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”To Have People to Walk That Journey with You”: Reflections on Strategic Litigation, Gender Justice, and Allyship During Transgender Awareness Month, 2024

Type

Commentary

Author(s)

Muhammed Jarri Syed
Published Date

In the face of a rising global anti-gender movement, trans individuals are mounting powerful resistance in courtrooms around the world. One groundbreaking case emerged from Australia in August 2024 after Roxanne “Roxy” Tickle challenged her exclusion from the "female-only" social media platform, Giggle for Girls, on the grounds of her gender identity as a trans woman.

The platform’s owner, Sall Grover, admitted that Tickle was blocked due to her physical appearance. The Federal Court of Australia ruled in Tickle’s favor, affirming that Giggle and Grover had engaged in indirect discrimination by enforcing a discriminatory appearance-based standard that excluded trans women. 

Outright’s Queer Legal Futures Fellow, Jarri Haider, spoke to Roxy Tickle about the case, and why it was so important for her to have her day in court. Joining the conversation was Rikki Nathanson, Senior Advisor for Outright’s Global Trans Program, sharing her own experiences around advocating for trans people’s human rights through strategic litigation. 

JARRI HAIDER: First of all, congratulations on your victory in the Federal Court of Australia. I know that it was a long road, and the struggle for trans equality is far from over. But did you feel a sense of relief after reading the judgment? What parts of the judgment resonated most strongly with you?

ROXY TICKLE: I felt more a sense of vindication rather than a sense of relief. It had been such a stressful time for the three years leading up to it, that all I could do was just start to lose some stress from my body. What was the paragraph that meant [the most] to me? That His Honour put into the judgment that I'm entitled to use the female pronouns: she and her. Another paragraph that really rang true to me was that just because a transphobe has a special interest in hating us, it doesn't mean that they're qualified to submit expert opinions in court cases about this. 

JARRI HAIDER: I did read the paragraphs you were referring to and they're really, really powerful.I think the phrase used was “the acceptance that Ms. Tickle is correctly described as a woman, reinforcing her gender identity status for the purposes of this proceeding… is legally unimpeachable.”

ROXY TICKLE: Yes, that was pretty powerful. 

JARRI HAIDER: Rikki and Roxy, at a time when we're witnessing the global rise of the anti-gender movement, what concerns you the most about recent developments in Australia and in the United States?

RIKKI NATHANSON: Living in the United States, quick snowballing of the anti-trans sentiment predominantly from the red [Republican-led] states is concerning. According to the Trans Legislation Tracker, 658 bills have been put forth in the last two years. 45 have passed, 125 are still being monitored and the remainder, 488, have failed. It just in two years shows you how the momentum has gained, right? A lot of it feeds into the anti-gender movement. So with that as a backdrop, we need to recognize the impact it has on human lives, that it affects the lives of trans people.

Firstly, it's eroding the legal protections against discrimination against trans people in areas such as employment, housing, and healthcare. We are now more vulnerable to find jobs, housing, and to access medical care. Secondly, there’s the mental health aspect. One young trans person told me that from the time she wakes up in the morning to the time she comes home at night, she has at least 100 cases of discrimination.

Thirdly, there’s the violence aspect. Because of the media circus that we face as trans people, where we are constantly vilified. The “Murder Monitoring” Report that comes out every November found that every year for the last at least eight years, more than 300 trans people globally have been murdered for merely existing. 

ROXY TICKLE: I agree wholeheartedly with everything that Rikki just said. In the Australian context, we're very lucky that... while the legislative environment sometimes appears a little shaky, on the whole, it's only fringe conservative politicians that are trying to introduce laws into Parliament to change our protections and rights. And so far they've been rebuffed. In terms of physical safety, it is a bit better than other countries, but there are acts of violence in Australia and it should be reduced to zero. Nobody should be attacked for who they are. 

JARRI HAIDER: Paula Gerber, an academic, has observed in relation to Roxy’s case, that its “ramifications extend far beyond the key players in the case” and that it was “a landmark decision in favour of trans people worldwide.” What do you think these positive ramifications might be?

ROXY TICKLE: Trans people rarely get platforms, they rarely get voices, and that's been part of the strategy of keeping us quiet. If you don't have a platform, you can't speak. As a result of this case, people can get to know that trans people are not dangerous. So the case, for me, gives the opportunity for trans people to speak up and say: yes we are here, and no we're not dangerous, and we just want to live our lives like everybody else. So I hope that voice reverberates around the world. How much it catches on remains to be seen.

JARRI HAIDER: In the judgment, Justice Bromwich roundly rejected Sall Grover's arguments around denying your womanhood as a trans person. And part of this was because you had successfully obtained an updated birth certificate in Queensland, recording your sex as female. Can you tell us about the process of applying for this updated birth certificate?

ROXY TICKLE: Yeah, so at the moment, the current law in Queensland is the self-determination model. I believe it's a much easier, statutory declaration-based process. But for me, back when I did it, I was required to undergo gender affirmation surgery. I had to see a psychiatrist and be diagnosed with gender dysphoria.

They had to say that I had a mental illness in order to do that. I also needed a letter from the psychologist. After the surgery, I needed to have two physicians witness my new genitalia and sign statutory declarations in front of JPs [justices of the peace] that they had witnessed my genitalia. And then I submitted that paperwork with my credit card. And after a really long time to get to that point, they issued my birth certificate in about eight days. 

The whole process was traumatizing, terrifying, and exhausting. And I wouldn't be here if I didn't do it. But it was something that you wouldn't wish on your worst enemy. That process. I am so glad Queensland decided to change the law. 

JARRI HAIDER: Rikki, one of your campaigns is about legal gender recognition. It tackles exactly the sort of issues that Roxy's just described. Could you talk to us about why legal gender recognition is important, especially based on the self-determination model?

RIKKI NATHANSON: Absolutely. Legal gender recognition provides us with autonomy and respect. It reduces stigma. It provides an enabling environment by creating laws that are supported by policies that allow us to live our lives. Because it reduces the barriers that we face as trans people, it's essential for our mental health, right? If a person's able to work and have a job and have housing, then they really are self-empowered. Their rights are unfettered, and they are able to enjoy a basic, decent human life free from discrimination.   

JARRI HAIDER: Roxy, one of the statements that you made was that the case stole three years of your life. And I understand that you were referring to the massive media pile-on and the transphobic harassment you received as the case went on, and probably still. Could you tell us about how you dealt with the backlash? Did you have community support during this difficult time? 

ROXY TICKLE: The harassment was part of the reason why I said that, but the greater part of that was I literally lost three years of my life. I was not any sort of activist or advocate going into this. I stumbled into this. I was totally unprepared for it, and I was aware that if I put a foot wrong, I could be financially destroyed. So, I was under utter stress the entire three years. There was no moment when I wasn't thinking about what was going on. I really hope that the time and effort I put in will make it easier for the next case. 

How did I deal with the harassment? I bunkered down. I locked down all of my social media accounts. I retreated to a core group of friends. I didn't even want to deal with teaching people about what it means to be trans – a minor trauma in its own right. I retreated and attempted to disassociate as much as I could, which you can kind of do for a short amount of time, but doing it for years and years is really debilitating.

JARRI HAIDER: I hear you on that. And then, Rikki, similar to Roxy, you also had a landmark legal victory in Zimbabwe. You were seeking justice for an incident involving police brutality where you were specifically targeted as a transgender person. You won that case, but you paid a very heavy price. Can you speak to us about what that was like and how you got through that time?

RIKKI NATHANSON: Yes, I was fortunate in that I had a support system. When my case [challenging arbitrary arrest and discriminatory police treatment] came to light, I was contacted by the Southern African Litigation Centre. They got involved, they wrote the briefs, they paid for the case. So I had that support, but I also had the will to do it, right? The price that I had to pay was that I had to leave the country because it was no longer safe for me to continue living there. I was physically attacked in my home once. That was the second time they broke into my family and I was physically attacked. And then, thankfully, I came to New York for an Outright event. And when I was here, they went back looking for me, so I didn't ever go back home. Because, I mean, once bitten, twice shy. Third time, you get killed. I left everything behind. 

JARRI HAIDER: That sounds unimaginably difficult. It seems that no matter the jurisdiction, trans people often have to face unimaginable backlash and pressure for seeking to uphold their rights. It does not matter if you are in Australia or Zimbabwe. What do you attribute this to?

ROXY TICKLE: One is society at the highest level tends to do what it's done before. And so once a behaviour is baked in, it continues.

Two, I think that on an individual level, I think people, when they learn that someone is either trans or has a sexuality other than being straight, I think that once people see that, they start to wonder about themselves and they too may see themselves in that person, and how they deal with that cognitive dissonance may or may not lead to bigotry towards others… But I think they're scared of themselves.

RIKKI NATHANSON: So pretty much what you're saying, Roxy, there is also a lack of understanding where people are not familiar with transgender issues. So that leads to misconceptions. And then also speaking to a lot of the situations in the global South, where at the advent of Christianity the diverse gender traditions that predated colonization were obliterated. So they marginalized the original traditional norms, if you think about the hijras in South Asia, for example. In Africa too, there were very diverse genders and sexualities, before colonization. And then there's also the political climate, right? Politicians scapegoat LGBTIQ and trans people, especially when it comes time to elections. The media is also very strong, the negative press both Roxy and I faced reinforced the vitriol and backlash we are all facing. 

JARRI HAIDER: The both of you have very important insights. And just to wrap things up: Do you have any advice for trans activists who seek to claim their constitutional rights or address discrimination through the courts? What potential challenges might they face, and how should they deal with them?

RIKKI NATHANSON: So, I think, basically, we... anybody who's fighting the system as an individual, you need to find community support, right? You need to find some form of alliance, whether it's by joining an organization, or seeking out legal advice. And then also think of strategic activism where you need to focus on specific, achievable goals in advocacy that can create momentum, right? Get the good stories out there to support your case.

ROXY TICKLE: It's really important to have allies.

To have people to walk that journey with you. I could not do what I have done without Grata Fund [a non-profit strategic litigation organization incubator and funder in Australia] and my passionate and dedicated legal team. When I launched the discrimination case, I hadn't thought that you need people who know how the media works. It's a very different way of communicating.

In my case, the appeal was lodged yesterday, so we'll see how that pans out. But there's no one case or one action that changes everything. It's a brick in the wall.

This is a journey, and if everybody who's able to do something does, then it will be... Things will get better.

The author of this piece, Jarri Haider, Fellow with Outright International’s Queer Legal Futures Program has also written a commentary on Tickle v. Giggle and its impact. Read the full article.

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