CASE COMMENT – Tickle v Giggle – No laughing matter

At the time of writing, Supreme Courts in both the United Kingdom1 and United States2 are considering cases which raise the questions of ‘what is a woman’, and whether it is possible to change sex. This follows on from a US Presidential election in which Democratic Party support for extreme trans rights was a key distinguishing feature highlighted by the Trump campaign – a campaign which ultimately secured a landslide victory for the Republican Party. The Australian case of Tickle v Giggle is similarly destined to be remembered, not only for its amusing name, but also because of its significance in tackling these same questions. It is a case that records a truly extraordinary episode in the history of Australian jurisprudence, and for society generally. The Federal Court judgment in Tickle v Giggle holds that, for the purposes of discrimination law, sex is not confined to biology, is not binary in nature and can be changed – and that as a result, women must allow males who claim to be women into their previously safe spaces and services. The decision acknowledges Roxanne Tickle’s right to access the social media application, Giggle for Girls. Uncritically accepting caselaw recognising change of sex stretching back over 30 years, Bromwich J. effectively adopts the submissions of the Sex Discrimination Commissioner who appears amicus curiae. The court fails to accept the relevance of the expert and lay evidence filed on behalf of the Giggle team, or to reflect on the practical implications of this decision. Arguments as to the lawfulness of special measures to exclude men with the purpose of advancing women’s equality hold no sway as it is accepted by Bromwich J. that Tickle is a woman – and therefore cannot be found to have been discriminated against as a male. Instead, Tickle is found to have been discriminated against on the ground of gender identity. It is not established that the Giggle team knew of Tickle’s gender identity and as a result there is no finding of direct discrimination. Instead, the Court finds that imposing a condition that individuals should appear visibly female constitutes indirect discrimination on the ground of gender identity. The test as to reasonableness is not applied and various constitutional arguments also fail to gain traction.