By Jewel Topsfield and Nick Bonyhady
A transgender woman was awarded $10,000 after a judge found she had been indirectly discriminated against when she was barred from a female-only social media app in a case billed as a landmark test of trans rights law in Australia.
The Federal Court found that Roxanne Tickle had not been directly discriminated against but had been the victim of indirect discrimination and ordered the app – Giggle for Girls – to pay her $10,000 plus legal costs.
Roxanne Tickle outside court.Credit: Peter Rae
Justice Robert Bromwich noted that Giggle’s founder, Sall Grover, removed Tickle when she saw her photo and “considered her to be male”.
Giggle had argued that the discrimination was permitted because, in its view, Tickle was of the male sex, and that was unchangeable.
But Bromwich ruled: “These arguments failed because the view propounded by the respondents conflicted with a long history of cases decided by courts over 30 years.”
He said that “on its ordinary meaning, sex is changeable”.
Giggle was also ordered to pay Tickle’s legal costs, capped at $50,000.
Tickle was issued a birth certificate stating she was female a year after undergoing gender-affirming surgery in October 2019. She uploaded a selfie on Giggle for Girls, which is marketed as a platform exclusively for women to share experiences and speak freely in a “safe space”.
However, she was blocked in September 2021 on the basis that she was a male.
Grover has been quoted as saying Tickle was removed from the app “because they are male, no other reason. The removal was manual. I looked at the onboarding selfie and I saw a man”.
Tickle sued Giggle, arguing the app and its founder illegally discriminated on the grounds of gender identity.
In a social media post after the decision, Grover said that “unfortunately” they had got the judgment they anticipated. “The fight for women’s rights continues,” she posted on X.
The Giggle App was taken offline in August 2022. Grover says in her profile on X that it will be relaunched soon.
Paula Gerber, Professor of Human Rights Law at Monash University, said the finding was a huge victory for transgender women.
She said the case sent a clear message to all Australians that it is not lawful to make decisions about whether a person is a woman based on how feminine they appear.
“The judge made it very clear that it is a breach of the Sex Discrimination Act to treat transgender women differently from cisgender women. So that’s a great victory,” Gerber said.
“It has really put a spotlight on the discrimination and the exclusion that they face and has sent a message that people who do this are going to pay a price.”
Anna Kerr, principal solicitor from Feminist Legal Clinic, said she was disappointed but not surprised by the ruling.
“Unfortunately, legislation and case law conflating gender identity with biological sex have effectively undermined the ability for women to have any spaces or services free of males,” Kerr said.
“The hard-fought rights and gains of the women’s liberation movement are being rapidly dismantled by decisions such as this, leaving women and children vulnerable in many contexts, including in services supporting victims of sexual and domestic violence, women’s prisons, public toilets and change rooms and in women’s sport.”
Equality Australia chief executive Anna Brown said the judgment reflected that “the legal meaning of sex is clear and well-established”.
“Excluding Roxanne from this app was a hurtful act and an affront to her dignity, which the court has acknowledged today,” she said. “Women’s spaces should be open to every woman seeking friendship and connection.”
University of Melbourne Associate professor of philosophy Holly Lawford-Smith, a gender-critical feminist who is opposed to trans women having access to female-only services and spaces, said the finding seemed to undercut any exemptions based on biological sex.
“It seems to be that all permanent exemptions for women, in terms of affirmative action or protective safety measures for women, now have to be inclusive of men based on their gender identity,” she said.
“There’s just no more understanding of the history of women’s oppression on the basis of sex as the rationale for those exemptions. I find that pretty astonishing.”
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