Rex Ahdar: A Judicial Slap and Tickle?

In a case that will not be forgotten quickly, if only for its bizarre name, the Federal Court of Australia on 23 August 2024 upheld a claim of discrimination by a transgender woman against a social network app catering solely for women and intended to be an “online refuge” and “safe space” for women. The transgender woman, Roxanne Tickle, after initially being accepted (by AI facial recognition software) onto the mobile phone app, was later taken off it by its CEO. The written judgment in Tickle v Giggle for Girls Pty Ltd (No 2), or Tickle v Giggle for short, is lengthy (86 pages and 283 paragraphs).

The judge, Justice Robert Bromwich, found that Giggle and its CEO and alter ego, Sall Grover, had indirectly discriminated against Ms Tickle in the supply of goods or services because of her gender identity. In 2013 “gender identity” had been added as another ground upon which discrimination is banned under the Sex Discrimination Act 1984, a federal statute.

Giggle said it had discriminated against Tickle because of her sex---Tickle being, in Grover’s sincere view, a male---and not because of Tickle’s gender identity. Now, as Neil Foster has ably pointed out, female-only apps would prima facie pass muster as a species of the Act’s exempted situations, being a vehicle (a “special measure”) genuinely designed to achieve greater substantive equality for women. And even if Tickle had been subject to discrimination this was, as the defence to indirect discrimination sets out, permitted if the impugned conduct was “reasonable in all the circumstances”.

The judge would have none of this and gave rather cursory regard to the defences. Tickle was “a legal female” insofar as she had successfully revised her individual status in 2020, the Queensland birth certificate now recording she was a woman. That Tickle was a woman was “legally unimpeachable”. Giggle had treated Tickle less favourably compared to the way it would treat a biological or CIS woman in the same circumstances. She was booted off the app because she was a transgender woman whereas if she had been a CIS woman she would not have been so rudely ejected.

The judge, understandably, did not wish to be drawn in having “to determine the metes and bounds of the meaning of sex”.

The Sex Discrimination Act had been breached. The remedy? Tickle most ambitiously sought $200,000 damages, a published written apology and reinstatement on the app. The Court awarded her $10,000 damages and costs. Reinstatement of Tickle was a non-starter as Grover had mothballed the app over a year earlier once the present legal dispute commenced. As for an apology “any apology given by Ms Grover, and any apology given by her on behalf of Giggle, would be through clenched teeth and utterly devoid of sincerity.  She would be doing no more than saying she was sorry, but she would not in fact be sorry at all.”  The final award of costs has yet to be fixed, although the judge did cap the award of costs on the constitutionality issue (a complex and arcane part of the case turning upon the constitutional validity of the gender-identity provisions in the federal discrimination statute) at $50,000.

We have not head the last of this dispute. Immediately after the verdict was announced Sall Grover stated she would appeal (Bettiza). Undoubtedly, Tickle would have done likewise if the decision had gone against him. Sex Discrimination Commissioner at the Australian Human Rights Commission, Dr Anna Cody, said she was “happy” discrimination had been recognised in the judgement (McKinnell): “I think that this judgement sends the message that we want an inclusive society in which all can participate, and that includes trans people who have a range of sexual orientations.”

Further consideration of the dispute by the Full Federal Court (comprising three judges) and thereafter the High Court (Chief Justice Gageler and six other justices) may perhaps reverse the outcome. As my friend Neil Foster has argued, the defences open to Giggle were given insufficient weight at trial and might prevail before the appeal judges.

Grover’s real beef is against the legislation, but that battle was lost in 2013 in Canberra when the new basis for prohibited discrimination (gender identity) was added by the Federal Parliament. If Grover and her supporters want to add to the $1.2m already said to have been incurred to fight this dispute then they better have deep pockets.

Is this a “landmark” case? In the ongoing culture wars, it is. Put alongside the Ukraine-Russia and Israel-Hamas/Hezbollah conflicts, or the cost of living crisis, I suppose not. It’s just a bit of a judicial slap of a giggling firm for maltreating a ticklish customer.

Rex Ahdar is an Emeritus Professor of Law at the University of Otago.

Sources

Tickle v Giggle for Girls Pty Ltd (No 2 [2024] FCA 960

Sofia Bettiza “Australian court rules in landmark case that asked 'what is a woman?’”. BBC News

Roxanne Tickle: Australian court rules in case that asked 'what is a woman?' (bbc.com)

Gabriella Power, Sky News, ‘Absolutely shocking’: Sky News host slams landmark gender identity case judgement (youtube.com)

Jamie McKinnell Transgender woman's exclusion from female-only app was unlawful, judge finds - ABC News

Neil Foster Tickle v Giggle: Sex and Gender Identity – Law and Religion Australia