, Mr Justice Bromwich said the defendants had understood sex to mean a person’s gender at birth, which they believed was unchangeable.
“These arguments failed because the view advocated by the defendants was contrary to a long history of cases decided by courts over 30 years ago,” he said.
“These cases demonstrate that gender is fluid in its everyday meaning.”
Ms Costello had also rejected the argument regarding the exemption, arguing that it was a series of “artificial, ex post facto justifications” for discrimination.
Ms Grover’s lawyer Bridie Nolan argued that sex is biological and gender is a social construct, and denied that Ms Tickle had the “psychology of a woman”.
She told the court that her client felt “harassed and intimidated” by Ms Tickle’s attempts to contact her about the Giggle account. Before attempting to contact her by phone, eight emails remained unanswered.
Apology would be made “with clenched teeth”
The app was intended as a “corner of the internet” where women could find “sanctuary away from men,” Ms Nolan said, and its developers had “absolutely no idea that men could be seen as women.”
Ms Tickle had also requested a written apology, but Judge Bromwich refused to make that order.
“It is clear that any apology from Ms Grover and any apology she would make on behalf of Giggle would be begrudging and totally insincere,” he said.
“She would do nothing more than say she was sorry, but in reality she would not be sorry at all. She stands by her sincere beliefs.”
Roxanne Tickle had her access to the app revoked in September 2021. (AAP)
Ms Tickle’s legal team said she had suffered significant distress, injury and humiliation.
They claimed the harm was compounded by Ms Grover’s refusal to apologise and her “public denigration” of Ms Tickle, including comments in which she “consistently misgendered” Ms Tickle.
The court also heard that a third party had sold offensive goods to raise money for Ms Grover’s legal fees.
“All women are protected from discrimination”
Outside court, Ms Tickle said the trial had “stolen” the last three years of her life.
She spoke of being the target of hateful online comments and seeing merchandise created to ridicule and mock her.
“There is so much hate and bile towards trans and gender diverse people simply because of who we are,” she said.
“Sometimes it’s hard to remember that not all people are like that.”
Ms Tickle said the hate had not only affected her but had harmed many transgender and gender diverse people.
Ms Tickle said the trial had “stolen” the last three years of her life.
She hopes that the outcome of the proceedings will be “healing.”
“The ruling shows that all women are protected from discrimination,” she said.
“I brought my case to show transgender people that they can be brave and stand up for themselves.”
As Ms Grover left the courtroom, she said the decision was what she expected.
“Unfortunately, this is the verdict we expected and the fight for women’s rights in Australia continues.”
The app is currently not online.
