The Full Court of the Federal Court has upheld the discrimination finding against a “women-only” socil media app called Giggle for Girls, doubling the damages awarded to $20,000 and ruling there was direct discrimination involved in refusing a trans woman membership.
Associate Professor Neil Foster provides a detailed assessment of the judgment on his Law and Religion Australia site. He believes that an appeal to the High Court will be successful.
The judgment is linked here: Giggle for Girls Pty Ltd v Tickle. The case revolved around interpreting the Sexual Discrimination Act, which had a section establishing gender identity as a protected class inserted in 2013.
Foster focuses on a section of the Act, 7D, that allows these gender identity provisions to be overridden for “special measures for the purpose of achieving substantive equality between: (a) men and women…”
He points to another Federal court case, “that running a women-only gym class was an example of this.” Was the court inconsistent? As the Other Cheek reads his analysis, Foster believes that in Tickle v Giggle, the court should have followed a plain reading of this provision.
The deeper issue is whether the definition of a “woman” was expanded with the amendments in the SDA to protect against gender identity discrimination. The joint judgment argues that the court needed to establish that Roxanne Tickle was “female” to decide that gender identity discrimination had occurred.
Foster quotes judges Abraham and Kennett: “It is necessary to confront the argument, put at the forefront of Giggle and Ms Grover’s submissions below, that Ms Tickle ‘is not a woman’ and ‘is a man’. If that argument is correct, it is difficult if not impossible to conclude that Ms Tickle was treated less favourably than a cisgender female because of her gender identity. That is because the differential treatment can just as readily be attributed to Ms Tickle’s sex.”
This judgment led to Opposition Leader Angus Taylor pledging to amend the sex Disrimination Act
Taylor’s promise is simple: “We will define biological sex in the Act. Male or female. The sex you are born. And we will protect single-sex spaces across Australian life.” However, defining biological sex will be complicated – this is not to argue against attempting it, but it will involve defining intersex and/or Differences of Sex Development (DSD) conditions.
Protecting single-sex spaces might also involve some complicated decisions – possibly providing some all-gender spaces in the same way some schools provide for trans students. (Otherwise, trans people face the prospect of never using a changeroom in community sport or a public toilet without outing themselves.)
A second question Christians may ask, “Will the judgment affect Churches and other religious institutions?” Foster addresses this, offering reassurance.
“To briefly come to the issues around law and religion here: many religious groups have a strong commitment to biological sex as a gift from God, which is not changeable. If asked to accept a biological male as a woman in their context, those that have clear teaching on the topic may be able to rely on s 37 of the SDA, which provides in part that: 37(1) Nothing in Division 1 or 2 affects:.. (d) any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
“Section 22, relating to provision of goods and services, is contained in Division 2. If the “doctrines, tenets or beliefs” of a religion require biology to be the determining factor in decisions about who is a man or a woman, religious groups should still be able to act in accordance with those beliefs. But they, like other members of the community who want to make decisions based on biological reality, would like to see the law correctly interpreted and can hope for a better outcome from an appeal in this case.”
Image: Roxanne Tickle and Sali Grover (who ran the Giggle for Girls app). Image Source: Out in Perth