Tickle v Giggle for Girls Pty Ltd (No 2)
[2024] FCA 960
•23 August 2024
FEDERAL COURT OF AUSTRALIA
Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960
File number: NSD 1148 of 2022 Judgment of: BROMWICH J Date of judgment: 23 August 2024 Catchwords: HUMAN RIGHTS – gender identity discrimination – s 5B and 22 of the Sex Discrimination Act 1984 (Cth) (SDA) – where transgender woman excluded from a woman’s only social media application – construction of “sex” in s 5 of the SDA – construction of s 5B of the SDA – construction of s 7D (special measures exception) of the SDA – whether respondents had engaged in direct or indirect gender identity discrimination – where applicant removed on visual inspection of a photograph submitted to the social media app in question – whether evidence established awareness of applicant’s gender identity on the part of the respondents – whether respondents effected a policy of excluding transgender women – HELD: respondents had engaged in indirect gender identity discrimination against the applicant
CONSTITUTIONAL LAW – whether s 22, to the extent it prohibits discrimination on the ground of gender identity, not supported by head of Commonwealth legislative power – external affairs power – corporations power – operation of s 9 on construction of provisions of the SDA – Convention for the Elimination of All Forms of Discrimination Against Women (1979) (CEDAW) – Art 26 of the International Covenant on Civil and Political Rights (1966) (ICCPR) – meaning of discrimination against women under CEDAW – whether gender identity is a status for the purposes of Art 26 of the ICCPR – whether Giggle for Girls Pty Ltd is a trading corporation – whether CEDAW and/or Art 26 of the ICCPR support the prohibition of gender identity discrimination in s 22 – HELD: s 22, to the extent that it prohibits discrimination on the ground of gender identity, supported by the external affairs power as an enactment of Art 26 of the ICCPR – s 22, to the extent that it prohibits discrimination on the ground of gender identity, also supported by the corporations power in application to the respondents as Giggle for Girls Pty Ltd is a trading corporation and the second respondent its officer
CONSTITUTIONAL LAW – whether s 24(4) of the Births, Deaths and Marriages Registration Act 2003 (Qld) invalid for inconsistency with the SDA under s 109 of the Constitution – HELD: legislation not inconsistent
DAMAGES – limitation of s 46PO(3) on Court’s jurisdiction to award remedies under s 46PO(4) of the Australian Human Rights Act 1986 (Cth) – availability of aggravated damages for subsequent conduct in discrimination claims – HELD: declarations made and compensation awarded under s 46PO(4) Australian Human Rights Act 1986 (Cth)
Legislation: Constitution ss 51(xx), (xxix), 109, 122
Acts Interpretation Act 1901 (Cth) ss 15 (rep), 11B(1)
Australian Human Rights Commission Act 1986 (Cth) ss 46P, 46PH(1B)(b), 46PO(1), (3), (4), 46PV
Disability Discrimination Act 1992 (Cth)
Evidence Act 1995 (Cth) ss 41, 76, 79, 161(1)
Judiciary Act 1903 (Cth) s 78B
Federal Court of Australia Act 1976 (Cth) ss 21(1), 23
Sex Discrimination Act 1984 (Cth) ss 3, 4, 5, 5A, 5B, 5C, 7A, 7AA, 7B, 7C, 7D, 9(4), (10), (11), (13), 10(3), 11(3), 22, 28B(2), 94
Convention for the Elimination of All Forms of Discrimination Against Women (1979) Arts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30
International Covenant on Civil and Political Rights (1966) Art 26
Optional Protocol to the Convention for the Elimination of All Forms of Discrimination Against Women (1999)
Vienna Convention on the Law of Treaties (1969) Arts 31, 32
Anti-Discrimination Act 1991 (Qld) ss 7(1)(f), 14(1)(b), 119
Births, Deaths and Marriages Registration Act 1996 (Vic) s 30A
Births, Deaths and Marriages Registration Act 2003 (Qld) s 24
Births, Deaths and Marriages Registration Act 2023 (Qld) s 142
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Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) [2010] ICJ Rep 639 at 664
Alexander v Home Office [1988] 1 WLR 968 at 975; [1988] 2 All ER 118
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Elliott v Nanda [2001] FCA 418; (2001) 111 FCR 240
Ewin v Vergara (No 3) [2013] FCA 1311; 307 ALR 576
Greenhalgh v National Australia Bank Ltd (1997) EOC ¶92-884
Grigor-Scott v Jones [2008] FCAFC 14; 168 FCR 450
Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217
Hanson v Burston [2022] FCA 1234
Houda v New South Wales [2005] NSWSC 1053
Hughes (t/as Beesley and Hughes Lawyers) v Hill [2020] FCAFC 126; 277 FCR 511
Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301
Jacomb v Australian Municipal Administrative Clerical and Services Union [2004] FCA 1250; 140 FCR 149
Jones v Toben [2002] FCA 1150; 71 ALD 629
LibertyWorks Inc v Commonwealth [2021] HCA 90; 274 CLR 1
McIntyre v Tully (1999) 90 IR 9
Poniatowska v Hickinbotham [2009] FCA 680
Purvis v New South Wales [2003] HCA 62; 217 CLR 92
Queensland v Commonwealth [1989] HCA 36; 167 CLR 232
R v Federal Court of Australia; Ex parte Western Australian National Football League (Inc) [1979] HCA 6; 143 CLR 190
R v JS [2007] NSWCCA 272; 230 FLR 276
Riley v Commonwealth [1985] HCA 82; 159 CLR 1
Secretary, Department of Social Security v SRA (1993) 43 FCR 299
Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; 256 FCR 247
Taylor v August and Pemberton Pty Ltd [2023] FCA 1313
Tickle v Giggle for Girls Pty Ltd [2023] FCA 553
Triggell v Pheeny (1951) 82 CLR 497
United Firefighters Union of Australia v Country Fire Authority [2015] FCAFC 1; 228 FCR 497
Victoria v Commonwealth [1996] HCA 56; 187 CLR 416 (Industrial Relations Act Case)
Whittle v Paulette (1994) EOC ¶92-621
WorkHealthAuthorityvOutbackBallooningPtyLtd [2019] HCA 2; 266 CLR 428
Wotton v Queensland (No 5) [2016] FCA 1457; 352 ALR 146
Azaria, Danae “The Legal Significance of Expert Treaty Bodies Pronouncements for the Purpose of Interpretation of Treaties”, International Community Law Review 22 (2020) 33-60
CEDAW Committee, Concluding observations on Russian Federation, UN Doc, CEDAW/C/USR/CO/7 (16 August 2010)
CEDAW Committee, Concluding observations on Russian Federation, UN Doc CEDAW/C/RUS/CO/9 (30 November 2021)
CEDAW Committee, Concluding Observations on the eighth periodic report of Australia, UN Doc CEDAW/C/AUS/CO/8 (25 July 2018)
CEDAW Committee, General Recommendation 28 on the core obligations of States Parties under article 2 of the CEDAW, UN Doc CEDAW/C/GC/28 (16 December 2010)
CEDAW Committee, General Recommendation No. 33 on women’s access to justice, UN Doc CEDAW/C/GC/33 (3 August 2015)
CEDAW Committee, General Recommendation No 35 on gender-based violence against women, updating general recommendation No. 19, UN Doc CEDAW/C/GC/35 (26 July 2017)
CEDAW Committee, General recommendation No. 39 on the rights of Indigenous women and girls, UN Doc CEDAW/C/GC/39 (31 October 2022)
Explanatory Memorandum, Sex Discrimination Amendment Bill 2010
Explanatory Memorandum, Sex Discrimination Amendment (Sexual Orientation, Gender Identity And Intersex Status) Bill 2013
Human Rights Committee, Alekseev v Russian Federation, Communication No. 2757/2016, UN Doc CCPR/C/130/D/2757/2016 (9 June 2021)
Human Rights Committee, General Comment 18: Non-discrimination, 37th sess (10 November 1989)
Human Rights Committee, General Comment 31: Nature of the General Legal Obligation on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13 (29 March 2004)
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Senate Standing Committee on Legal and Constitutional Affairs, Effectiveness of the Sex Discrimination Act 1984 in eliminating discriminating and promoting gender equality (Report, December 2008)
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Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 283 Date of hearing: 9 – 11 April 2024 Counsel for the Applicant: Ms G Costello KC, Ms B Goding and Ms E Nadon Solicitor for the Applicant: Barry Nilsson Lawyers Counsel for the Respondents: Ms B Nolan and Ms A Costin Solicitor for the Respondents: Alexander Rashidi Lawyers Counsel for the Intervener: Ms Z Heger and Ms Z Graus Solicitor for the Intervener: Australian Human Rights Commission ORDERS
NSD 1148 of 2022 BETWEEN: ROXANNE TICKLE
Applicant
AND: GIGGLE FOR GIRLS PTY LTD
First Respondent
SALLY GROVER
Second Respondent
SEX DISCRIMINATION COMMISSIONER
Intervener
ORDER MADE BY:
BROMWICH J
DATE OF ORDER:
23 AUGUST 2024
THE COURT ORDERS THAT:
1.The parties confer and within 7 days provide to the chambers of Justice Bromwich an agreed draft, or competing drafts, of a declaration of contravention by way of indirect gender discrimination.
2.The first and second respondents pay to the applicant a sum of $10,000 within 60 days.
3.The respondents pay the applicant’s costs.
4.The component of the costs awarded by order 3 which relate to the constitutional validity and statutory construction issues, be capped at $50,000, being the cap imposed in respect of those issues by order 3 made on 1 June 2023, for the reasons given in Tickle v Giggle for Girls Pty Ltd [2023] FCA 553.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PART 1: INTRODUCTION AND SUMMARY OF CONCLUSIONS
[1]
PART 2: OVERVIEW OF THE CASE
[13]
(a) Leave to the Sex Discrimination Commissioner to appear amicus curiae
[13]
(b) Overview of the evidence
[16]
(c) Key provisions of the SDA
[31]
(d) Pleadings
[41]
PART 3: INTERPREATION OF KEY PROVISIONS OF THE SDA
[65]
(a) History of amendments to the SDA
[65]
(b) Construction of gender identity and s 5B
[74]
(c) The special measures exception to discrimination
[81]
PART 4: EVIDENCE AND FACTUAL CONCLUSIONS
[87]
(a) Ms Tickle
[87]
(b) Ms Grover
[90]
(c) Giggle and the Giggle App
[95]
(d) The removal of Ms Tickle from the Giggle App
[108]
(i) Background
[108]
(ii) Ms Tickle’s account creation and removal
[110]
(ii) Conclusions on gender identity discrimination
[129]
(e) Other evidence relied upon by the respondents
[137]
(i) Expert evidence
[138]
(ii) Lay evidence
[148]
PART 5: CONSTITUTIONAL ISSUES
[149]
(a) Is s 22 beyond the scope of Commonwealth legislative power to the extent it prohibits discrimination on the ground of gender identity?
[150]
(i) The external affairs power
[157]
CEDAW
[162]
Art 26 of the ICCPR
[181]
(ii) The trading corporations power
[189]
(b) Is s 24 of the Births, Deaths and Marriages Registration Act 2003 (Qld) (Qld BDM Registration Act) invalid by reason of inconsistency with the SDA?
[197]
PART 6: REMEDIES
[205]
(a) Declaration
[214]
(b) General damages
[216]
(i) Exacerbation of a pre-existing psychiatric condition
[220]
(ii) Injured feelings
[223]
(iii) Conclusions as to general damages
[228]
(c) Aggravated damages
[232]
(i) Authority and principles
[232]
(ii) Refusal to attend AHRC conciliation proceedings
[252]
(iii) Refusal to reinstate Ms Tickle’s access to the Giggle App
[254]
(iv) Subsequent comments by Ms Grover and her supporters
[255]
Messages and posts by supporters
[256]
Posts by Ms Grover
[261]
(v) Conduct at trial
[272]
(vi) Conclusion as to aggravated damages
[277]
(d) An apology
[278]
(e) Reinstatement
[282]
PART 7: CONCLUSION
[283]
REASONS FOR JUDGMENT
BROMWICH J:
PART 1: INTRODUCTION AND SUMMARY OF CONCLUSIONS
The applicant, Roxanne Tickle, by an originating application and amended statement of claim, sues the first respondent, Giggle for Girls Pty Ltd, and the second respondent, Sally (Sall) Grover, the founder and chief executive officer (CEO) of Giggle, for alleged unlawful gender identity discrimination in the provision of services, contrary to s 22 of the Sex Discrimination Act 1984 (Cth) (SDA). These reasons refer to Giggle and Ms Grover collectively as the respondents.
The topic of the gender identity of a person, as distinct from the sex that a person had or was assigned at the time of birth, is one that Roxanne Tickle regards as straightforward and supported by the SDA and other legislation, as well as international law, including treaties to which Australia is a party. The respondents regard only sex at birth as being a valid basis on which a person may claim to be a man or woman. The respondents do not accept that a person’s sex can be a matter for self-identification. Correspondingly, they do not accept either the validity or legitimacy of the gender identity discrimination provisions of the SDA. This Court is confined to determining, only to the extent necessary, the validity, meaning and application of the SDA, including in particular whether there has been a contravention of the proscriptions on gender identify discrimination.
Roxanne Tickle was of the male sex at the time of birth, but is now recognised by an official updated Queensland birth certificate, issued under the Births, Deaths and Marriages Registration Act 2003 (Qld) (Qld BDM Registration Act), as being of the female sex. This followed from, and was predicated on, sexual reassignment surgery, being the term used in the Qld BDM Registration Act, which will be used in these reasons. Roxanne Tickle’s updated birth certificate gives rise to an entitlement to be referred to by female pronouns. Accordingly, in these reasons I will refer to her as Ms Tickle.
The term cisgender features in Ms Tickle’s amended statement of claim and appears in numerous places in these reasons, but does not appear in the SDA. As I noted in Tickle v Giggle for Girls Pty Ltd [2023] FCA 553 (Tickle v Giggle No 1) at [11], cisgender refers to a person whose gender corresponds to the sex registered for them at birth. That is to be contrasted with a person whose gender does not correspond with their sex as registered at birth, commonly referred to as transgender. The respondents do not accept the legitimacy of the terms cisgender and transgender.
The gender identity discrimination asserted by Ms Tickle is in relation to the provision of services, alleging both direct discrimination as defined in s 5B(1) of the SDA, and indirect discrimination as defined in s 5B(2). The conduct said to constitute both direct and indirect discrimination arises from Ms Tickle being prevented by the respondents from using a mobile phone digital software application, commonly known as an App, marketed for social communication between women (the Giggle App). While both direct and indirect discrimination may be alleged in the alternative, only one of the two can ever succeed in relation to a given allegation of discrimination. While both are alleged, Ms Tickle confirmed at the hearing that her allegations of direct and indirect gender identity discrimination were advanced as alternatives.
Ms Tickle seeks declarations of contravention, damages (including aggravated damages), a published written apology and an order to allow Ms Tickle to access the Giggle App on the same terms offered to other female users. The claim for aggravated damages was not particularised, nor well evidenced. Ms Tickle’s pleadings were not well drafted.
The distinction between direct and indirect discrimination in s 5B of the SDA is considered in some detail later in these reasons. It suffices at this stage to note that:
(a)direct discrimination is discrimination by reason of gender identity, whether it be that actual gender identity, or a characteristic that appertains to, or is generally imputed to, persons who have that gender identity;
(b)indirect discrimination is the imposition, or proposed imposition, of a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging a person relative to another person or persons who have a different gender identity.
The respondents do not deny that Ms Tickle was prevented from using the Giggle App. Instead, they challenge the constitutional validity of the gender identity discrimination provisions of the SDA inserted in 2013. That was principally achieved by the addition of the phrase “gender identity”, defined in s 4, to the grounds for discrimination in the provision of goods or services in s 22, and the corresponding stipulation of what constitutes direct or indirect discrimination on the ground of gender identity as described in s 5B.
The respondents deny in any event that they engaged in any unlawful discrimination by way of either direct or indirect gender identity discrimination. The respondents deny that the applicant is entitled to any relief, and in the alternative contend that any damages awarded should be minimal. The respondents also challenge the validity of the provisions of the Qld BDM Registration Act that allow the change to a person’s registered sex on the basis that those provisions are in conflict with the SDA and thus inoperative by reason of the operation of s 109 of the Constitution. As will be dealt with in detail later in this judgment, that challenge is misconceived and must fail.
I have concluded that the gender identity discrimination provisions in the SDA are valid because they are supported by s 51(xxix) of the Constitution (external affairs power) as an enactment of Australia’s obligations under Art 26 of the International Covenant on Civil and Political Rights (1966) (ICCPR). Their application in the present case is also supported by the power in s 51(xx) of the Constitution (corporations power), by reason of Giggle being a trading corporation and Ms Grover, its officer.
The SDA according to its objects seeks to give effect to the Convention for the Elimination of All Forms of Discrimination Against Women (1979) (CEDAW), and the respondents argued that CEDAW does not and cannot support the gender identity discrimination provisions in the SDA. It has not been necessary to decide whether s 22, when read with s 5B, is generally supported by CEDAW, via the external affairs power. This is because the kind of discrimination that Ms Tickle complains about does not engage CEDAW in relation to the SDA any event, not being discrimination in favour of a man or men. It is well established that questions of constitutional validity should ordinarily only be determined if they properly arise on the case that has been brought: LibertyWorks Inc v Commonwealth [2021] HCA 90; 274 CLR 1 at [90].
For the reasons that follow, I have decided that the outcome of Ms Tickle’s suit should be as follows:
(a)Ms Tickle’s claim of direct discrimination fails, which was not really the case that she brought;
(b)Ms Tickle’s claim of indirect discrimination succeeds, being the substance of the case that she did bring based on a condition being imposed for the use of the Giggle App that she was required by that condition to have the appearance of a cisgender woman;
(c)Ms Tickle is entitled to a declaration of contravention for indirect identity discrimination;
(d)Ms Tickle’s claim for general damages succeeds, but her claim for separate and additional aggravated damages fails;
(e)the respondents must pay Ms Tickle compensation in the sum of $10,000;
(f)Ms Tickle’s claim for an apology fails because it is futile and inappropriate to require an inevitably insincere apology to be made; and
(g)the respondents must pay Ms Tickle’s costs;
(h)the costs in respect of the constitutional validity and statutory construction issues is limited to $50,000, being the cap imposed in respect of those issues by order 3 made on 1 June 2023, for the reasons given in Tickle v Giggle No 1, though I will allow either party to make an application for an alternate order within 14 days, or such further time as I may allow.
PART 2: OVERVIEW OF THE CASE
(a) Leave to the Sex Discrimination Commissioner to appear amicus curiae
Under s 46PV of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), on 16 June and 8 August 2023 I granted leave to the Sex Discrimination Commissioner to appear as amicus curiae (that is, as a friend of the Court) and to make submissions on the following topics:
(a)the construction, meaning and scope of provisions of the SDA dealing with discrimination on the grounds of sex and gender identity;
(b)the construction, meaning and scope of provisions of the SDA dealing with special measures;
(c)the constitutional validity of the amendments to the SDA made by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) (the 2013 SDA Amendment), based on the respondents’ amended notice under s 78B of the Judiciary Act 1903 (Cth) dated 30 June 2023 (amended s 78B notice), understood by the Commissioner to be limited to the validity of s 5B in its application to s 22 of the SDA; and
(d)whether s 24(1) of the Qld BDM Registration Act is inconsistent with ss 5, 5B, 7B, 7D and 22 of the SDA by operation of s 109 of the Constitution, an issue also raised in the respondents’ amended s 78B notice.
The Commissioner did not appear for or with either side in this proceeding, and was not a party to the proceeding. The Commissioner did not make any submission on the question of whether or not gender identity discrimination had in fact taken place. Rather, the Commissioner, via counsel, assisted the Court on key legal questions, especially in relation to the interpretation of the SDA and its constitutional validity. I was substantially assisted by counsel for the Commissioner.
Ms Tickle largely adopted the Commissioner’s submissions on the above topics with little addition, while the respondents opposed them, but did not fully or even adequately address them. Not every aspect of the Commissioner’s submissions needed to be considered, especially on the topic of reliance on CEDAW to support the gender identity discrimination provisions of the SDA, because of the nature of the Ms Tickle’s case which did not allege any gender identity discrimination in favour of a man or men.
(b) Overview of the evidence
The essential facts as to what took place are largely not disputed, as briefly summarised below, and detailed further later in these reasons as necessary.
In about February 2021, Ms Tickle downloaded the Giggle App. The Giggle App had been marketed as being a means for women to communicate with one another in what was described as a digital women-only safe space. Ms Tickle undertook a registration process to gain access to the Giggle App, which including providing information and uploading a self-taken photograph of her face, commonly known as a selfie.
The photograph provided by Ms Tickle to Giggle was assessed by third-party artificial intelligence (AI) software, designed to distinguish between the facial appearance of men and women. The trial evidence from Ms Grover, which I accept, established that the AI software was deliberately set to less than its maximum reliability, so as to err on the side of inclusion of a user who identified as a woman rather than exclusion of a user because they were identified by the AI software as a man. If that AI software accepted the photograph, access was granted to the Giggle App. Ms Tickle gained access to the Giggle App.
In the period between February and sometime in September 2021, Ms Tickle had access to the Giggle App’s features and used it to read content posted by other users. In September or early October 2021, Ms Tickle logged on to the Giggle App, but found that she could no longer post content or comment on other users’ posts, or read comments on posts made by other users. That is, the functionality of the Giggle App had become limited for her as a user. When she attempted to purchase premium features on the Giggle App, she received a “User Blocked” message. Her attempts to contact Giggle via the in-App contact form received no response.
In October 2021, Ms Tickle sent a series of eight emails about being blocked to a general Giggle email address and Ms Grover. Ms Grover responded by replying to the first of those emails, requesting that Ms Tickle provide her phone number. That email from Ms Grover included, as part of her email signature block, a mobile telephone number. Ms Tickle provided a mobile number by reply email, but says she did not receive any response, an assertion that is only correct if this is understood as meaning that no subsequent conversation or email response took place, because her affidavit evidence states that she later missed a call from Ms Grover. In late October 2021, Ms Tickle tried to contact Ms Grover by SMS and two phone calls, at the number listed in Ms Grover’s email signature. Other than the missed call, there was no response.
On 5 December 2021, Ms Tickle made a complaint to the AHRC under s 46P of the AHRC Act, naming both respondents, and asserting that, by being given limited access to the Giggle App, she was being discriminated against on the basis of her gender identity. The original complaint did not specify the provision of the SDA that she alleged had been breached.
On 20 January 2022, the AHRC sent a copy of the complaint to the respondents. On 3 March 2022, the respondents replied, declining to participate in AHRC conciliation processes.
The Giggle App enabled there to be a later examination by a Giggle staff member of any photographs submitted, assessed and accepted by the AI software for the purposes of user access. That staff member could reach a different conclusion as to whether a person was female, which could result in a user being denied access to the Giggle App. A substantial number of persons whose photographs were accepted by the AI software were subsequently examined and were denied user access to the Giggle App. Ms Grover’s evidence was that a large number of men had attempted to access the Giggle App. However, given her belief as to what the word man means, it is unclear if this included transgender women, and if so, whether this formed any part of the reason for denying access. This could have been tested or clarified in cross-examination, but was not.
It is most likely that Ms Tickle was denied user access to the Giggle App as a result of a general review process by a natural person of the AI acceptances of registration, rather than by reason of her being singled out. This was probably carried out by Ms Grover herself despite her having no specific recollection of having done so, but may have been done by someone else at Giggle, to the extent that such assistance was provided. Again, this could have been clarified in cross-examination, but it was not.
On 8 March 2022, the AHRC advised Ms Tickle that the respondents had declined to participate in conciliation. On 5 April 2022, a delegate of the President of the AHRC provided Ms Tickle with notice that the complaint was being terminated pursuant to s 46PH(1B)(b) of the AHRC Act, on the ground that they were satisfied that there was no reasonable prospect of the matter being settled by conciliation.
The making of the complaint to the AHRC and it being terminated enabled Ms Tickle to bring a gender identity discrimination proceeding in a designated Court, being either this Court or Div 2 of the Federal Circuit and Family Court of Australia (formerly the Federal Circuit Court, and for convenience referred to by that name): see s 46PO(1) of the AHRC Act.
Ms Tickle initially brought and then discontinued a proceeding in the Federal Circuit Court in the short period between June and July 2022, as explained in Tickle v Giggle No 1 at [4]. She then commenced this proceeding in this Court in December 2022, and was granted an extension of time for the bringing of this second proceeding for the reasons given in Tickle v Giggle No 1 at [5].
In August 2022, between the end of the first proceeding in the Federal Circuit Court in June to July 2022 and the commencement of the proceeding in this Court in December 2022, Giggle ceased to make the Giggle App available to anyone. The respondents asserted that this would remain the position unless and until their conduct was found to be lawful. That intention was not challenged. I therefore accept that to be the position, even if it might later change.
In her amended statement of claim, Ms Tickle alleges, and the respondents admit, the following background facts:
(a)Giggle is an Australian proprietary company, limited by shares, and is wholly owned by, and operated through, a holding company, WADD Holdings Pty Ltd. However, the respondents deny that Giggle is a trading corporation or is subject to the SDA, including by reason of, relevantly, s 9(11) and (13), engaging the trading corporation aspect of the power in s 51(xx) of the Constitution. As foreshadowed, I ultimately found that Giggle was a trading corporation at the time of the conduct the subject of this proceeding.
(b)Ms Grover is the sole director and CEO of Giggle and was at all material times its controlling mind.
(c)Ms Grover uses the Twitter (now X) social media platform, with the username Sall Grover and handle @[redacted], and describes herself as the “Founder and CEO of Giggle, a female social network”.
(d)At all relevant times, Giggle owned and operated the Giggle App.
The respondents principally deny any allegation of fact that describes Ms Tickle as a woman or any other allegation which directly or indirectly entails acceptance that this is so. I am satisfied that this reflects a genuinely held belief by Ms Grover and thus by Giggle, rather than reflecting any malice towards Ms Tickle, although manifested in the use of language that is unfortunate and unnecessary. However, that stance is not capable of meeting or denying the operation of the provisions proscribing gender identity discrimination if they are valid.
(c) Key provisions of the SDA
The key provisions of the SDA are as follows.
Section 4 defines gender identity:
gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.
Section 5B describes the circumstances in which a person will discriminate against another person on the ground of gender identity, with sub-s (1) describing direct discrimination and sub-s (2) describing indirect discrimination:
5B Discrimination on the ground of gender identity
(1)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identity if, by reason of:
(a) the aggrieved person’s gender identity; or
(b)a characteristic that appertains generally to persons who have the same gender identity as the aggrieved person; or
(c)a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity.
(2)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identify if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the aggrieved person.
(3) This section has effect subject to sections 7B and 7D.
The effect of s 8 is that conduct that occurred for more than one reason can still be caught as direct discrimination under s 5B(1), conduct will be “by reason of” a matter referred to in paras (a) to (c) if it was the only, or one of two or more reasons for that conduct, whether or not it was the dominant or substantial reason for that conduct.
Section 22 proscribes discrimination in the supply of goods and services on a number of grounds, including gender identity:
22 Goods, services and facilities
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b)in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
Section 5B(3), reproduced above, provides that s 5B applies subject to ss 7B and 7D:
(a)Section 7B provides a reasonableness test in relation to conduct otherwise constituting indirect discrimination as defined by s 5B(2), whereby that conduct will not be discriminatory if the condition, requirement or practice is reasonable in the circumstances, considering the matters set out in s 7B(2):
(a)the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
(b)the feasibility of overcoming or mitigating the disadvantage; and
(c)whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.
(b)Section 7C provides that the burden of proving reasonableness in the circumstances, for the purposes of s 7B, lies on the person who did the otherwise discriminating act.
(c)Section 7D allows persons to take special measures for the purpose of achieving specified kinds of “substantive equality”, but only until equality is achieved: s 7D(4). These special measures are deemed not discriminatory under other provisions of the SDA by the operation of s 7D(2), provided that the sole, dominant or substantial purpose of the special measure is to achieve a form of substantive equality specified in s 7D(1): s 7D(3). The forms of substantive equality listed in s 7D(1) are:
A person may take special measures for the purpose of achieving substantive equality between:
(a)men and women; or
(aa)people who have different sexual orientations; or
(ab)people who have different gender identities; or
(ac)people who are of intersex status and people who are not; or
(b)people who have different marital or relationship statuses; or
(c)women who are pregnant and people who are not pregnant; or
(d)women who are potentially pregnant and people who are not potentially pregnant; or
(e)women who are breastfeeding and people who are not breastfeeding; or
(f)people with family responsibilities and people without family responsibilities.
The respondents’ pleaded defence does not rely on s 7B. In closing submissions, their lead counsel made reference to reliance on the provision, but made no attempt to explain how it applied in this case, let alone any attempt to discharge the burden of establishing that was so required by s 7C. I am therefore unable to understand how it is even conceptually able to be advanced that the imposed condition was reasonable in the circumstances, let alone be satisfied that the burden of establishing that this was so has been discharged.
Because the Commonwealth Parliament has no direct head of power by which to implement anti-discrimination laws, the SDA relies upon a creative suite of powers to overcome this. Section 9 of the SDA has the evident purpose of ensuring the operative provisions are given only that effect that is properly supported by a head of Commonwealth legislative power: AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140; 162 FCR 528 (AB v Registrar of BDM) at [76] (Kenny J, Gyles J agreeing). Section 9(4) provides that certain “prescribed provisions” in Div 3 of Part II and Part II of the Act are to “have effect as provided by sub-section (3) of this section and the following provisions of this section and not otherwise.” Many of those following provisions refer to powers that have no application in the present case, such as the Territories power in s 122 of the Constitution and many others besides.
The heads of power pertinent to this proceeding are the trading corporations aspect of the corporations power in s 51(xx), and the external affairs power in s 51(xxix) of the Constitution, insofar as it is relied upon to implement international instruments, such as conventions, to which Australia is a party: see s 9(10) for the external affairs power, and s 9(11)-(14) for the corporations power. The respondents assert that neither of those heads of power can be relied upon to support the gender identity discrimination provisions of the SDA, which necessarily focusses on s 22 as the operative provision relied upon. The arguments both ways and their resolution are addressed at Part 5(a) below.
The legislative history of the provisions reproduced or summarised above, the construction of the legislated concept of gender identity in the context of that history, and the special measures exception to discrimination are considered in Part 3 of these reasons below.
(d) Pleadings
Ms Tickle’s case, as pleaded in her amended statement of claim in aspects that did not change with the amendments, did not clearly or coherently distinguish between direct and indirect discrimination, instead confusing the two. In particular, Ms Tickle pleaded reliance on s 5B(1) (direct discrimination) by reference to being discriminated against “on the basis of her gender identity”, rather than the words in s 5B(1) “by reason of” that identity, and then particularised the conduct by reference to an imposed condition, which is a feature of s 5B(2) (indirect discrimination). That is, the terms of the two different forms of discrimination were conflated. The asserted imposed condition is that a person must be a cisgender woman or be determined as having cisgendered female physical characteristics by Ms Grover on review of their photograph.
The pleading of indirect discrimination refers to the outcome of not being able to gain ordinary access to the Giggle App by reason of the imposed condition, and to disparaging conclusions and exclusion based on appearance. The requirements of the imposed condition do not truly relate to indirect discrimination, referring to the adoption of a policy of direct discrimination instead.
None of these shortcomings were identified by the respondents and no objection was taken to the amended statement of claim until these issues were raised by the Court during closing submissions. When these pleading problems were pointed out in the course of closing submissions, senior counsel for Ms Tickle maintained claims of both direct and indirect discrimination, asserting that these were pleaded in the alternative, but the substance of the case advanced ultimately only really relied upon indirect discrimination.
As adverted to earlier in these reasons, the amended statement of claim uses the term cisgender, a word used in the community and in particular in discourse concerning gender identity, but not in the language of the SDA. As noted earlier in these reasons, the term cisgender refers to a person whose gender corresponds to the sex registered for them at birth: Tickle v Giggle No 1 at [11]. That is to be contrasted with a person whose gender does not correspond with their sex as registered at birth, a status commonly described as transgender to reflect that difference, although Ms Tickle’s preference is simply to describe herself as a woman without that qualification or explanation. By contrast, the respondents’ defence uses the terms “adult male human” and “adult female human”, adhering to the sex of a person as registered at birth, disregarding legislative language in the SDA to the contrary, and ignoring recognition of changes to sex pursuant to the Qld BDM Registration Act as a basis for being called female (or male) under the SDA.
The respondents object to the use of the terms cisgender and transgender. They anchor all the terminology they use to a person’s sex at birth, contending the word “man” can only mean an adult human male, and the word “woman” can only mean an adult human female. They do not accept that this can ever change, contending that biology at birth permanently dictates the language that must be used to describe a person, irrespective of legislative departures from this stance. They assert that s 5 of the SDA, describing sex discrimination, precludes Ms Tickle bringing a case relying upon s 5B, describing gender identity discrimination, an argument to which I will return.
Doing the best that I can with the pleadings, given the deficiencies identified above, Ms Tickle alleges that:
(a)a condition was imposed by Giggle, on the instruction, or at the will, of Ms Grover – that is, she primarily makes a claim of indirect discrimination by the imposition of a condition;
(b)the condition was that, to be allowed ordinary access to the Giggle App, a user had to be a cisgendered female, or be determined as having cisgendered female physical characteristics by Ms Grover on a review of the selfie photograph provided by a prospective App user during the process of applying to use the Giggle App – this aspect of Ms Grover reviewing photographs at the registration stage, as opposed to a later review of the AI approvals, is not supported by the evidence;
(c)in breach of s 22 of the SDA, Giggle and/or Ms Grover discriminated against Ms Tickle on the basis of her gender identity by imposing that condition, excluding her from using and assessing the Giggle App which was otherwise available to cisgender women and by not responding to her requests for access;
(d)by the imposed condition, Ms Tickle was treated less favourably than cisgender women because she is a transgender woman – noting that this very pleading seems inherently not just a claim of indirect discrimination, but abandoning a claim of direct discrimination, and also noting that it has to be one or the other (or neither), but cannot be both at the same time as they are mutually exclusive: see Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; 256 FCR 247 at [14]-[16] (Bromberg J, Griffiths and Bromwich JJ agreeing on this point), and the authorities there cited;
(e)imposing that condition constituted a breach of the prohibition of discrimination on the ground of gender identity in s 22 of the SDA, as the condition disadvantaged transgender women because they are not be able to gain ordinary access to the Giggle App and are vulnerable to disparaging conclusions and exclusion based on their appearance;
(f)unlike transgender women, cisgender women would not have their access to the Giggle App restricted, or their claim to be a woman questioned on the basis of their physical appearance by Giggle and/or Ms Grover, and either or both of them would have engaged with cisgender women and responded to their queries regarding exclusion from the Giggle App – again, apparently not advancing a claim of direct discrimination.
Ms Tickle points to two requirements that make up the imposed condition she alleges gave rise to indirect discrimination: the requirement that Giggle App users be cisgender women, and the requirement that they appear, on examination of their photograph, to be cisgender women. The difficulty for the first requirement in the indirect discrimination claim is twofold:
(a)it more properly relates to a direct discrimination claim, requiring proof of both the existence and application of a policy of excluding transgender women; and
(b)more importantly, it does not engage with how she was actually removed from being able to use the Giggle App, which was on the examination of her selfie photograph only after she had been granted access.
Neither difficulty was averted to by the respondents. That leaves the second requirement, being the true thrust of Ms Tickle’s indirect discrimination case, being that the respondents imposed a condition on users, on inspection of their photos by Ms Grover, that they appeared to be cisgender women.
The respondents’ substantive case, drawn more from their submissions than their pleading which is largely an exercise in blanket denial, is that Ms Tickle was granted ordinary access to the Giggle App via the AI assessment process, and that she was removed from the Giggle App because she was an adult human male, the respondents rejecting altogether the use of the word woman to describe Ms Tickle. All of Ms Tickle’s allegations summarised above are flatly denied in that context. Importantly, the respondents deny that they were aware of Ms Tickle’s gender identity at the time she was removed from the Giggle App. As will be seen, this would be capable of being a complete answer to Ms Tickle’s case of direct discrimination, but does not address Ms Tickle’s case of indirect discrimination. To the contrary, as advanced by their pleaded defence and the way in which they ran their case, they have tended to help Ms Tickle to establish indirect discrimination.
It is apparent that a key dispute is not one of what has taken place, except on the periphery, but rather one of characterisation, with the respondents essentially taking issue with the very concept of gender identity. They appear to contend that a claim of gender identity discrimination can be answered by asserting that sex discrimination occurred, and that the kind of sex discrimination they engaged in is a special measures exception under s 7D of the SDA. That is manifested in part by the respondents’ constitutional challenge to the validity of s 5B (really a challenge to the validity of s 22) as being beyond the legislative power of the Commonwealth, and in part by the interpretation they give to the operation of ss 5 and 5B of the SDA. That challenge, addressed below, is in part a reflection of the respondents having no real answer to the case of indirect discrimination on the undisputed and proven facts.
The parties’ competing arguments as to the interpretation of ss 5 and 5B, as put in relation to the respondents’ objection to competency, were summarised in Tickle v Giggle No 1 at [15]-[17], and noted at [18] to be irreconcilable:
[17] The applicant’s response is to agree that for the purposes of s 5 of the SD Act, a person’s sex is that of a man or a woman, and it is for that reason that the case is not framed by reference to s 5, noting that there is no barrier to a transgender woman being a woman for the purposes of sex discrimination. Rather, the applicant argues, the case alleges gender discrimination on the basis that the applicant is a transgender woman, not a cisgender woman. The case is instead brought under s 5B because the condition complained about is that it has allowed a transgender woman to be treated less favourably than a cisgender woman. The applicant alleges being removed from the App upon the basis of gender identity as a transgender woman, which does not, on that case, in any way pertain to the treatment of a man.
[18] The difference between the applicant’s case and the respondents’ case is stark and wholly irreconcilable. One will ultimately be found to be right, and the other wrong. This is not the point at which that determination is to be made unless the applicant’s case is manifestly untenable. The arguments for the respondents do not go so far as to convince me that is so, largely because the SD Act deliberately draws a distinction between sex discrimination and gender discrimination, for which the metes and bounds of the latter have not been tested. Nor can they be appropriately tested in the course of a relatively short interlocutory dispute.
The respondents’ position on that issue was put more cogently and coherently at that interlocutory stage than at trial. Given that deficiency, I presume in their favour that their position remained unchanged in relation to the substantive hearing in this matter. They contend that Ms Tickle’s case as pleaded, while purporting to engage the gender identity discrimination jurisdiction in s 5B of the SDA, is really directed to the definition of sex discrimination in s 5, and that the now amended statement of claim conflates sex and gender.
The respondents’ position remains, as best as I was able to determine given the way in which it was presented, which failed to substantially engage with the real legal issues and facts in this case, that sex refers only to biological features which produce an immutable and binary position of man or woman, while gender identity is directed only to a person’s individual identity as characterised by how a person signals their gender to others, referring to behavioural features, psychology and society. I similarly presume that Ms Tickle maintains her agreement with an aspect of that stance, as articulated in her submissions on the respondents’ interlocutory notice of objection to competency (which was itself incompetent), being that, for the purposes of s 5 of the SDA, a person’s sex is that of a man or a woman. It is for that reason that her case is not framed by reference to s 5, as her sex is now that of a woman. In the same submissions, she noted that there is no barrier to a transgender woman being a woman for the purposes of sex discrimination claims (a point that seems to be correct, but does not require adjudication in these reasons).
Ms Tickle’s position remains that she alleges gender identity discrimination on the specific basis that she is a transgender woman, and thus a woman. Her case is brought relying upon s 5B of the SDA, not s 5, because the discrimination complained of resulted in her, as a transgender woman, being treated less favourably than a cisgender woman. She alleges that being removed from the Giggle App on the basis of her gender identity as a transgender woman does not in any way pertain to the treatment of a man, which is the concern of s 5. It is therefore necessarily no part of her case that she was discriminated against as or compared to a man, a point of importance when it comes to the role of CEDAW in supporting the gender identity discrimination provisions in the way that she seeks to rely upon them, via the external affairs power in s 51(xxix) of the Constitution.
On the proper construction of s 5, the Commissioner submits, and I accept, the following propositions grounded in logic and long-standing authority. First, sex is not confined to being a biological concept referring to whether a person at birth had male or female physical traits, nor confined to being a binary concept, limited to the male or female sex, but rather takes a broader ordinary meaning, informed by its use, including in State and Territory legislation.
Secondly, and accordingly, sex can refer to a person being male, female, or another non-binary status and also encompasses the idea that a person’s sex can be changed, citing Secretary, Department of Social Security v SRA(1993) 43 FCR 299 at 304-305 (Black CJ), 325 (Lockhart J), and 328 (Heerey J, agreeing with Black CJ and Lockhart J); noting that SRA was cited with approval by the Full Court of the Family Court in Attorney-General (Cth) v Kevin and Jennifer [2003] FamCA 94; 172 FLR 300 at [211]-[224], [374]-[375]; and referring also to AB v Registrar of BDM at [4] (Black CJ, dissenting, though not on this point).
Thirdly, for the purposes of the SDA, the determination of the sex of a person may take into account a range of factors, including biological and physical characteristics, legal recognition and how they present themselves and are recognised socially.
Fourthly, although the relevant portion of s 5 of the SDA was not altered by the 2013 SDA Amendment, it must be read in context of the changes that were made: Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453, 463 (Brennan CJ, Dawson and Toohey JJ), 479 (McHugh and Gummow JJ); see also the discussion in Thomas Prince and Perry Herzfeld, Interpretation (Thomson Reuters, 2nd ed, 2020) at 296 [11.60] and [11.70]. That is, the amended Act must be treated as a whole, with the text and provisions added and the text and provisions removed being able to have an effect on the meaning of the provisions that have not changed.
This accords with principle, noted by all five High Court justices in Commissioner of Stamps as being the modern approach almost 30 years ago. At the federal level this principle was also legislatively expressed in a declaratory way by s 15 of the Acts Interpretation Act 1901 (Cth), noting s 15 was repealed in 2011, and is now s 11B(1). These changes made by the 2013 SDA Amendment do not require the Court to resort to inference or difficult points of construction. The changes were overt and deliberate. They included not just the introduction of the gender identity discrimination provisions, but also the change of all references to “the opposite sex” to “a different sex” and the repeal of the definitions of “man” and “woman” (which had referred to members of the male and female sex, respectively). Those amendments all point forcefully to an understanding of sex, as it is deployed in the SDA, that is changeable and not necessarily binary, contrary to the respondents’ submissions.
That conclusion is fortified by the 2013 SDA Amendment’s Explanatory Memorandum, which emphasises:
These definitions are repealed in order to ensure that ‘man’ and ‘woman’ are not interpreted so narrowly as to exclude, for example, a transgender woman from accessing protections from discrimination on the basis of other attributes contained in the SDA.
Those observations were not merely aspirational, but accurately reflect the changes to the SDA that were made and therefore supports the interpretation that the Commissioner contends for: cf R v JS [2007] NSWCCA 272; 230 FLR 276 at [143]-[144].
I also accept the Commissioner’s submission in substance to the effect that I do not need to determine the metes and bounds of the meaning of sex in these reasons. I need go no further than accept, as I do, that it is legally sufficient that Ms Tickle is recorded as female on her updated Queensland birth certificate for her to be, at law, of the female sex. This is in accordance with the Queensland provisions that were in place at the time of the alleged discrimination, being in substance the same in all the other States and the two Territories, with certain differences that do not presently need to be considered (such as New South Wales being the only jurisdiction that still requires sexual reassignment surgery as a requirement to change a person’s registered sex): see s 24(4) of the Qld BDM Registration Act. This legislation in Queensland, mirrored in like legislation nationwide, reinforces the view already established by the authorities cited above of SRA, Kevin and Jennifer and AB v Registrar of BDM, that in its contemporary ordinary meaning, sex is changeable.
The concept of sex has broadened further over the 30 years since SRA, 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 construction of s 5 proposed by the respondents is fundamentally at odds with the text, broader context and purpose of the SDA with the gender identity discrimination provisions added and the other changes made. The respondents’ construction of s 5 cannot be accepted. The respondents’ contention that Ms Tickle was discriminated against as a man misunderstands the concept of sex in s 5. I therefore reject the argument that her case is incorrectly pleaded as one of gender identity discrimination. I further consider the construction of s 5B later in these reasons, at Part 3(b).
PART 3: INTERPREATION OF KEY PROVISIONS OF THE SDA
(a) History of amendments to the SDA
Given their relevance to several questions that arise in this judgment, it is necessary to set out a brief history of certain key amendments to the SDA, being relevant to the interpretation and application of the key provisions summarised or reproduced in Part 2(c) of these reasons above.
The SDA was enacted in 1984, the year after Australia ratified CEDAW. At the time, the SDA prohibited discrimination on only three grounds: sex, marital status and pregnancy. Despite amendments, the SDA has retained its basic structure. Key among them, Pt I contained and still contains the operative definitions of terms used throughout the Act, including discrimination on the grounds of sex, marital status and pregnancy; and Pt II contained, and still contains, prohibitions of those forms of discrimination, as well as certain exceptions to their effect.
As noted above, s 4 used to contain a number of definitions of key terms that were repealed with the introduction of the gender identity discrimination provisions, including the removal of the following definitions of the words man and woman:
“man” means a member of the male sex irrespective of age;
“woman” means a member of the female sex irrespective of age.
The word sex was, and remains, undefined in the SDA.
Section 9(4) originally provided that certain prescribed provisions of Div 1, 2 and 3 of Pt II were to be given effect as provided by the other provisions in s 9. Section 22 is among the prescribed provisions. At the time of enactment, s 9(10), which referred to the external affairs power, provided that:
if the Convention [CEDAW] is in force in relation to Australia, the prescribed provisions of Part II, and the provisions of Division 3 of Part II, have effect in relation to discrimination against women, to the extent that the provisions give effect to the Convention [CEDAW].
In 2011, amendments were made to section 9 to provide that the Act had a wider scope of constitutional support: Sex and Age Discrimination Legislation Amendment Act 2011 (Cth). This included expanding the number of international instruments referred to in s 9(10). Section 9(10) of the SDA now provides that the prescribed provisions have effect to the extent that they “give effect to a relevant international instrument”. Section 4 defines “relevant international instruments” as several international instruments to which Australia is party, including CEDAW and the ICCPR. The combined effect of sub-ss 9(4) and (10) is that s 22 will be given effect to the extent that it implements Australia’s obligations under relevant international instruments: AB v Registrar of BDM at [96] (Kenny J, Gyles J agreeing).
The 2013 SDA Amendment made several further changes to the SDA, expanding the kinds of prohibited discrimination to include discrimination on the grounds of sexual orientation, intersex status and, relevantly to the present proceeding, gender identity. These amendments inserted definitions of these new grounds of prohibited discrimination, and inserted references to those forms of discrimination in the prohibition provisions in Part II of the Act. The word “gender” was not defined, but a definition of “gender identity” was inserted into s 4 (excerpted at [32] above). Section 3 of the SDA was also amended to add these forms of prohibited discrimination to the list of kinds of discrimination whose elimination is an object of the SDA: s 3(b).
As already noted, this package of amendments removed the definitions of man and woman from section 4, in order to better support the purpose of the gender identity discrimination provisions: see above at [59].
Along with those amendments, references to the opposite sex were also replaced with references to a different sex. The Explanatory Memorandum notes that sex is not a binary concept, and that the new terminology was consistent with the protection of gender identity and intersex status, and so recognises that a person may be, or identify as, neither male nor female.
(b) Construction of gender identity and s 5B
As noted above, Ms Tickle treats it as straightforward that the term gender identity in the SDA can refer to a person’s transgender identity and, accordingly, s 5B can refer to discrimination on the ground of being transgender. Gender identity is identified broadly in s 4, as encompassing a person’s gender-related identity, appearance or mannerisms or other gender-related characteristics, with or without regard to the person’s designated sex at birth. That definition is plainly capable of referring to a person’s transgender identity, which refers to the position where a person’s current gender differs from their assigned sex at birth. That conclusion is fortified by the Explanatory Memorandum to the 2013 SDA Amendment Bill at [12], which clarifies that the definition is intended to apply to transsexual and transgender persons, and such express language was not used only to ensure it was not read in a limited way. The corollary to that is that gender identity can also refer to a person’s status as cisgender, which is relevant in identifying a comparator with a different gender identity for the purposes of indirect discrimination as described in s 5B(2). The definition appears broad enough to encompass other kinds and aspects of gender identification, though it is not necessary to consider that issue further in these reasons.
The respondents’ arguments barely engaged with the construction of s 5B, insisting that direct discrimination had occurred, not on a proscribed basis, but rather on the basis of Ms Tickle’s sex, which they consider to be synonymous with her assigned sex at birth. That is a defence akin to claiming, as the Commissioner put it in general argument, rather than this case specifically:
I wasn’t discriminating against that person on the basis of their gender identity. I discriminated against them on the basis of their biological conception.
As already outlined, the respondent’s contention that Ms Tickle’s claim was properly one of sex discrimination under s 5 misunderstands the meaning of the word “sex” in the SDA, and must be rejected. The gender identity discrimination provisions cannot be evaded by creating false distinctions that are not supported by any of the terms of the SDA, properly understood.
The respondents’ argument is contrary to the express terms of s 5B as well. The words by reason of in s 5B(1) point to the requirement for a causal connection between a person’s gender identity, or a characteristic that generally appertains or is imputed to persons of that gender identity, and the less favourable treatment by the alleged discriminator: Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 at 322 (Lockhart J). It is not a “but for” test as this would be to improperly focus on the consequences for the complainant, rather than the “real reason” for the alleged discriminator’s conduct: Purvis v New South Wales [2003] HCA 62; 217 CLR 92 at [166] (McHugh and Kirby JJ).Identifying whether the treatment occurred by reason of gender identity requires an examination of the relevant circumstances, but there is no requirement for a specific kind of intention or motive: Mt Isa Mines at 322. As Gummow, Hayne and Heydon JJ noted in Purvis in part of [236]:
the central question will always be — why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of”.
It is implicit in s 5B(1) that the discriminator actually be aware of a person’s gender identity, or the characteristic that generally appertains or is imputed to persons of the same gender identity. But that awareness is different from a requirement that a person have some additional belief about the legitimacy of that gender identity. In short, if it were established that the respondents had been aware of Ms Tickle’s gender identity, but dismissed its legitimacy and for that reason excluded her from the Giggle App, her case of direct discrimination would likely have succeeded.
I should also note that Ms Tickle’s direct discrimination case is pleaded as discrimination on the basis of her gender identity, not a characteristic imputed or appertaining to it. It follows that it is therefore necessary for her to establish that the respondents had knowledge of her gender identity.
Less attention was paid to s 5B(2) by both sides, despite it being the real thrust of Ms Tickle’s case. Section 5B(2) provides that indirect gender identity discrimination involves the imposition of a condition, practice or requirement that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the aggrieved person. The provision is largely directed to kinds of discrimination that are facially neutral, but have a discriminatory effect, intended or otherwise. It requires identification of a comparator group by which the disadvantage of persons who share a gender identity with the aggrieved person can be compared. In this case, the comparator is self-evident: cisgender women. That enables the treatment of transgender women to be compared to the treatment of cisgender women by the application of the imposed condition as to appearance.
(c) The special measures exception to discrimination
Paragraph 1 of Art 4 of CEDAW provides:
Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.
Section 7D is the enactment of this part of CEDAW in 1995 as domestic law and, at the time it was inserted into the SDA, CEDAW was the only international instrument on which that Act relied as a source of Commonwealth legislative support. As such, construction of Art 4 of CEDAW was influential in relation to the construction of s 7D: see Jacomb v Australian Municipal Administrative Clerical and Services Union [2004] FCA 1250; 140 FCR 149 at [40]-[44]. Section 7D replaced the previous exception from discrimination created by s 33 for action taken to ensure “equal opportunities” for women, pregnant persons and people of a particular marital status, aligning the SDA’s language more closely to that of Art 4.
While the SDA now relies upon a broader suite of international instruments, that source remains important for interpretive purposes, even if CEDAW itself is not, or cannot be, relied upon to support the gender identity discrimination provisions in this case due to the nature of the discrimination Ms Tickle alleges (see findings at Part 5(a)(i) below). The point of the special measures exception is to achieve not just the appearance of equality by treating people in the same way despite their lack of real equality in fact, but substantive equality to address underlying disparities. As Crennan J pointed out in Jacomb, at [44]:
A “special measure” as referred to in s 7D, and as construed by reference not only to the ordinary meaning of words repeated from the Convention [CEDAW], but also by reference to the context, object and purpose of the Convention [CEDAW] is one which has as at least one of its purposes, achieving genuine equality between men and women. The phrase “special measure” is wide enough to include, what is known as, affirmative action. A special measure may on the face of it be discriminatory but to the extent that it has, as one of its purposes, overcoming discrimination, it is to be characterised as non-discriminatory. …
It follows from the express text of s 7D(1), that to be a special measure, the conduct in question must be done for the purpose of achieving substantial equality, or in the language of paragraph 1 of Art 4 of CEDAW, accelerating de facto equality; that is, equality in fact.
The respondents rely upon the very existence of the Giggle App as a special measure for the purpose of achieving substantive equality between men and women. That may well have been successful if a cisgender man had claimed s 5 sex discrimination by reason of being excluded from using that App, and the special measures exception did apply. But that is not the present situation. The respondents contend that a special measure will not amount to discrimination if it advances any of the other provisions in the nine paragraphs to s 7D(1), corresponding to the eight provisions describing different types of what would otherwise be discrimination listed in s 7D(2), being ss 5, 5A, 5B, 5C, 6, 7, 7AA and 7A. That is, the respondents contend that a special measure done for the purpose of achieving substantive equality between men and women will avoid, by operation of s 7D(2), being gender identity discrimination for the purposes of s 5B.
That contention is plainly untenable. It is obvious and logical to read s 7D(1) and 7D(2) together, so that a special measure falling within s 7D(1)(a) (discrimination between men and women) does not constitute discrimination only as described in s 5 (sex discrimination). Any other interpretation would be unworkable and nonsensical. It simply cannot be that a special measure of advancing substantive equality between men and women provides any shield from gender identity discrimination, any more than it would provide a shield against discrimination on any of the other grounds listed in s 7D(2). The respondents’ contention must fail.
PART 4: EVIDENCE AND FACTUAL CONCLUSIONS
(a) Ms Tickle
Ms Tickle identifies, and is legally recognised, as a woman. She was male sex at birth, and since about June 2017 she has lived as a woman, which has been a gradual process of transitioning her gender including social, medical and legal components. She began to use the name Roxy Tickle and told friends, family and her workplace of her transition. She began taking testosterone blockers, oestrogen and progesterone with the effect, as she described, of inducing a second puberty, and changing most parts of her body. She began to use female changing rooms and started playing in a local women’s hockey team. She began shopping from the women’s side of clothing stores and began a process of removing her facial hair.
On 19 May 2018, the Queensland Register of Births, Deaths and Marriages reissued her birth certificate with the name she now uses. In October 2019, she underwent gender affirming surgery, specifically a labioplasty and vaginoplasty. On 18 September 2020, her birth certificate was again reissued by the Queensland Register, now with a female sex marker.
In 2021, she downloaded and registered with the Giggle App. Her subsequent exclusion from it gave rise to this proceeding, as detailed earlier in these reasons.
(b) Ms Grover
Ms Grover is the founder and CEO of Giggle. In her affidavit evidence, Ms Grover states she conceived the idea for the Giggle App following trauma therapy for sexual abuse she had experienced, where the value of a strong support network was emphasised to her, and discussions with her parents, where they agreed a women’s only app would be valuable. Following further discussions about what such an app might entail, Ms Grover’s father began learning how to develop one. The development process is discussed further below.
It was Ms Grover’s father who found the AI system, Kairos, that offered a gender detection service by scanning photos of users (see further discussion at [101] below). In relation to the use of this AI in the Giggle App, Ms Grover stated in affidavit evidence:
I believed the discovery of Kairos meant the endeavour to create an App exclusively for women would be possible, at the time I believed it was a perfect way to do it. I did not believe the process Al facial recognition was controversial because it was the digital equivalent of what human beings do every day in perceiving sex, in particular male sex.
At this time, I had absolutely no idea that males could be considered to be women. I had not heard or read anything in the media or on social media about this issue. It had never occurred to me to check if men were considered women in law.
…
I did not consider the use of the word “gender” in the context of its “gender detection feature” to mean anything other than the detection of biological sex.
There is some inconsistency between this evidence and her account expressed in a blog post dated 19 July 2020 and titled “I Guess I’m a Terf Then – part II”, which was admitted into evidence as an annexure to Ms Tickle’s affidavit without objection. The term TERF in the title is an acronym for Trans Exclusionary Radical Feminist.In the blog, Ms Grover says that she had “fought for trans women’s rights during the early days of Giggle’s development” and that “When other [Giggle] team members were saying “NO!” I was saying, “Come on! It’s 2020! What are you thinking!?” In the blog post, she clarifies that she had intended “transitioned” transgender women to be granted access to the Giggle App, but not “self-ID only” transgender women. It is not entirely clear what is meant by both terms, though I infer “transitioned” transgender women to mean those who have undertaken sexual reassignment surgery, and “self-ID” transgender women to refer to those who have not.As Ms Grover describes in the blog post, in around June 2020 Giggle had adopted a view that no transgender women should be given access that Giggle App. Ms Grover’s evidence was open to challenge on the basis of that apparent inconsistency, but this did not take place.
Ms Grover’s views on sex and gender by the time of the trial were clear. In cross-examination, Ms Grover maintained her position that she views Ms Tickle as a biological male. In cross-examination, Ms Grover was asked whether she would accept as a woman a person who was assigned male at birth but has since transitioned genders medically, socially and legally by having gender reassignment surgery, dressing and making changes to their appearance that align with what is generally considered more female appearance, introducing and describing themselves as a woman and legally changing their birth certificate to have their sex recorded as female. Ms Grover confirmed that she would not view that person as a woman, and did not agree that in Australian society the natural and ordinary contemporary meaning of the word woman encompasses women who were assigned male at birth and have since transitioned legally to be women. 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”.
Ms Grover estimated that, in 2020, she would have had approximately 45,000 Twitter followers. On that platform, since the commencement of these proceedings, she has frequently described Ms Tickle as a man. She has also made posts stating that a man wants access to a female space, and given interviews to various news outlets that Ms Tickle is a man who wants access to the Giggle App which is a female space. This evidence was given in a matter-of-fact manner, and I am satisfied reflected a genuinely held position, rather than a view expressed only to offend Ms Tickle. That is important in light of authority on the absence of bona fides being relevant to the question of aggravated damages.
(c) Giggle and the Giggle App
Giggle was incorporated on 8 March 2019. As noted above, Ms Grover’s evidence is that the Giggle App was developed in 2019 with the help of her father. She further deposed to it being unofficially launched as a beta version in February 2020. Her evidence is that the Giggle App was originally conceived to be what she described as a women-only safe space on the internet, where women could search for roommates and employment opportunities, network, commune and engage in discussion. Its ambit was broadened during its initial development, with additional features added, which she described as allowing women to connect for emotional support, freelance work, general friendship and much more. In her affidavit evidence, Ms Grover described her vision for the Giggle App:
The vision was to create a little corner of the Internet where women from all over the world could have a refuge away from men. It could be for serious reasons, very superficial reasons, or very practical reasons. It would be a place without harassment, “mansplaining”, “dick pics”, stalking, and aggression, and other male patterned online behaviour. A place to vent and get advice from other women and find out what was happening in the real world in a female-only environment.
During development, I would often say, “I want to ensure that women can have access to a female support network in the palm of their hand whenever they need it” and that is essentially what we were creating. The vision was an online women’s refuge, so to speak. The vision was to have a positive impact on women’s daily online and social media experience.
In Ewin v Vergara, an extreme sexual harassment case brought under the SDA resulting in a large award of damages, the applicant sought aggravated damages, claiming that there was always going to be a component in a case like that in which general damages in the discretion would not sufficiently compensate “the horror, the dislocation, the disruption of life, the smell of flashbacks, the suicide attempts, the change in lifestyle”: at [677]. Bromberg J considered that aggravated damages were compensatory in nature and therefore available under s 46PO(4)(d), and that they could be available in circumstances where a respondent had increased the hurt to the applicant through their conduct of proceedings: at [678]. However, his Honour found that the grounds on which aggravated damages were sought were already reflected in general damages awarded, declining to award aggravated damages on the basis it would amount to double dipping for the applicant: at [678]. It follows that even serious conduct causing substantial hurt will not necessarily result in the awarding of aggravated damages.
In Wotton, Mortimer J (as the Chief Justice then was) considered whether aggravated damages were available where contraventions of s 9(1) of the Racial Discrimination Act 1957 (Cth) (RDA) had been made out. Her Honour noted that the weight of authority supported the view that awards of aggravated damages were available under s 46PO(4) as they serve a compensatory purpose (at [1737]), but dismissed the claim on bases that are not relevant to the current proceeding.
In Mortimer J’s discussion of the availability of aggravated damages in Wotton, her Honour noted that in some cases, the aggravation comes not from conduct directly associated with or following on from the contravening conduct, but from subsequent conduct that has the same effect: [1733]. In oral submissions in this proceeding, Ms Tickle relied on that statement (as quoted in Kaplan at [1762]) as authority for the general proposition that courts may award an applicant aggravated damages under s 46PO(4)(d) based on a respondent’s conduct subsequent to the filing of an AHRC complaint. I do not read that statement in Wotton as going that far. The rest of the paragraph goes on to cite, as examples of the proposition, Elliott v Nanda (see above) and Houda v New South Wales [2005] NSWSC 1053, both cases in which aggravated damages were awarded on the basis of the way in which the respondents conducted their part of the proceeding. I read the statement above as going no further than either authority cited. That conclusion is fortified by the fact that the present question of whether aggravated damages were available for conduct subsequent to the AHRC complaint was not live in Wotton.
In Hughes v Hill, the Full Court upheld an award of aggravated damages by the primary judge in a sexual harassment claim: at [59] (Perram J, Reeves and Collier JJ agreeing). Aggravated damages had been awarded to reflect the additional harm from threats made by the appellant to prevent the respondent complaining of sexual harassment, and the manner in which he conducted his defence at trial, which included blaming the respondent for his conduct due to her manner of dress and alleging she had been sexually abused as a child in order to blacken her name: at [54]-[64].
In Kaplan, Mortimer CJ affirmed the proposition that aggravated damages were available under s 46PO(4) where racial discrimination under s 9(1) of the RDA had been made out: at [1759]-[1789]. The proceeding involved findings that a state school principal had failed to take steps to address high levels of antisemitic bullying. Aggravated damages were awarded to one of the applicants, a former student, for the school principal’s failure to take steps to ensure his safety following an assault at a park, which was found to have increased the applicant’s hurt: at [1787]-[1789], citing New South Wales v Ibbett [2006] HCA 57; 229 CLR 638 at [35]. The cited portion of Ibbett, for completeness, is authority for no more than the orthodox proposition that, where the conduct giving rise to a tort increases the hurt to the subject of the tort, aggravated damages may be available. Kaplan does not state whether the principal’s failures were included in, or occurred after the lodging of, the complaint to the AHRC that gave rise to the proceeding.
Taylor involved successful claims by the applicant of sexual harassment and victimisation by the respondent, in contravention of ss 28B(2) and 94 of the SDA, as well as breach of the applicant’s employment contract. Katzmann J considered that it was well established that s 46PO(4) empowered the Court to make awards of aggravated damages, citing Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217 at 23-40 (Lockhart J) and 282 (French J), Ewin v Vergara and Hughes v Hill: at [526]. Her Honour noted that aggravated damages could be awarded to an applicant whose distress was made worse by the respondents’ conduct after the wrongful act or acts are committed, and where that conduct was improper, unjustifiable or lacking in bona fides: at [524]-[525], citing Triggell at 514. Like Mortimer J’s statement in Wotton, I read that statement as going no further than the authority cited, which provides only that an award of aggravated damages may be available for a respondent’s conduct in the proceeding (which has already been taken into account in relation to general damages). That is fortified by the nature of the award of aggravated damages in that proceeding, which was made on the basis of the respondent’s intimidatory and unjustified legal response to the applicant’s AHRC complaint, which included a suggestion that the applicant had manipulated and been flirtatious with the respondent: at [537]-[539].
What is really notable about all of the cases discussed above is that they are a far cry from what has happened to Ms Tickle. As considered below, no real attempt was made to marry the conduct relied upon for aggravated damages to the conduct relied upon to establish unlawful discrimination. In light of that, two further observations may be made about awards of aggravated damages in discrimination proceedings.
The first observation is that aggravated damages are not an unbounded path to seeking compensation for all harmful conduct by the respondents that falls outside the proceeding that has been brought, even if peripherally related to them. There must be some kind of nexus between the unlawful discrimination and the further hurt arising from that discrimination for which the aggravated damages further compensates. That nexus will be clearest where the further hurt arises from the way in which the unlawful discrimination occurred.
The nexus may arise because the actions of the respondent at trial, or perhaps in relation to the conduct of proceedings (see Taylor, especially at [538]-[539]), cause further harm to the applicant. In Taylor, which involved sexual harassment and victimisation claims brought under the SDA, aggravated damages were awarded on the basis of improper, unjustifiable and non-bona fide accusations by the respondent against the complainant in the course of the trial and in letters from the respondent’s solicitors to the complainant’s solicitors: at [525], [538]-[539]; see also the Full Court’s upholding of aggravated damages in similar circumstances in Hughes v Hill at [57]-[64]. Those accusations bear a clear link to the nature of the unlawful discrimination found.
The second observation is that it remains unclear how s 46PO(3), which requires unlawful discrimination alleged in applications to this Court to be the same as, or in substance the same as, those contained in the applicant’s original complaint to the AHRC, affects the award of damages founded on conduct that occurred subsequently to the filing of the AHRC complaint. As noted above, the Court’s power to award compensatory damages is statutory, created by s 46PO(4)(d) which allows an award of damages to be made only where the Court has found unlawful discrimination, as limited by s 46PO(3). None of the authorities in which aggravated damages have been awarded have addressed that question. Neither party provided submissions related to that question.
I draw from the authorities a number of minimum threshold requirements before the present claim for aggravated damages could be entertained. There would need to be:
(a)a compelling evidentiary basis for attributing the conduct said to give rise to the claim for aggravated damages to either or both respondents;
(b)a clear nexus between that conduct and this proceeding, which in turn must be tethered to the complaint to the AHRC which gives rise to this Court’s jurisdiction; and
(c)clear evidence of separate or additional harm caused by that conduct.
In this case, none of those three criteria are met, any one of which failure would be fatal to the claim for aggravated damages. Moreover, as detailed below, the paucity of the evidence chosen to be advanced by Ms Tickle ended up making this proceeding a poor vehicle to question the outer bounds of the Court’s power to award damages for subsequent conduct under s 46PO(4)(d). Each aspect of the claim for aggravated damages is addressed below.
(ii) Refusal to attend AHRC conciliation proceedings
No relevant part of Ms Tickle’s affidavit, reproduced at [217] above and which is the only evidence of loss or damage suffered by her, makes any reference to harm caused by the respondents’ refusal to attend AHRC conciliation proceedings. Proof of the necessary nexus has not even been attempted. There is no apparent basis on the evidence from which I can reasonably infer that the refusal caused any such loss or damage. Ms Tickle does not suggest in her evidence that such a basis exists. The respondents promptly indicated to the Commission that they were unwilling to participate in a conciliation proceeding, leading to the prompt institution of proceedings in the Federal Circuit Court by Ms Tickle.
These circumstances can readily be distinguished from the case in Elliott v Nanda, in which Moore J awarded damages on the basis of a respondent’s failure to appear before a hearing of the complaint before the HREOC. That case, however, arose from the respondent’s appeal of the HREOC’s adverse findings against him. The logic of the award of aggravated damages was that he had failed to take earlier legitimate steps to contest the applicant’s complaint, causing significant additional delay to the resolution of the complaint. Importantly, his Honour was satisfied that the delay had caused additional stress and mental anguish to the applicant: at [185]. The paucity of the evidence of loss means I am unable to make similar findings in the present case.
(iii) Refusal to reinstate Ms Tickle’s access to the Giggle App
In the alternative, the applicant submits that the refusal to reinstate Ms Tickle’s access after she filed her complaint grounds a claim of aggravated damages. However, no part of Ms Tickle’s affidavit, being the only evidence of loss or damage, mentions that as a basis for the loss or damage she suffered. There is no factual basis for a finding on the evidence. It was a bare submission without evidentiary support.
(iv) Subsequent comments by Ms Grover and her supporters
Unlike grounds (a) and (b), Ms Tickle does refer to the comments made by Ms Grover and her supporters as causing her loss or damage: see [39]-[41] of her affidavit reproduced at [217] above.
Messages and posts by supporters
Ms Tickle annexes three messages sent to her on Facebook by a person or persons other than the respondents, as well as several posts about her on X and Facebook by other persons. Many of these messages and posts are plainly offensive. They go much further than expressing, in civil terms, a view on the relationship between sex and gender. Many are personal attacks on Ms Tickle, questioning her motivations for transitioning gender, her appearance and speculating on her smell and mental stability. Some include cartoon images that mock her appearance and include offensive jokes about her transition. Almost all such messages and posts refer to her as a man.
In her affidavit, Ms Tickle asserts, without any details or particulars, or other foundation, the conclusion that Ms Grover’s public statements about herself and the case had led to and indirectly incited these communications. The difficulty with this bald assertion is that there is no evidence capable of proving a sufficient nexus exists between these posts and the conduct of the respondents. There is no evidence, for example, that the respondents called for such comments to be sent, or said or did anything specific to cause that to happen. The link between the offensive public comments and the conduct of the respondents is tenuous at best. Ms Tickle does not point to any clear basis on which such a link can be inferred. I am unable to accept that this causal link has been established by mere assertion.
In a separate annexure, Ms Tickle also refers to an Etsy shopfront operated by an unknown person that sold merchandise in support of Giggle, including products such as T-shirts and mugs printed with the slogan Team Giggle, with nothing more, let alone anything overtly offensive. Ms Grover gave evidence that the profits from these Team Giggle products went to the crowdfunding for the respondents’ legal team. The shopfront also included other products that, in the context of other products expressing support for Giggle, were likely referencing Ms Tickle or transgender people more generally. As they are offensive, I do not see any need to reproduce the messages or portrayals, as that may encourage further dissemination. One is worse than the rest in terms of offensiveness, but again I choose not to replicate it.
Ms Grover gave evidence that she was aware of the Team Giggle T-shirts that were sold, and the operator of the shopfront was a friend who had asked her permission to raise funds for the respondents’ legal fees through selling Team Giggle products. Ms Grover said that she had purchased that Team Giggle T-shirt but had not further perused the store. She had posted on Twitter encouraging her supporters to buy the Team Giggle T-shirt, including a link to that product. She had also re-posted a post promoting other kinds of Team Giggle merchandise, also apparently including a link to the Team Giggle T-shirt product page.
I do not accept that the products printed only with Team Giggle and nothing more caused further hurt to the applicant. Certainly, there is no evidence to that effect from Ms Tickle. Their existence could not indicate anything further than what was already known to the applicant, which was that supporters of the respondents existed. The more offensive item lacked a sufficient nexus with the respondents’ conduct. Ms Grover did not promote that product to her followers, and the suggestion that she is somehow responsible for it because she could have asked for the product to be taken down, perhaps with no effect, is a tenuous link. The other products in the shopfront might have been capable of causing further hurt to Ms Tickle, but again the selling of these products lacked a sufficient nexus with the conduct of the respondents. Ms Grover did not promote such products, and it was not established by evidence that she even knew of their existence.
Posts by Ms Grover
Ms Tickle also refers to further harm caused by Ms Grover’s comments about her and the proceeding, which are included as annexures to her affidavit. They can be grouped in two general categories: comments alleging the Ms Tickle harassed Ms Grover, and comments that Ms Tickle is a man. I note that she also annexed other posts by Ms Grover that discuss transgender women more generally with no reference to the present proceeding or Ms Tickle, but does not refer to these in the text of her affidavit. Given there is no evidence of any loss or damage that might have been caused by these posts, I do not discuss those further.
The first difficulty for this part of the claimed basis for aggravated damages is that the evidence of the loss or harm caused by Ms Grover’s personal statements is difficult to distinguish from that caused by posts and messages of her supporters. Given the findings made above, that is a significant challenge for an award of aggravated damages. It is useful to restate the portions relied upon in turn and in full, and then address each.
Part of [39] of Ms Tickle’s affidavit states:
Ms Grover’s online posts reach large domestic and international audiences, which has led to the scale of online hate towards me being enormous. This has consumed my life outside of my work and sport, which has led to me experiencing constant anxiety and occasional suicidal thoughts.
In the second sentence of [39], the word “This” must be read as referring to the scale of online hate, rather than Ms Grover’s posts, as it refers to a singular object rather than a plural one. I find this portion of Ms Tickle’s evidence to then be referring to the harm done by the posts made by persons other than Ms Grover, and therefore incapable of founding an award of damages.
Part of [41] of Ms Tickle’s affidavit states:
Ms Grover’s actions and the online hate I have received from her supporters, who are actively working towards stopping me from living as a woman, compounds my extant anxiety.
In [41], the asserted cause of the compounding of Ms Tickle’s extant anxiety is both Ms Grover’s actions and those of persons Ms Tickle believes to be Ms Grover’s supporters. It is not clear whether this refers to the decision to remove Ms Tickle from the Giggle App, the subsequent posts or her legal response to Ms Tickle’s AHRC complaint. It is impossible to identify the asserted cause of that harm. In any case, I find this portion of Ms Tickle’s evidence insufficient to establish loss or damage, as it fails to indicate a baseline of her existing anxiety on which the harm done by the respondents’ conduct could be measured.
The following sentence at [39] of Ms Tickle’s affidavit is therefore the only evidence of the loss or damage caused by Ms Grover’s statements to which I can afford any weight:
Ms Grover’s public statements about me and this case have been distressing, demoralising, embarrassing, draining and hurtful.
This brings us to the second difficulty for this basis: although the statements by Ms Grover that Ms Tickle is not a woman were hurtful, they were made bona fide. As has been made evident in the conduct of these proceedings, what the word “woman” means is deeply contested, and there must be scope in which persons can put forward an argument, both in proceedings and in their public discussion of them, where it is genuinely held and a legitimate part of their case. That is to be contrasted with the requirement set out in Triggell at 514, and accepted as applicable for awards of aggravated damages made under s 46OP(4)(d) based on subsequent conduct by respondents in relation to proceedings.
The meaning of “woman”, and whether the applicant can be regarded as one, was a central plank of the respondents’ case. Ms Grover is apparently deeply committed to her beliefs on this subject. Although that position was not vindicated in these findings, it would be an overstep by the Court in this context to award aggravated damages on the basis of comments about such beliefs, even though I accept Ms Tickle’s evidence as to their effect on her.
These comments can be distinguished from allegations made by Ms Grover that Ms Tickle had harassed her, which Ms Grover had alluded to in Twitter posts and in an interview published by the Weekend Australian Magazine. Ms Grover also accepted in oral evidence that she had stated in other interviews that she had been harassed by the applicant and that she was afraid of her, although these statements were not referred to in Ms Tickle’s affidavit. These statements were misleading to the extent to which they suggested that Ms Grover could really have no idea how Ms Tickle had received her mobile phone number. She had in fact provided it to Ms Tickle in an email exchange. Such an accusation was not a part of the respondents’ case (and it would have been improper if it had been), and I would find it very difficult to consider these statements bona fide, given Ms Grover must have been aware that her mobile phone number was included in her email signature even if she had forgotten the specifics of her email exchange with Ms Tickle at the time she made the statements in question. Ms Grover did not resile from those accusations in cross-examination, insisting that she did not know exactly how Ms Tickle had gotten her number. That was disingenuous.
These comments however, while hurtful and perhaps even defamatory of Ms Tickle to a limited degree, lacked a sufficient nexus with the unlawful discrimination found. They were in the nature of an attack on Ms Tickle’s character, rather than arising from or as an extension of the indirect discrimination I have found occurred.
(v) Conduct at trial
There is one aspect of the aggravated damages claim, adverted to in the award of damages, but not otherwise addressed so far, that is sufficiently tied to the conduct of the proceedings to evade the limitations in s 46PO(3), and not to be without some evidentiary support. In Ms Tickle’s closing submissions forceful submissions were made as to what was described by senior counsel as the persistent misgendering of Ms Tickle by the respondents, with their counsel referring in written and oral submissions to Ms Tickle with male pronouns, and by pleading that she was a man. Reference was also made to Ms Grover laughing, in the course of her oral evidence, at a demeaning caricature of Ms Tickle. Counsel submitted that this leads to the conclusion that the distress, embarrassment and hurt experienced by Ms Tickle, in being excluded from a women only space as a woman, has been amplified and compounded by this conduct.
As I have noted, the authorities establish that the conduct of a respondent at trial may establish the requisite nexus between the subsequent conduct and the applicant’s claim in order to give rise to award of aggravated damages. The respondents’ conduct in this case furthered the harm caused by the indirect discrimination found, namely in continuing to treat her as a man, though now with clear intent to do so.
The requirement remains, however, that such conduct not be bona fide: Trigell at 514; see discussion above at [237]-[238]. In this case, nothing indicates that the respondents are not expressing a genuine, if (as I accept) hurtful, belief that Ms Tickle is a man. No submissions were made by Ms Tickle’s counsel to the contrary. While some of the ways in which the respondents expressed this belief could have been avoided, and in that sense were gratuitous, I am not satisfied that on a preponderance of the authorities that that is enough to found an award of aggravated damages.
I consider that this conduct falls in the wide berth that Courts must afford defendants in prosecuting their cases. That is not unbounded. The Court is obliged to disallow questions to witnesses that are offensive, humiliating, harassing, belittling, insulting, otherwise inappropriate or with no basis other than stereotype: Evidence Act 1995 (Cth) s 41(1)(b), (c), (d). At the commencement of the trial, senior counsel for Ms Tickle had requested that the respondents not refer to her using male pronouns or titles in cross-examination. As it turned out, the respondents did not cross-examine her at all, but if they had, s 41(1) could have obliged me to constrain the ways in which they put questions to her.
That is not so for Ms Grover laughing in Court at the offensive caricature of Ms Tickle. Her explanation, that it was funny in the context of the courtroom, was obviously disingenuous. It was offensive and belittling, and had no legitimate place in the respondents prosecuting their case. Because I consider the harm that arose from this to be slight and difficult to quantify, however, I consider that this is best assessed as part of the overall award of damages, contributing to the amount to be awarded of $10,000. I should note that specific evidence of harm to applicants from respondents’ conduct at trial is generally not necessary for this kind of damages, if for no other reason than it would be an undue burden to an applicant to put on further evidence of harm at the trial’s end. In this case, I am willing to infer some limited degree of harm from the offensiveness of this confined aspect of Ms Grover’s conduct.
(vi) Conclusion as to aggravated damages
In this case, none of the identified criteria for an award of aggravated damages described above in this section are met, save as to a limited aspect of the conduct of the trial by the respondents. Any failure would be fatal to the claim for aggravated damages, because:
(a)Part of the conduct upon which the claim for aggravated damages arises is that of persons other than the respondents, and no causal relationship between the respondents’ conduct and this conduct was established.
(b)No sufficient nexus has been established between the conduct complained about and this proceeding. It is not enough that there is something that Ms Tickle finds offensive or hurtful. It has to be tied in some way to the gender identity discrimination case she has brought via the complaint to the AHRC, and specifically to the indirect discrimination case that succeeded. That case is about the imposition of a condition that had the effect of disadvantaging persons with a transgender woman gender identity, not to anti-transgender sentiment more generally. No real attempt was made to link the two, let alone to link them in a way that ties the conduct to the proceeding so that the damages sought in this proceeding have been shown to be aggravated in some way. It has been advanced in substance as a general claim for hurt feelings arising from non-acceptance of her status as a transgender woman.
(c)The evidence of Ms Tickle makes a global claim for damages and does not sufficiently isolate the effect of this conduct, nor make it at all clear how it has increased the hurt she has suffered. There is an insufficient substratum of facts established by evidence to demonstrate the aggravation of loss asserted.
(d) An apology
Ms Tickle also seeks a published written apology from the respondents. It is well-recognised that s 46PO(4)(b) empowers the Court to order respondents to make an apology: Wotton at [1552]; see also Kaplan at [1791]-[1794]. Section 23 of the Federal Court of Australia Act 1976 (Cth) provides an alternative basis for such orders: Wotton at [1552].
This Court has generally been reluctant to order apologies in discrimination cases where they would be unavoidably insincere: see Kaplan at [1796]-[1797]; Wotton at [1584] and the analysis of Mortimer J (as her Honour then was) of the authorities at [1553]-[1583]; Jones v Toben [2002] FCA 1150; 71 ALD 629 at [106]. That hesitation largely rests on the fact that the purpose of remedies under s 46PO(4) is to compensate the applicant: Kaplan at [1794]; Wotton at [1584]. An insincere apology would hold little if any benefit in rectifying the hurt to its recipient, while effectively punishing its maker by ordering them to say something they do not believe.
Courts have held apologies to be inappropriate where findings that discrimination has occurred are sufficient to recognise the harm done by the respondents: see Poniatowska v Hickinbotham [2009] FCA 680 at [324]-[325]. In Kaplan, for example, Mortimer CJ ordered an institutional apology by the State of Victoria for unlawful discrimination by a state school because it could be given sincerely and would be meaningful for the applicants: at [1796]. Her Honour declined, however, to order the principal of that school to apologise as such an apology would be insincere. The principal’s evidence had made clear that he did not accept failings on his part, and that he did not believe he had acted unlawfully. In the circumstances, the Court’s findings of fault were a sufficient vindication of the applicant’s rights: at [1797].
The applicant’s case for an apology to be ordered was sparse to say the least. It is plain that any apology given by Ms Grover, and any apology given by her on behalf of Giggle, would be through clenched teeth and utterly devoid of sincerity. She would be doing no more than saying she was sorry, but she would not in fact be sorry at all. She adheres to her sincerely held beliefs. It is not appropriate to order the giving of an apology in those circumstances and I therefore decline to do so.
(e) Reinstatement
The final relief sought is to order that Ms Tickle be given the same access to the Giggle App as is provided to other female users, upon Giggle’s usual terms. That app has been shut down, and Ms Grover has expressed a clear intention not to reinstate it unless it is legal to exclude transgender women. Accordingly, at present, Ms Tickle already has the same access as other female users, being none at all. If the Giggle App had been in operation, I could well have ordered reinstatement. In the circumstances, however, it is not appropriate to make an order that is incapable of being complied with. Accordingly, I decline to grant this kind of relief.
PART 7: CONCLUSION
Although the applicant did not include seeking costs in her pleadings, costs was argued at the interlocutory hearing last year, and was plainly in the contemplation of both sides since before 1 June 2023. In those circumstances there is no reason way costs should not follow the final outcome of this proceeding. I will order that the respondents pay the applicants costs, but with a cap of $50,000 in relation to the constitutional validity and statutory construction issues, imposed by order 3 made on 1 June 2023.
I certify that the preceding two hundred and eighty-three (283) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich. Associate:
Dated: 23 August 2024
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