Tickle V Giggle: Implications For NZ

Australian decision shows changes to Human Rights Act would harm women

A landmark case has been decided by an Australian Federal Court Judge who ruled that the exclusion of a transgender woman from the female-only app constituted unlawful discrimination due to ‘gender identity’.[1]

The case illustrates why legislating for both sex self-ID and the inclusion of ‘gender identity’ in sex discrimination legislation erodes boundaries that allow women to meet in women-only spaces, the Women’s Rights Party says.

Reading out a summary of his decision yesterday [Friday, 23 August], Justice Bromwich said the defendants (Sall Grover and her company Giggle for Girls) considered ‘sex’ to mean the sex of a person at birth, which the defendants said was unchangeable.

The Judge said these arguments failed because a long history of cases decided by courts going back over 30 years had established that, in its ordinary meaning, “sex is changeable”.

Women’s Rights Party Co-leader Jill Ovens says biologists would disagree. Renowned evolutionary biologist Richard Dawkins has described sex as being “pretty damned binary”.[2]

Colin Wright, an evolutionary biologist, and academic advisor for the Society for Evidence-based Gender Medicine, was a witness in the case.

In his Substack “Reality’s Last Stand”, Wright said today [Saturday, 24 August]: “Without an anchor in biological reality, laws based on ‘sex’ become meaningless and justice cannot be served.”[3]

“At its core, TvG will determine whether a person’s subjective ‘gender identity’—a vague concept lacking scientific grounding—will take precedence over an individual's objective biological sex under Australian sex discrimination law,” Wright said.

Grover recently presented to the New Zealand Law Commission as part of the Women’s Rights Party consultation on the inclusion of people who are ‘transgender or non-binary’ into the Human Rights Act 1993.

She described how Roxanne Tickle had downloaded the Giggle for Girls social networking platform she had created, which was designed to be a safe space for women and girls. Users provided a ‘selfie’ to be assessed by artificial intelligence software to verify they were a woman.

Grover said Tickle's photo had initially been accepted, but later that year Tickle’s account was restricted after a manual override “because he was obviously a man”. Tickle claimed discrimination in the Australian Human Rights Commission on the basis of ‘gender identity’.

The Judge found a claim of direct discrimination had failed because it could not be established that his removal from the App was because Tickle was transgender.

However, the Judge found in favour of Tickle on the basis of indirect discrimination. This was based on a condition being imposed for the use of the Giggle app that Tickle was required to have the appearance of a “cisgender’ woman, a by-product of excluding men and failing to distinguish between cisgender and transgender women”.

The Australian SDA defines ‘gender identity’ in relation to “gender-related appearance and mannerisms”, which Ovens says are both highly subjective concepts.[4]

The Judge said that even if the Giggle App could have been considered a special measure to achieve equality between men and women, as Grover’s lawyers argued, that would not have allowed Grover to discriminate on the basis of ‘gender identity’, which is distinct from discrimination against women on the basis of ‘sex’ under the SDA.

The court previously heard that Tickle had lived as a woman since 2017, had a birth certificate reissued in 2018 to reflect a name change and stating Tickle’s gender as female, and that he had undergone ‘gender-affirming’ (feminisation) surgery in 2019.

Ovens says Tickle v Giggle illustrates why legislating for sex self-ID and ‘gender identity’ in sex discrimination legislation erodes boundaries that allow women to meet in women-only spaces, whether in-person or on-line.

“We stand with Sall on this fight as it heads towards the High Court in Australia,” Ovens says. “We also encourage NZ women and men to take a stand against adding ‘gender identity and expression’ into our human rights legislation, or we will find ourselves in the same boat. On-line submissions to the Law Commission’s Review close 5 September.”

Reem Alsalem, UN special rapporteur on Violence Against Women, responded last night to the decision, which she labelled ‘dystopian’ and “distorting key concepts of sex and discrimination, while dodging Australia’s human rights obligations vis a vis women. If unchallenged, this decision would set a dangerous precedent,” she said.[5]

[1] https://www.fedcourt.gov.au/__data/assets/pdf_file/0013/120622/Summary-Tickle-v-Giggle-for-Girls-Pty-Ltd-No-2-2024-FCA-960.pdf

[2] https://richarddawkins.com/articles/article/race-is-a-spectrum-sex-is-pretty-damn-binary

[3] Reality's Last Stand <colinwright+articles@substack.com>

[4] https://www.legislation.gov.au/C2004A02868/2021-09-11/text

[5] Reem Alsalem, UNSR Violence Against Women and Girls. @UNSRVAW

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