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Why Tickle v. Giggle Is No Laughing Matter: Australia Steps Toward Substantive Trans Inclusion
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At a moment marked by an upsurge of anti-gender movements within legislatures and courtrooms globally, it is imperative to acknowledge and celebrate victories for lesbian, gay, bisexual, transgender, intersex, and queer (LGBTIQ) communities as they arise. In August 2024, the Federal Court of Australia–a superior court with jurisdiction over unresolved anti-discrimination complaints arising from the Australian Human Rights Commission–delivered a landmark affirmation of transgender rights. This ruling emerged from a case in which Roxanne (“Roxy”) Tickle, a transgender woman, sued the "women-only" social media application Giggle for Girls Pty Ltd and its founder, Sally (“Sall”) Grover, for discrimination after being blocked from the app due to her appearance. The court ruled in Tickle’s favor, marking the first judicial decision to confirm that the country’s federal sex discrimination law, the Sex Discrimination Act 1984 (Cth) (“SDA”), protects transgender people from gender identity discrimination.
The real victory, as we will explain here, was not merely a win in the courtroom for Tickle, but also the court’s repudiation of gender-restrictive rhetoric: indeed, the respondent, Grover rejected wholesale the existence and validity of transgender women, opposed the 2013 amendments to the SDA which explicitly included gender identity as a protected category, and even challenged their constitutionality. Given the rise of trans-exclusionary feminism in legal discourse, the outcome of this case demonstrates that decades of progressive jurisprudence on transgender rights can serve as a strong defense against such exclusionary views gaining mainstream acceptance. Now that Grover has appealed the court’s decision to the Full Federal Court, it is important to consider the key points from the ruling and what could be at risk if it is overturned.
Factual Background
The Giggle for Girls app was developed by Grover in 2019 in order to “create a little corner of the Internet where women… could have a refuge away from men” for networking, support, and friendship (paragraph 95 of the decision). Her precise intentions for the women-only "refuge" and whom it aimed to exclude became clearer through her testimony about the onboarding process. Grover had enlisted the support of a "gender detection" feature from the artificial intelligence (AI) system Kairos to screen users. According to Grover’s affidavit, the AI facial recognition process was “the digital equivalent of what human beings do every day in perceiving sex, in particular male sex.” As she further clarified, she “did not consider the use of the word ‘gender’ in the context of its ‘gender detection feature’ to mean anything other than the detection of biological sex.” Implied in this sex/gender equivalence, and later explicitly admitted in cross-examination, was Grover’s belief that the term “women” only included cisgender women.
In February 2021, when Tickle, a transgender woman, uploaded a selfie and the AI system allowed her access to the app, Grover’s vision of an exclusive women-only space and Tickle’s gender identity were set on a collision course. About eight months after joining Giggle, Tickle found that she could no longer post content or comment on posts by other users. Soon after, when she tried to buy premium features on the app, she received a “User Blocked” message. Unbeknownst to her, Grover had been manually reviewing admitted users’ onboarding selfies. The court later found that Grover had personally blocked Tickle’s access to the app based on a “quick and reflexive” judgment that she appeared to be male. After her access was blocked, Tickle tried to contact Grover several times by email and phone, but aside from one missed call from Grover, they had no communication. Tickle’s access to the app was never restored.
Legal Issues and Findings
In December 2021, Tickle made a complaint to the Australian Human Rights Commission (AHRC) claiming that she had faced discrimination on the basis of her gender identity. Once the AHRC terminated the complaint on the basis that it could not be resolved through conciliation, Tickle had the legal grounds to escalate the dispute to the Federal Court of Australia. Aside from the factual findings discussed above, the following legal issues, all of them implicating the Sex Discrimination Act (SDA), were raised before the court:
- Whether Giggle for Girls and Grover had directly discriminated against Tickle on the basis of her gender identity (contrary to section 5B(1) of the SDA) by denying access to goods and services (contrary to section 22 of the SDA)?
- Whether Giggle for Girls and Grover had indirectly discriminated against Tickle on the basis of her gender identity (contrary to section 5B(2) of the SDA) by denying access to goods and services (contrary to section 22 of the SDA)?
- Whether section 22 of the SDA, which prohibits discrimination against a person on the basis of their gender identity in the provision of goods and services, is unconstitutional?
Despite the obviousness of Grover’s transphobic stance, the court had a very specific decision to make in relation to the nature of the discrimination alleged. As discussed above, the court found that Grover likely made a "quick and reflexive" decision to remove Tickle, driven by a policy to exclude users on the basis of their appearance, rather than actual knowledge of Tickle's transgender identity. As a result, Tickle failed to prove direct discrimination. However, relying on the same evidence, the court found that Grover's policy of requiring users to "appear to be a cisgendered female" amounted to indirect discrimination, because it imposed a condition disadvantaging transgender women who could not meet this arbitrary standard (paragraph 134 of the decision).
In the constitutional challenge, the court had to determine whether the applicable gender identity discrimination provision in the SDA was a valid exercise of legislative power. The court ruled that the SDA, both in its original form and with the 2013 amendments, fell under the Federal Parliament’s "external affairs" power, allowing it to enact laws to meet international treaty obligations. Specifically, the court found that Article 26 of the International Covenant on Civil and Political Rights (1966), which prohibits discrimination based on "race, colour, sex, language… or other status," includes gender identity as a protected category under "other status." The court also determined that the Federal Parliament had the power to pass laws requiring corporations and their officers to refrain from discriminating based on gender identity in the provision of goods and services. Because Giggle was incorporated in Australia and Grover was its executive officer, she was legally obligated not to discriminate against anyone on the basis of gender identity.
Since the court found that Giggle and Grover had indirectly discriminated against Tickle, they were ordered to pay $10,000 in damages and Tickle’s legal fees.
The Question of Sex
At the heart of Grover’s arguments in the case was the belief that “biology at birth permanently dictates the language that must be used to describe a person” (paragraph 45 of the decision). This understanding was reflected in her defense: that she had not discriminated against a “woman” because, in her view, Tickle was an “adult human male.” Apropos of this, the court noted that “a key dispute is not one of what has taken place, except on the periphery, but rather one of characterisation, with the respondents essentially taking issue with the very concept of gender identity.” The court noted with concern that Grover appeared to “contend that a claim of gender identity discrimination can be answered by asserting that sex discrimination occurred, and that the kind of sex discrimination they engaged in is a special measures exception under s 7D” of the SDA, which covers instances of lawful sex discrimination that aim to achieve substantive equality between two protected groups.
Grover’s ability to present these arguments in court stemmed from the lack of a defined meaning for “sex” in the SDA. However, as the court clarified, this did not imply that the term lacked an established meaning in Australian common law. The court rejected Grover’s essentialist interpretation of "sex," emphasizing that the term had acquired a “broader ordinary meaning”, shaped by its use in legal gender recognition statutes in Australia’s states and territories (paragraph 55 of the decision). Referencing past cases, the court affirmed that the legal recognition of nonbinary sex in Australia acknowledges the possibility of a person’s sex being changeable. Additionally, the court highlighted the 2013 amendments to the SDA, which not only included "gender identity" as a prohibited ground of discrimination, but also reflected deliberate changes in terminology, including the linguistic shift from "the opposite sex" to "a different sex" and the repeal of the definitions of "man" and "woman."
The court’s handling of Grover’s sex/gender equivalence is instructive because of how strongly it reflects radical iterations of gender justice. Historically, cultural feminists upheld the idea of biologically determined gender, viewing sex differences as inherent and immutable. However, scholars in sex variance and queer theory challenged this, demonstrating how early gendered socialization shapes behavior. Anne Fausto-Sterling, for example, argued that social factors influence the developing body. Judith Butler revolutionized this line of thinking by arguing that gender is not determined by biological sex, but that gender—as a social construct—shapes how sex is understood. According to Butler, sex is not a biological fact, but a cultural norm that is shaped and reinforced over time. They emphasize that our very understanding of sex is shaped by language and norms, meaning that we cannot think of sex outside the social constructs that define it. The court’s ruling echoes Butler’s insights, in legal terms, by scrutinizing Grover’s transphobic rhetoric and decisively rejecting her worldview. The court’s conclusion—that sex is fluid and encompasses a "broader ordinary meaning" than Grover’s narrow perspective allows—marks a meaningful affirmation of Butler's ideas, and establishes their postmodern understanding of “sex” as the law in Australia.
Legal Gender Recognition: To See the Way Forward, Look Back
Tickle’s case underscores the vital intersection between anti-discrimination laws and legal gender recognition for transgender people. It was significant that many years prior to this case, Tickle had undergone what was at the time a challenging and highly medicalized legal gender recognition process to update her state-issued birth certificate to “female” in her home state of Queensland. It was on this basis that the court concluded that Tickle’s self-identification as a woman was “legally unimpeachable.” Today, all states and territories in Australia permit transgender and gender-diverse individuals to have their gender legally recognized based on self-declaration. New South Wales, the last state to mandate sexual reassignment surgery for legal gender recognition, repealed this requirement in October 2024, shortly after the court's ruling. However, progress has not always been so assured. It is essential to recognize that landmark precedents like this do not emerge out of thin air; they are the product of a cumulative process of judicial interpretation and social progress. Equally, it often takes one brave litigant to permanently alter legal reality.
Tickle’s case bears the imprint of the 2001 landmark decision in Re Kevin, where the Full Court of the Family Court of Australia upheld the marriage of a transgender man and a cisgender woman at a time when same-sex marriage was not yet legal in Australia. This marriage occurred in defiance of the Attorney-General's advice, which stated that Kevin had no right to marry and warned him of criminal prosecution for doing so. Kevin's refusal to back down provided the Family Court with the opportunity to overturn long-standing precedent, rejecting the notion that "biological sexual constitution" was the sole legal criterion for determining one's gender in marriage. Re Kevin thus became a crucial milestone in the journey toward trans equality in Australia and beyond, its findings echoed in subsequent cases around the world. In 2024, this precedent would be cited to affirm Roxanne Tickle’s womanhood against an adversary who steadfastly refused to acknowledge her as such.
Finally, it is critical to note that this progress trajectory should not be taken for granted. As Professor Paula Gerber, a prominent human rights scholar at Monash University, has observed, there is mounting apprehension that a “US-style anti-trans campaign” is gaining momentum in Australia – a phenomenon aptly illustrated by Grover’s arguments in the case. Indeed, the very fact that Grover attempted to overturn legal precedent going back thirty years signals a wider phenomenon in which transphobia is leveraged to gain celebrity status. Since the case began, Grover has gained significant social media traction, while publicly embracing her status as a “TERF” (trans-exclusionary radical feminist). It needs to be recognized that this issue extends beyond Grover herself: indeed, a chorus of right-wing voices around the world are profitably peddling transphobia, building massive audiences on that carefully constructed rhetoric of hate and exclusion. While it is yet to be determined whether the Federal Court’s decision in Tickle v. Giggle will be upheld or overturned, it represents an important, albeit tentative, step forward in an increasingly hostile world for gender-diverse people.
The author of this piece, Jarri Haider, Fellow with Outright International’s Queer Legal Futures Program has interviewed the applicant in this case, Roxy Tickle on her firsthand experience of taking on a landmark legal challenge, along with the Director of Outright International’s Global Trans Program, Rikki Nathanson. Read the full interview.
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