Federal Court of Australia finds that a transgender woman was indirectly discriminated against after exclusion from ‘women-only’ social media app
Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960
Summary
On 23 August, the Federal Court found that ‘Giggle for Girls’ had indirectly discriminated against a transgender woman by excluding her from an app which was designed as a ‘women-only safe space.’ This is the first court decision that determined that the Sex Discrimination Act 1984 (Cth) (SDA) protects transgender women from discrimination on the basis of their gender identity.
Facts
Roxanne Tickle is a transgender woman. She was assigned male at birth but after her transition was recognised as female under the Births, Deaths and Marriages Registration Act 2003 (Qld) (Qld BDM Registration Act). In 2021, Ms Tickle downloaded the Giggle for Girls App (Giggle App) and provided a selfie as a part of registration. The Giggle App is marketed as a ‘digital women-only safe space’ and provides the selfies to a third-party artificial intelligence software (AI software) designed to distinguish between the facial appearance of men and women. The AI software was deliberately set to err on the side of inclusion – meaning it was more likely to approve users who identified as women rather than excluding users that it may identify as men based on their appearance. Ms Tickle was approved and had access to the app for a period of around 8 months in 2021. However, in late 2021 Ms Tickle was ‘blocked’ and could no longer use some of the app’s functions, such as post content, or read comments on posts made by other users.
In December 2021, Ms Tickle made a complaint to the AHRC claiming that she was being discriminated against on the basis of her gender identity. After deciding the complaint had no reasonable prospect of settling at conciliation, the AHRC terminated the complaint. This allowed Ms Tickle to initiate proceedings in the Federal Court.
The Federal Court found that the Giggle App allows staff to review the AI approved selfies and to reach a different decision. This is likely what happened in Ms Tickle’s case: that a Giggle for Girls (Giggle) staff member later examined her photograph and decided to remove her access to the App.
In the proceedings, Ms Tickle alleged that Giggle had discriminated against her in the provision of their service because of her gender identity. Ms Tickle argued two forms of discrimination: direct discrimination under section 5B(1) of the SDA, and indirect discrimination under section 5B(2) of the SDA. Ms Tickle used ‘cisgender’ to refer to a person whose gender corresponds to their sex at birth, and ‘transgender’ to describe a person whose gender does not correspond with their sex at birth.
Giggle denied all of Ms Tickle’s allegations. They believed that Ms Tickle was an adult male and chose to describe her according to her sex at birth. Giggle argued that Ms Tickle was removed from the app for this reason and that she cannot bring a gender discrimination case under the SDA. Two added arguments that Giggle put forward aimed to challenge the validity of the SDA under the Australian Constitution.
Decision
Direct Discrimination – section 5B(1)
Section 5B(1) of the SDA provides that a person (the discriminator) discriminates against another person on the grounds of the person’s gender identity if, because of the person’s gender identity or a characteristic of it, they treat the person less favourably than they would treat someone of a different gender identity in similar circumstances.
Justice Bromwich found that Giggle did not directly discriminate against Ms Tickle. To satisfy the requirements for direct discrimination, it would need to have been proven that Giggle were likely aware of Ms Tickle’s gender identity and dismissed its legitimacy. Instead, the facts suggested that the decision to exclude Ms Giggle was ‘quick or reflexive choice’ that Ms Tickle appeared to Ms Grover (Giggle CEO) to be a male. The court explained that this is likely because Giggle had a policy of excluding those who were perceived as men in the selfies, including both cisgender men and transgender women.
Indirect discrimination – section 5B(2)
Indirect discrimination occurs when the discriminator imposes a condition which is likely to have the effect of disadvantaging people of the same gender identity as the aggrieved person.
The court found that the ‘imposed condition’ was the need to appear to be a cisgendered female in the photos submitted to Giggle. The court compared the treatment of transgender women with the treatment of cisgender women. Ultimately, the court found that the imposed condition of needing to appear as a cisgendered female did indirectly discriminate against transgender women, and Ms Giggle, by excluding them from the app.
Constitutional Challenges
Giggle argued that the SDA provisions relied upon by Ms Tickle are not valid under the Australian Constitution. Both constitutional arguments put forward by Giggle were unsuccessful. The two arguments were:
(a) Section 22 SDA
Part V of the Constitution lists the areas that Parliament can make laws about. A federal law can be challenged in court by arguing that Parliament did not have the power to make the law because it is not covered by one of the areas listed in Part V of the Constitution. Giggle argued that section 22 of the SDA, which prohibits gender identity discrimination, is invalid because it does not fall within one of the powers listed in Part V of the Constitution.
However, the court found that section 22 of the SDA falls under multiple powers in the Constitution. The court held that section 22 falls under the ‘external affairs power’ because it was modelled off one of Australia’s treaty obligations under Article 26 of the International Covenant on Civil and Political Rights, which prohibits discrimination. The court also decided that because Giggle is a trading corporation, section 22 of the SDA also falls under the ‘corporations power’.
(b) Section 24(4) Qld BDM Registration Act
Under section 109 of the Constitution, if a state law is inconsistent with a federal law, the state law will become invalid. This is what Giggle tried to argue in relation to section 24(24) of the Qld BDM Registration Act, which was a Queensland state law that if a person changed their sex, and it was ‘noted’ under the Act, that person became a legal member of the new sex. Giggle argued that section 24(4) of the Qld BDM Registration Act is inconsistent with the SDA. However, the court found that section 24(4) complements the SDA, and that there is no conflict between them.
Remedies
The Court ordered a range of remedies for the indirect discrimination by Giggle against Ms Tickle, including:
(a) A binding declaration of unlawful discrimination, which is a record confirming that Giggle did discriminate against Ms Tickle;
(b) A ‘modest’ amount of general damages, being $10,000, because evidence of actual loss or damage was ‘slight, if not minimal’, and;
(c) That Giggle pay Ms Tickle's legal costs, with the legal costs from the time spent on the constitutional validity issues being capped at $50,000.
However, the court did not order the following remedies although they were requested by Ms Tickle:
(a) Aggravated damages, because the criteria wasn’t met except in limited circumstances relating to offensive conduct of the respondent towards Ms Tickle throughout the proceedings;
(b) An apology, because Ms Grover ‘adheres to her genuinely held beliefs’ and any apology ‘would have been insincere’, and;
(c) Reinstating Ms Tickle to the app, because the app was shut down shortly after proceedings commenced, and therefore such an order would be ‘incapable of being complied with.’
Commentary
Tickle v Giggle is significant because it is the first case where the court has been asked to decide if a transgender person can be protected from discrimination under the SDA.
The proceedings gained significant media attention as an important decision for trans rights in Australia. It has been described as a great win for transgender women. The Sex Discrimination Commissioner Anna Cody has said that the decision demonstrates that Australia wants “an inclusive society in which all can participate, including trans people.”
Importantly, the case shows how direct and indirect discrimination can be argued as alternatives. The judgment reveals that to satisfy the threshold for ‘direct’ discrimination, it must be proven that the discriminator was actually aware of the person’s gender identity (and not making an assumption that they are a different gender based on their appearance, for example). It also showed that a case of indirect discrimination can be made out by comparing the treatment of transgender women to the treatment of cisgender women, where a particular condition has been imposed that can specially affect the former group.
The case also established that section 22 of the SDA is valid under Part V of the Constitution.
A link to the full text of the judgment can be found here.
Authored by Lilian Bender, Associate, and Georgia Holmes, Paralegal, Wotton + Kearney.