Our article Transgender protections in the spotlight: What it means for your organisation discussed the implications and significance of Roxanne Tickle v Giggle for Girls on clarifying the protections under Sex Discrimination Act 1984 (Cth) (Act). The Federal Court has now handed down its decision which confirms that transgender people are protected under the Act.
Background of the case
Roxanne Tickle is a transgender woman who was removed from the mobile app, Giggle for Girls (Giggle) which is an online communication app for women that does not allow men to join or use the app. The CEO, Sally Grover, removed Ms Tickle’s account on the basis that Ms Grover considered her to be male upon review of her photograph.
Ms Tickle lodged a discrimination claim against Giggle with the Federal Court on the basis of her gender identity.
In defending the claim, Giggle argued that:
- Ms Tickle was discriminated on the basis of her sex which they considered to be male as her ‘sex’ could not be changed; and
- Giggle was a ‘special measure’ to promote the substantive of women, which is an accepted form of lawful discrimination.
Federal Court Decision
The Federal Court found that Giggle engaged in indirect discrimination towards Ms Tickle on the basis of her gender identity. Under the Act, indirect discrimination occurs when a person imposes or a requirement, condition or practice which has or is likely to have the effect of disadvantaging persons who have the same identity as the aggrieved person (in this case, the same gender identity as Ms Tickle). It was found that Giggle imposed a condition that users were required to appear as a cisgendered female in order to be permitted access the app. This requirement had the effect of disadvantaging transgender women in comparison to cisgendered women.
The discrimination was not considered to be direct discrimination as direct discrimination required Ms Grover to have actual knowledge that Ms Tickle was a transgender woman and there was no evidence of this.
The Federal Court did not accept Giggle’s argument that there was discrimination on the basis of sex. The Court confirmed that ‘sex’ takes a broader ordinary meaning as opposed to a biological concept referring to whether a person at birth has male or female physical traits. It accepted that a person’s sex could change and refers to a person being male, female or another non-binary status. The definition of ‘sex’ takes into account a range of factors including biological and physical characteristics, legal recognition and how they present themselves and are recognised socially. The Court recognised Ms Tickle’s sex as being female and therefore it could not be that she was discriminated on the basis of her sex as argued by Giggle.
It was also not accepted that the special measure exception applied. As Giggle argued that its purpose was to achieve substantive equality between men and women, the exception would only apply if it was discriminating against a male on the basis sex. It did not apply in the present situation as Ms Tickle is a transgendered woman.
Additionally, the Federal Court rejected Giggle’s argument that relevant provisions of the Act were unconstitutional.
The Federal Court ordered that Giggle pay Ms Tickle compensation in the sum of $10,000 and pay her costs. Giggle is currently seeking to appeal the decision.
How we can help
The decision confirms that the Act protects transgender people on the basis of their gender identity and provides clarification as to the definition of ‘sex’ in the Act. The case highlights that organisations should carefully consider whether their practices and conduct in relation to single sex spaces and services are lawful and reasonable, and whether an exception, exemption or special measure could apply.
Our safeguarding and discrimination team can assist organisations to understand how state and federal anti-discrimination laws apply to their operations, and the extent to which exceptions or exemptions may apply.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.