A transgender woman is suing the women-only social media platform Giggle for Girls and its creator after she was kicked off the app described as being ‘made for women by women’.
Roxanne Tickle is claiming discrimination on the grounds of gender identity, with a hearing in the federal court beginning today. It comes after her complaint to the Australian Human Rights Commission in 2021 could not be conciliated.
Despite the light-hearted name of Tickle v Giggle, this case has the potential to be an important test of the Sex Discrimination Act in Australia.
In 2013, there were changes to the Sex Discrimination Act and it became unlawful under federal law to discriminate against a person on the basis of sexual orientation, gender identity or intersex status. Tickle v Giggle is the first time that a case alleging gender identity discrimination is being heard by the federal court.
The four-day hearing opened this morning in Sydney, with protestors gathering outside. The case will not be live-streamed due to unacceptable online behaviour during an interlocutory hearing in April 2023.
What happened initially?
In February 2021, Tickle downloaded the Giggle for Girls social networking app, which was marketed as a platform exclusively for women to find friendship groups, roommates and engage in freelance work, amongst other things.
Users are required to submit a selfie, which is then assessed by artificial intelligence software to determine if they are a woman or man.
At first, Tickle’s photo was determined by the app to be a woman and she had full access. In September 2021, however, the account became restricted after the AI decision was manually overridden.
Tickle filed a complaint with the Australian Human Rights Commission in December 2021, saying she believed she was being discriminated against as a transgender woman.
Founder and CEO of the app, Sall Grover responded that Tickle had been removed because her appearance had been “considered male” in an uploaded selfie.
Seeking damages, Tickle filed a lawsuit in December 2022. Former Liberal party candidate Katherine Deves, representing Giggle, failed to have the case thrown out of court.
Opening hearing
The case opened in the federal court this morning, as Tickle’s barrister Georgina Costello told the court that Tickle “presents herself as a woman, she uses a woman’s name.. And feels in her mind, psychologically, that she is a woman”.
Justice Robert Bromwich heard that Tickle has lived as a woman since 2017, has a birth certificate stating that her gender is female and had reassignment surgery.
“The respondents have insisted on describing Ms Tickle as a man and using ‘he’,” Costello told the court. “Persons can change gender and that is what happened here.”
Giggle and Grover’s barrister, Bridie Nolan, said that the respondents, including app founder Grover, “flatly deny” that Tickle is a woman, and that “sex is discriminatory, it always has been and always will be… biological sex must prevail”.
The respondents have invoked parts of the sex discrimination law which contain a “carve out” for measures intended to achieve substantive equality between men and women.
Australia’s Sex Discrimination Commissioner will assist
Representative from the Australian Human Rights Commission, including the Sex Discrimination Commissioner are attending the hearing.
“Every individual, regardless of their gender identity, deserves dignity, respect, and equal treatment under the law,” said Sex Discrimination Commissioner Dr Anna Cody, in a statement.
“Sex and gender identity discrimination are interconnected, not mutually exclusive. My role as Australia’s Sex Discrimination Commissioner is to address all forms of discrimination and advance gender equality in line with the Sex Discrimination Act and the Convention on the Elimination of All Forms of Discrimination Against Women.”
The Sex Discrimination Commissioner will act as a ‘friend of the court’ in this case, meaning Cody will seek to assist the the Court by providing submissions about the meaning, scope and validity of relevant provisions of the Sex Discrimination Act 1984 (Cth). The Commissioner is not a party to the proceeding and has not made submissions about whether Tickle was in fact discriminated against.
Cody emphasises that “no one in Australia should face discrimination or exclusion based on their sex or gender identity” and that “gender equality means equal treatment of all genders, including trans people”.
“When we recognise trans rights, we recognise the worth and dignity of every person and reject the harmful stigmas and stereotypes that lead to discrimination. We stand with trans communities and will continue to advocate for their rights and the rights of women,” she said.
“We must acknowledge and address the real barriers to enjoying human rights that face all women – including trans women – in Australia.”
“Women continue to confront these systemic barriers, such as higher rates of domestic, family, and sexual violence, wage gaps, overrepresentation in unpaid care work and limited access to healthcare.”
“We must focus our efforts on dismantling these barriers and creating a society where all women, including trans women, can thrive.”