The final judgement is in for Giggle v Tickle, the case centred on whether a women-only app Giggle for Girls could lawfully exclude a transgender woman, Roxanne Tickle.
The High Court has decided not to allow an appeal by Giggle for Girls Pty Ltd, against the decision of the Full Federal Court that it was unlawful for Sali Grover, the Giggle for Girls’ owner to exclude Roxanne Tickle from the app.
Professor Neil Foster gave his readers insight into the key issues of the case on his Law and Religion Australia website, pointing to a “special provisions” clause in the Sex Discrimination Act (SDA). “Under the SDA it is generally unlawful to treat someone detrimentally on the ground of one of the protected attributes under the Act, in comparison to the way someone else without that attribute would have been treated. By offering an app which only women could use, Grover would be discriminating against men and behaving unlawfully unless there was some defence applicable.
“In fact there are a number of defences available under the SDA. The Act does not aim to prioritise ending all situations where a protected characteristic is used as a ground of decision-making. In some clear cases, for example, sex is relevant to a decision, as where a female actor is to be cast playing Juliet in Romeo and Juliet (s 30(2)(b)), or where sporting events are involved and, ‘stamina or physique of competitors is relevant’ (s 42(1)).
“The ‘special measures’ provision in s 7D is designed to deal with situations where, even if formal equal treatment is given, underlying issues relating to inequality between men and women remain in practice. One such example I have noted previously is a women-only gym class (see Walker v Cormack). Grover’s female-only app seems to fit this criterion as well- a place where women can interact without being subject to comments and interference from men.”
High Court judges, Gageler CJ, Gordon, Edelman, Gleeson, Jagot, and Beech-Jones disagreed, upholding the Federal Court decision.
In their brief judgment they wrote: “There is no reason to doubt the Full Court’s construction of s 7D(1) and (2) of the Sex Discrimination Act 1984 (Cth). Any appeal dependent on the demonstration of error in the Full Court’s construction of those provisions has insufficient prospects of success to warrant a grant of special leave to appeal.”
Image: Roxanne Tickle and Sali Grover. Image Credit: Out in Perth.