On the first day of a four-day appeal hearing, the company and owner behind a “women-only” social media platform has challenged findings that it discriminated against transgender woman, Roxanne Tickle.
Social media app Giggle for Girls and chief executive Sally Grover have begun appeal proceedings in the Federal Court against an August 2024 judgment that found they discriminated against transgender woman Roxanne Tickle by refusing her access to the online platform.
Although the Giggle app’s artificial intelligence determined Tickle was female in February 2021, she discovered she was kicked off in September. An appeal to Giggle was refused the following month.
Primary judge Justice Robert Bromwich ordered Giggle for Girls and Grover to pay $10,000 in compensation to Tickle.
Appearing before the full court on 4 August, Noel Hutley SC said Justice Bromwich erred in finding “sex” in the Sex Discrimination Act was not confined to being a biological concept, which referred to whether a person at birth had male or female physical traits.
Hutley also argued that on the “true construction” of the act, it was not discriminatory to be disadvantageous of a person because of their mannerisms unless those mannerisms related to their gender identity.
“I just want to be clear because one of the things that can easily happen in the analysis is a shift from a characteristic to a gender identity. It is also extremely important when one comes to define the condition, it has to be the condition that is imposed,” Hutley said.
“The way His Honour found it was not how it was imposed, but on reference to what he referred to as a cisgender woman. That leads to a confusion of analysis because one shifts so easily from gender characteristic to a gender identity the moment you start using terminology like ‘cisgender woman’ and ‘cisgender man’.”
Due to this, Hutley submitted that the evidence did not establish Tickle was refused access by reason of her gender identity.
Giggle for Girls’ case also relied on “special measures” as an exception to any discrimination and pointed particularly to the “deplorable behaviour” of men and the need for women-only online spaces.
Hutley took the court through several affidavits from users who said they experienced abuse and harassment from men online but have found a safe and peaceful platform for connection on Giggle.
“It’s not to the point to say that certain people couldn’t get onto it and were hurt by it. That is unfortunate, but, in effect, the need for such a space is manifested in uncontested evidence that it is satisfying real needs for people who are disadvantaged women because of, essentially at heart, men,” Hutley said.
“We say that is a classic special measure.”
Georgina Costello KC, appearing for Tickle, said Justice Bromwich did not err in finding the term “sex” was not confined to a biological concept at birth, nor in finding sex was changeable, and in taking into consideration how a person presents themselves socially.
On a “real review” of the evidence, Costello said Tickle is a woman and was a woman when she was excluded from the app.
“The evidence that was before the court below and is before you on your real review of the evidence includes her use of the female name Roxanne Tickle, her gender reassignment surgery, her hormone treatments, her self-perception … her outward expression of female.
“Moreover, the very fact she joined an app for females,” she said.
Tickle has filed a cross-appeal for damages higher than $10,000.
Costello’s submissions will continue on Tuesday.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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