Federal Court confirms transgender people protected under Sex Discrimination Act

Gender identity protected under Sex Discrimination Act; ‘sex’ more than physical characteristics

Federal Court confirms transgender people protected under Sex Discrimination Act

Roxanne Tickle is a transgender woman who was removed from the mobile app, Giggle for Girls (Giggle) which is an online communication app for women that does not allow men to join or use the app.

The CEO, Sally Grover, removed Tickle’s account on the basis that Grover considered her to be male upon review of her photograph.

Tickle lodged a discrimination claim against Giggle with the Federal Court on the basis of her gender identity.

In defending the claim, Giggle argued that:

  • Tickle was discriminated on the basis of her sex which they considered to be male as her ‘sex’ could not be changed.
  • Giggle was a ‘special measure’ to promote the substantive protection of women, which is an accepted form of lawful discrimination.

Indirect discrimination

The Federal Court found that Giggle engaged in indirect discrimination towards Tickle on the basis of her gender identity. Under the Sex Discrimination Act 1984 (Cth), indirect discrimination occurs when a person imposes or a requirement, condition, or practice which has or is likely to have the effect of disadvantaging persons who have the same identity as the aggrieved person (in this case, the same gender identity as Tickle).

It was found that Giggle imposed a condition that users were required to appear as a cisgendered female in order to be permitted access the app. This requirement had the effect of disadvantaging transgender women in comparison to cisgendered women.

The discrimination was not considered to be direct discrimination as direct discrimination required Grover to have actual knowledge that Tickle was a transgender woman and there was no evidence of this.

The Federal Court did not accept Giggle’s argument that there was discrimination on the basis of sex. The court confirmed that ‘sex’ takes a broader ordinary meaning as opposed to a biological concept referring to whether a person at birth has male or female physical traits. It accepted that a person’s sex could change and refers to a person being male, female or another non-binary status.

The definition of ‘sex’ takes into account a range of factors including biological and physical characteristics, legal recognition, and how they present themselves and are recognised socially. The court recognised Tickle’s sex as being female and therefore it could not be that she was discriminated on the basis of her sex as argued by Giggle.

Equality between men and women

It was also not accepted that the special measure exception applied. As Giggle argued that its purpose was to achieve substantive equality between men and women, the exception would only apply if it was discriminating against a male on the basis of sex. It did not apply in the present situation as Tickle is a transgendered woman.

Additionally, the Federal Court rejected Giggle’s argument that relevant provisions of the Act were unconstitutional.

The Federal Court ordered that Giggle pay Tickle compensation in the sum of $10,000 and pay her costs. Giggle is currently seeking to appeal the decision.

The decision confirms that the Act protects transgender people on the basis of their gender identity and provides clarification as to the definition of ‘sex’ in the Act. The case highlights that organisations should carefully consider whether their practices and conduct in relation to single sex spaces and services are lawful and reasonable, and whether an exception, exemption or special measure could apply. 

See Tickle v. Giggle for Girls Pty Ltd (No 2), [2024] FCA 960.

Skye Rose is a Practice Leader in the Corporate Advisory Team and heads the Workplace Relations, Discrimination, Safeguarding and Child Safety Teams at Moores in Melbourne. Samantha Guo is a Lawyer in the Corporate Advisory Team at Moores in Melbourne.