Booting a transgender woman from an exclusive app for being insufficiently female constitutes unlawful discrimination, a judge has found in a landmark gender-identity case.
The Giggle for Girls app and its founder Sall Grover were on Friday ordered to pay $10,000 in compensation and legal costs to a user kicked off the women-only platform.
Weighing into the issue of discrimination based on gender identity for the first time, the Federal Court found Roxanne Tickle did not face direct unlawful treatment on that basis.
But her exclusion from the app for not looking “sufficiently female” amounted to indirect identity discrimination.
Legislation from Queensland that was mirrored nationwide reinforced legal precedent that “in its contemporary ordinary meaning, sex is changeable”, Justice Robert Bromwich said.
“The acceptance that Ms Tickle is correctly described as a woman, reinforcing her gender-identity status for the purposes of this proceeding, and therefore for the purposes of bringing her present claim of gender identity discrimination, is legally unimpeachable.”
But the judge declined to order an apology, remarking any such statement would be through “clenched teeth and utterly devoid of sincerity” due to Ms Grover’s sincerely held beliefs on sex and gender.
Ms Tickle said she hoped the decision was healing for trans and gender diverse people.
“I brought my case to show trans people that you can be brave, and you can stand up for yourself,” she said in a statement.
Ms Tickle was blocked from the Giggle app in September 2021 on the basis of her gender, despite a birth certificate listing her as female, the court was told during a series of often-heated hearings in April.
Ms Grover created the Giggle app as a “safe space” for women to interact with each other, free from male patterns of online violence, the court heard.
The app was taken down while the case went through the courts.
Despite expressing a clear intention to the court she would not reinstate Giggle unless allowed to exclude transgender women, Ms Grover told reporters she now planned to restore it.
She avoided answering a question about whether Ms Tickle deserved an apology.
“Unfortunately it is the judgment we anticipated and the fight for women’s rights in Australia continues,” Ms Grover said.
The compensation amount is a sliver of the $200,000 Ms Tickle had sought, half of which was based on a dismissed claim for aggravated damages.
That claim was based on an online campaign allegedly waged against her by Ms Grover largely on the social media platform X, formerly known as Twitter.
Giggle’s barrister argued Ms Tickle was a man so it was lawful to exclude her from the app under provisions in the Sex Discrimination Act, adding that the proceedings were the “what is a woman” case.
The court was told Ms Grover had persistently misgendered Ms Tickle in media interviews and across hundreds of posts about the case made to her 93,000 online followers.
Ms Tickle had undergone gender-affirming surgery and hormone treatments, identified as a woman to family, friends and employers and used women’s change rooms and shops.
Sex Discrimination Commissioner Anna Cody said the judgment sent the message that Australia wanted “an inclusive society in which all can participate”, including trans people.
She dismissed a reporter’s suggestion the decision redefined what a woman was and would allow men into women-only spaces.
“The judge found there are 30 years of legal precedent … that ‘women’ includes trans women,” Dr Cody said.
“This isn’t a new or landmark decision in that way – it is recognising … that is a part of our law.”
Monash University law professor Paula Gerber said the case showed it was not lawful to decide whether a person was a woman based on how feminine they appeared.
“This decision is a great win for transgender women in Australia,” she said.
Friday’s decision can be appealed.
Lifeline 13 11 14
Fullstop Australia 1800 385 578
1800 RESPECT (1800 737 732)
