Tickle v Giggle: What is the difference between gender and gender identity?

To what extent does the Sex Discrimination Act (Act) protect a person from discrimination on the basis of their gender identity? It is a question that has taken centre stage in the Federal Court recently. In the matter of Tickle v Giggle for Girls Pty Ltd, a transgender woman commenced proceedings launched court action against a women’s only platform and its CEO, for allegedly being blocked from the app due to her gender identity.

Roxanne Tickle claims that she downloaded the app and passed the “selfie” stage, which meant that she could use it. The “selfie” is assessed by third-party artificial intelligence (AI) software that ascertains whether the pending user is a man or a woman. If the AI determines that the “selfie” is of a woman, the user is granted access to the app.

The case is significant because it is the first time since the Act was amended in 2013 that the changes are being tested in court.

Section 22 of the Act states that it is unlawful for a person to discriminate against another person on the ground of the other person’s “sex, sexual orientation, gender identity, intersex status …”. Gender identity is also referenced in Section 5B of the Act.

Despite the seemingly wide ambit, “sex” is not defined in the legislation.

According to Katie Green, the Managing Principal Solicitor at the Inner City Legal Centre, at the moment, there is a lack of legal protections for trans people in New South Wales and Western Australia in particular. In terms of the types of legal issues that trans people face, “We [saw] such an enormous rise in discrimination, vilification, family law issues, medical law issues, legal issues at work inherently unique to trans people, their identities, their bodies and their documents,” she says.

What is notable in this case is that following her transition from male to female, Tickle updated her birth certificate. The Registry of Births, Deaths and Marriages in Queensland issued a new certificate, designating her as female.

“The New South Wales Act kind of imposes two tiers of transgender people,” says Green. “There are transgender people, and then there are recognised transgender people.”

According to Green, most states have progressively updated their laws to recognise the identity of trans people. “They can change their name, but if they want to change their gender marker in New South Wales, you only have the option of being a male or a female, you don’t have the option of being non-binary or other,” she says. Green explains that for a person to change their gender after surgery, they have to be examined by two doctors who need to sign a statutory declaration, before it will be recognised by the state’s Registry of Births, Deaths and Marriages. “This connects back to discrimination because trans people are not able to obtain basic legal documentation that confirms who they are,” she says.

“[Tickle] does appear to have been discriminated against on the basis of sex and gender identity pursuant to the Sex Discrimination Act because she has undertaken many legal and medical procedures to affirm her gender as female. … She has affirmed her gender on her identity documents, which identify her as being a woman,” says Green.

“[I]n the Federal jurisdiction, the case of Norrie (NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11) found in 2014 that people actually have a right to not specify as male or female. But in the New South Wales jurisdiction, we still require that specification.”

The respondents, Giggle for Girls, claim that the app constitutes a “special measure” designed to achieve substantive equality between men and women and the app’s exclusion of males is reasonable in the circumstances. That is, the exclusion of males from the app fell within the exceptions under sections 7N, 7D and 32 of the Act.

Given what is at stake, there is a lot of public interest in the outcome of the case. The Federal Court has the difficult task of interpreting the law and ruling on the question of what is a “woman”?