Snapshot
- The Full Court’s decision in Giggle for Girls Pty Ltd v Tickle provides important insight into how the prohibition on discrimination on the basis of gender identity in the Sex Discrimination Act 1984 is to be interpreted and applied.
- The judgment clarifies the operation of the Act where sex-based services intersect with protections for gender identity.
- The Court’s analysis of direct discrimination and special measures is relevant to organisations seeking to rely on women-only spaces, programs or services.
This litigation saga began when Roxanne Tickle, a transgender woman, commenced proceedings in the Federal Court against Giggle for Girls Pty Ltd (‘Giggle’) and its CEO, Sally Grover, after Tickle was removed from the Giggle for Girls App (‘App’) which was promoted as being a space for women only. In order to use the App, users had to upload a selfie which was then verified by AI gender-detection software. Roxanne Tickle did this, her photo was approved and she started using the App. However, seven months later, Grover removed Tickle from the platform after reviewing the selfie and deciding Tickle was not a woman.
Tickle alleged discrimination on the basis of her gender identity under section 5B of the Sex Discrimination Act 1984 (Cth) (‘SDA’). At first instance, the judge held Tickle had been indirectly discriminated against on the basis she did not look sufficiently female. That is, she was not judged by Grover to be a cisgender woman. His Honour awarded her $10,000 in damages and costs. Giggle and Grover appealed the decision and Tickle cross-appealed. The Full Federal Court dismissed the appeal and allowed the cross appeal, finding there had been direct discrimination, rather than indirect, and increasing the damages to $20,000, including $8,000 in aggravated damages.
