Last week, the full Federal Court of Australia handed down its much-anticipated decision in Giggle v Tickle and, by all measures, it was one of the most consequential discrimination judgments in many years.
The factual background was that “Giggle for Girls”, a social networking app created as a women-only platform and its director Sall Grover had excluded from the app Roxanne Tickle a trans woman. The exclusion followed upon a selfie photo submitted by Ms Tickle assessed initially by AI Screening as well as Ms Grover and adjudged as depicting a person with male features and therefore not qualifying as a biological woman for whom the platform was reserved.
Ms Tickle sued, alleging discrimination based on “gender identity” which is a protected ground under the Sex Discrimination Act (1984). The Appeal Court went further than the original trial judge which had based its finding on indirect discrimination by holding that Giggle for Girls was guilty of direct discrimination. Damages were doubled to $20,000. The Court held that Tickle directly discriminated against and treated her unfavourably because of characteristics associated with her gender identity — specifically her “gender-related appearance.”
The Affirmative Action provisions to advance women did not help Giggle
Giggle argued the app was protected under section 7D of the Sex Discrimination Act — the “special measures” provision.
Section 7D allows discriminatory measures intended to achieve substantive equality between men and women. It is effectively Australia’s affirmative-action or remedial-equality clause.
Giggle’s argument was straightforward:
- women face sex-based harms from men,
- women therefore need female-only spaces,
- Giggle was created as such a protective space,
- and excluding males was therefore a lawful “special measure.”
Legally, this argument failed because the Court held that even if Giggle were a special measure for women based on sex, section 7D does not authorise discrimination on the separate protected ground of gender identity. The Court effectively said: You cannot use a provision to advance equality for women if the effect would be to defeat independently protected gender identity rights.
The Legal status quo in Australia
The practical result is that under Australian federal law, women-only spaces, physical or digital will be subject to scrutiny.
If a service says: “Women only”
Australian courts are now likely to ask:
- Does that include trans women?
- If not, what precise statutory exemption permits exclusion?
- Is the exclusion genuinely necessary?
- Is it discrimination against gender identity?
Britain is moving differently
Of note, the UK has increasingly moved in the opposite direction.
British courts and public authorities are sharply distinguishing between:
- biological sex,
- gender reassignment,
- and gender identity.
The UK Supreme Court put paid to any dispute in the For Women for Scotland case where it unanimously concluded for the purposes of the Equality Act 2010:
- “woman” means biological woman
- “man” means biological man
- “sex” means biological sex
Accordingly, it concluded a trans woman, even with a full legal certification of altered gender status, is not a “woman” under the Equality Act.
Where to from here?
There are three possible paths ahead for Australia:
- Courts continue strengthening gender identity protection.
The Federal Courts will likely continue to entrench the line now taken when trans individuals seek to enforce rights based on their newly assigned gender namely:
- organisations will need stronger evidence to justify exclusion
- blanket “biological women only” policies will become harder to defend
- and many institutions will default to inclusion to avoid litigation.
- Parliament rewrites the rules
The political response has already begun.
Following the appeal ruling, Coalition figures signalled support for legislation defining sex biologically and protecting sex-based spaces. This raises the possibility that both at Federal and State levels Sex Discrimination laws will in time be amended to provide for female-only services or legally define “sex” separately from “gender identity”.
- Institutions adopt compromise models
This may be the most likely real-world outcome.
Instead of absolute rules, many organisations may create:
- women-only spaces that are trans-inclusive,
- female-only spaces with case-by-case exemptions,
- parallel services.
Conclusion
Ultimately, Giggle v Tickle illustrates a conflict that is no longer confined to the margins of discrimination law but now sits at the centre of a broader social, political and legal debate unfolding across much of the democratic world. Courts and legislatures are increasingly being asked to reconcile two claims that are both grounded in human dignity and equality: the right of transgender women to live free from exclusion and discrimination, and the right of women born biologically female to maintain certain sex-based spaces, protections and associational freedoms developed in response to historical disadvantage and vulnerability.
Different jurisdictions are now resolving that tension in markedly different ways. Australia, at least for the present, appears to be moving toward a more inclusionary model in which gender identity protections will be interpreted broadly. The challenge ahead for lawmakers, courts and institutions will not be to declare one set of rights inherently superior to the other, but to develop principled and workable frameworks that acknowledge the legitimacy of both concerns, minimise unnecessary conflict, and provide clearer guidance about where inclusion, privacy, safety, dignity and freedom of association should each properly prevail.