The Federal Court of Australia has held that a transgender woman experienced indirect gender identity discrimination after being denied access to a women-only social media application.1
Background facts
Roxanne Tickle sued Giggle for Girls Pty Ltd and its CEO, Sally Grover, for unlawful gender identity discrimination in the provision of services under the Sex Discrimination Act 1984 (Cth) (SD Act).
Ms Tickle was assigned male at birth but identifies as female and is legally recognised as female on her updated Queensland birth certificate.
Ms Tickle alleged that she was subject to unlawful discrimination when she was prevented from using the Giggle app, marketed as a "digital women-only safe space" for social communication. To access the app, users uploaded a "selfie" which was assessed by AI software to distinguish between male and female appearances. Access was granted if the AI determined the user was female.
Ms Tickle initially gained access in February 2021 through the app's AI process but was blocked in September or early October 2021 after Ms Grover reviewed her supplied photograph and concluded that she was male.
Court clarifies definitions of gender identity and sex under the Commonwealth legislation
The SD Act defines "gender identity" as a person’s gender-related identity, appearance, mannerisms or other gender-related characteristics, irrespective of their designated sex at birth. The court noted that gender identity includes both cisgender and transgender identities.
The terms "sex", "man" and "woman" are not defined under the SD Act. However, the Court found that "sex" was broader than biological traits at birth or a binary concept of male and female. It includes non-binary statuses and can change over time. Under the SD Act, determining a person’s sex involves considering biological, physical, legal and social factors. In this respect, the Court concluded it was sufficient that Ms Tickle was recorded as female on her birth certificate for her to be, at law, of the female sex.
Was Ms Tickle unlawfully discriminated against on the basis of her gender identity?
The Court determined that Ms Tickle was indirectly discriminated against on the basis of her gender identity because the Giggle app required users to appear as cisgender women (a female whose gender corresponds to their sex at birth). This requirement disadvantaged transgender women (a female whose gender does not correspond with their sex at birth) who were excluded from the app if they did not have the appearance of a cisgender woman.
Direct discrimination would have occurred if Ms Grover knew Ms Tickle was transgender and excluded her on that basis. However, Ms Grover likely did not know Ms Tickle's gender identity when she reviewed her selfie and instead excluded her because she believed Ms Tickle was a man.
Court rejects "special measures" defence
The respondents submitted that sex at birth is the only basis to be considered a man or woman. Therefore, the respondents argued that their actions constituted sex discrimination, not gender identity discrimination.
The respondents then argued that sex discrimination was not unlawful in the circumstances because it was a "special measure" for the purpose of section 7D of the SD Act. A valid "special measure" authorises discriminatory treatment in circumstances where it is necessary to achieve substantive equality. On this basis, the respondents asserted that female-only access to the Giggle app was a special measure for the purpose of achieving substantive equality between men and women, such that the exclusion of Ms Giggle (who they argued was male) did not constitute unlawful discrimination in breach of the SD Act.
The Court found the special measures defence might have succeeded if a cisgender man claimed sex discrimination by being excluded from the app. However, given the Court rejected the respondents' defence that sex is determined at birth (instead finding that sex, on its ordinary meaning, is changeable), the Court in turn rejected this argument, holding that the purported special measure did not protect against gender identity discrimination.
What role did expert evidence play?
The respondents presented reports from Dr Wright, Dr Joyce and Dr Stock, which played a limited role in resolving the legal issues and demonstrates the importance of carefully considering whether to rely on expert evidence.
Dr Joyce’s report was not accepted as expert evidence due to her lack of relevant expertise in gender, sex or law. Dr Wright’s report, which focused on biological sex, was also considered to be of no assistance to the Court, as Ms Tickle is a legal female, and the alleged discrimination was based on gender identity, not sex. Similarly, Dr Stock’s report did not assist the Court as it debated the nature of womanhood, which was outside the legal scope of the case.
Constitutional challenge to Queensland’s birth certificate provisions for gender recognition
Ms Tickle was recognised as female by an updated Queensland birth certificate, issued under the Births, Deaths and Marriages Registration Act 2023 (Qld) (BDMR Act).
The respondents argued that the provisions of the BDMR Act which recognise a person as their reassigned sex after sexual reassignment surgery were inconsistent with the SD Act and therefore constitutionally invalid. The Court rejected this argument, finding no direct inconsistency because the SD Act does not define "sex", "man" or "woman", allowing State and Territory statutes to inform their ordinary meanings. Additionally, there is no indirect inconsistency as the SD Act and BDMR Act have entirely different legislative focuses.
The Court also relied on the external affairs power in s 51(xxix) of the Constitution (implementing Article 26 of the International Covenant on Civil and Political Rights (1966) and the corporations power in s 51(xx) of the Constitution.
Contemporary context and the rising prominence of sex and gender issues
This decision is the first to clarify that it is unlawful to exclude transgender females from "female-only" spaces. It comes at a pivotal moment in the ongoing global discourse on sex and gender identity. With high-profile events like the Olympics and the associated discourse regarding Algerian boxer Imane Khelif, public debates sparked by figures such as J.K. Rowling and the Tasmanian Civil and Administrative Tribunal's decision from May 2024 that the Museum of Old and New Art (MONA) was unlawfully discriminating against men by refusing them access to the "Ladies Lounge",2 issues of gender identity and discrimination are increasingly in the spotlight.
The Court’s ruling reflects the importance of legal recognition and protection for transgender individuals, reflecting broader societal shifts towards inclusivity and equality. It also underlines the increasing significance of self-identification in determining access to protections under anti-discrimination laws.
As these conversations continue to evolve, legal precedents like this will shape future policies and societal attitudes.
Key takeaways for employers
This case highlights the importance of inclusive workplace practices, irrespective of personal beliefs. The Court noted that Ms Grover's views on sex and gender identity were not a defence to discrimination. It is important that employers:
- review and update their policies and procedures to ensure that they do not discriminate against transgender individuals;
- carefully design and monitor AI and other automated systems to avoid biases that could exclude transgender individuals; and
- recognise and respect the gender identities of their employees.
For more information or assistance with reviewing and updating your policies or for support in navigating gender identity discrimination claims, get in touch with Lander & Rogers' Workplace Relations & Safety team.
1 Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960.
2 Lau v Moorilla Estate Pty Ltd [2024] TASCAT 58.
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