A court has been asked to define what a woman is as a landmark gender identity discrimination case comes to a close in front of a packed gallery of trans and women’s rights campaigners in Sydney.
Roxanne Tickle, a transgender woman from regional New South Wales, is suing the women-only social media platform Giggle for Girls and its CEO, Sall Grover, for alleged unlawful discrimination after being blocked from using the networking app.
On Thursday, the federal court heard “this case is the ‘What is a woman?’ case” as closing arguments were made in the trial – the first time a case of alleged gender identity discrimination has been heard by the federal court.
Justice Robert Bromwich also heard that the Sex Discrimination Act was intended to protect individuals such as Tickle, who has received an “enormous” amount of online hate.
In a lawsuit filed in December 2022, Tickle claimed she was allowed to join Giggle for Girls in February 2021 but her membership was revoked in September that year. She then unsuccessfully attempted to regain access to the app.
Tickle is seeking damages and aggravated damages amounting to $200,000. Her team claims discrimination took place when Grover and Giggle – represented by the former Liberal candidate Katherine Deves – did not respond to her request for access and reinstatement to the app. She was also discriminated against when she was removed from the app, the court heard.
Tickle found Grover’s subsequent public statements about her “distressing, demoralising, embarrassing, draining and hurtful” and “led to the scale of online hate towards [her] being enormous”.
Grover has more than 90,000 followers on X, formerly Twitter, and has given up to 50 media interviews in which she has persistently misgendered Tickle, the court heard. Her legal costs are in part funded by the sale of merchandise that is “demeaning” to Tickle.
The result was constant anxiety and occasional suicidal thoughts, Tickle’s counsel, Georgina Costello KC, said.
She told the court “the purpose of the act is to eliminate that kind of thing … and yet what it has resulted in is a global campaign by the respondents against Ms Tickle”.
She claimed it was clear from Grover’s evidence that the respondent “has a modus operandi of treating transgender women as men”.
Grover had previously told the court that she would not address Tickle as “Ms” and that, even if a transgender woman presented as female, had gender affirmation surgery, lived as a female and held female identity documents, Grover would still see her as a “biological male”.
However, the facts of Tickle’s surgery and her female birth certificate mean “it is clear that Ms Tickle is a woman”, Costello said.
At the heart of the case are definitions of gender and sex and the boundaries of the Sex Discrimination Act. The outcome is likely to have wide-reaching implications for male and female spaces and activities.
The respondents argue that sex is biological, while gender is a “bold, enterprising, fluid” concept that “has no boundary”, said Giggle and Grover’s counsel, Bridie Nolan.
“It’s all about how a person perceives one person’s expression,” she told the court. “Gender identity probably was catered for by the app, but it was the different identities of females.”
The court had earlier heard that Tickle has lived as a woman since 2017, has had gender affirmation surgery and has a female birth certificate. She shops for women’s clothing, uses women’s facilities and plays on a women’s hockey team.
Tickle made a complaint about Giggle to the Australian Human Rights Commission in 2021 and the resulting case tests 2013 amendments to the Sex Discrimination Act that make it unlawful to discriminate against a person on the basis of sexual orientation, gender identity or intersex status.
Giggle’s legal team claims Tickle was discriminated against on the grounds of sex rather than gender identity, and that, under the act, the app counts as a “special measure” that helps “achieve substantive equality” between men and women.
Tickle’s counsel maintains that sex and gender are social, psychological and non-binary and that “biological sex is relevant but not determinate. Biology is not a complete answer to the question ‘What is sex?’”
As the bar unpicked the differences between direct and indirect discrimination, Bromwich admitted “this was never going to be an easy case for anybody”.
To aid in navigating that complexity, the Australian Human Rights Commission acted as a friend of the court. The barrister Zelie Heger told the court on Wednesday that sex was no longer defined in the Sex Discrimination Act, but that “importantly, the act recognises that a person’s sex is not limited to [being a man or a woman]”.
An “11th hour” submission by the UN special rapporteur on violence against women and girls was deemed “completely unacceptable” by Bromwich.
Tickle was receiving support from the Grata Fund, while a crowdfunding campaign set up to cover Giggle for Girls’ legal costs had, as of Thursday morning, raised $519,000.
A judgment was expected within three to six months.
• In Australia, support is available at Lifeline on 13 11 14 and Beyond Blue on 1300 22 4636. Other international helplines can be found at befrienders.org
