No-one Laughing As Tickle v Giggle Asks, What Is A Woman?

“What is a woman” has become the catchcry of anti-trans activists who argue there are only two genders – male and female. But Australia’s Federal Court has battled with the question of gender identity for three years in the discrimination case Tickle v Giggle, involving a transgender woman.

Transgender woman removed from a women-only app Giggle for Girls

In the case Tickle v Giggle, transgender woman Roxanne Tickle sued women-only social media app “Giggle for Girls” for discrimination, after it removed her from the site when she was identified as a man seven months after she joined.

Lawyers for the site’s creator Sally Grover argued in court that the Sex Discrimination Act 1984 allows for “special measures” to achieve equality, saying the app was for “natal” women – those who were female at birth. The Act itself does not define the word “sex”.

Grover set up the Giggle for Girls site in 2020. It was meant exclusively for women as an online refuge from men, to discuss female experiences such as sexual harassment. When thousands of men applied to join, Grover set up a facial recognition system that could identify males and exclude them.

Grover said she didn’t personally remove Tickle, but it was done by the facial recognition system.

Giggle refuses AHRC’s proposal to accept trans women

Tickle complained to the Australian Human Rights Commission (AHRC) in 2021 that she was being discriminated against by Giggle because of her gender identity. Tickle said she had been living as a woman since 2017, underwent gender affirming surgery in 2019, and her birth certificate was changed to identify her as female.

Grover could not accept the commission’s conciliation proposal, which included Giggle accepting trans women as members. Tickle took the case to the Federal Court. (Please see Tickle v Giggle For Girls Pty Ltd [2023] FCA 553.)

Tickle v Giggle tests meaning of gender in the Sex Discrimination Act

While the case Tickle v Giggle centred on an allegation of gender identity discrimination, it also tested the meaning of gender in the Sex Discrimination Act, raising the legal question of what a “woman” is in law. Is it just a biological question of the person’s sex at birth, or do social and psychological attributes, as well as physical ones, determine what makes a person a woman?

Grover told the court she viewed Tickle as a biological male, despite the sex change. Ms Grover made clear in cross-examination that she does not differentiate between people who were assigned male at birth, even if they have since transitioned to become transgender women, stating “they’re male people”.

The Sex Discrimination Commissioner told the court its definition of “woman” includes transgender women. (Please see Submission of the Australian Human Rights Commission, Roxanne Tickle v Giggle for Girls Pty Ltd, Federal Court of Australia, 10 August 2023.)

Federal Court finds Tickle legally a woman who suffered discrimination

In 2024 Justice Robert Bromwich found Tickle had suffered discrimination and awarded her $10,000. The judge was clear, ruling it was legally “unimpeachable” that Tickle is a woman. (Please see Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960.)

Justice Bromwich said: “The concept of sex has broadened further over the (past) 30 years… especially by reason of the wide scope that now exists for legally changing the sex of a person on official birth records. 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.”

The judgment was appealed, and three judges of the Court of Appeal are expected to deliver their findings in 2026.

Anneka Frayne

Disputes and litigation

Stacks Law Firm

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