As part of her bid to secure damages greater than $10,000, counsel for Roxanne Tickle accused the owner of a “woman’s only” online platform of allegedly having a “wilful blindness towards gender identity”, particularly when it concerned transgender women.
Source: Greta Fund.
Appearing for transgender woman Tickle, barrister Georgina Costello KC told the Federal Court there was evidence to amend Justice Robert Bromwich’s judgment to add a finding that Giggle for Girls and Sall Grover engaged in direct discrimination.
In the August 2024 decision, Giggle for Girls and Grover, its founder and CEO, were found to have indirectly discriminated against Tickle by shutting her out of the online social media platform in September 2021 and refusing her re-entry a month later.
Although originally accepted by an artificial intelligence program known as “Athena”, Tickle was excluded from the app after a picture she had taken of herself was inspected by “human eyes”.
Referring to Grover’s affidavit and responses to cross-examination at the primary hearing, Costello claimed the founder intended to exclude Tickle – whom she judged to be a man – in circumstances where there was a “wilful blindness to gender identity”.
In support of this, Costello took the appeal bench to an exchange between herself and Grover about emails, texts, and phone calls sent by Tickle after the September 2021 removal from the Giggle app.
Although the communication identified Tickle as a woman, Costello alleged Grover looked at Tickle’s onboarding photograph and did not readmit her because she had judged her as an adult man. This was despite female physical attributes, such as hair and clothing.
“[Grover] looked at the photo and treated her as a man because she sees all persons who were assigned the male gender at birth as men,” Costello said.
“We say the primary judge should have found Grover did know Tickle was a transgender woman when she discriminated against her.
“In any event, we say that on the authorities, disparate treatment is the hallmark of direct discrimination, and disparate treatment occurred here, and disparate treatment occurred in circumstances which involved a look at [Tickle’s] appearance.”
Turning to the damages Tickle was awarded, Costello said it should have been higher on account of the “seriously aggravating” factors experienced by Tickle, which have allegedly added up “blow by blow”.
This included Grover using male pronouns to refer to Tickle in more than 50 interviews, and using terms like “scared”.
To secure additional damages, Costello also relied on Grover’s laughter during the primary hearing after she had been shown a demeaning caricature of Tickle during cross-examination.
Costello said it could not be viewed as “bona fide”.
In response to the latter point, Noel Hutley SC said that a person can be made to giggle when shown something of “extreme bad taste”, but this particular conduct was a result of Costello’s behaviour.
“If a cross-examiner chooses to put something before a witness of those varieties and a witness laughs, you can’t then turn around and say that was aggravating conduct. You brought it on, it’s your decision, it’s the cross-examiner’s decision to do it,” Hutley said.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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