The Federal Court of Australia recently considered a case about whether a social media app for women and girls could lawfully exclude a person born male but identifying as a transgender woman.

Background

Giggle for Girls was a social media app created by Sally Grover to provide a safe space for women and girls to connect with each other without the presence of men. Anyone who wanted to use the app was required to upload a selfie as part of the registration process. An AI tool would verify whether the person seeking registration was eligible to join the app. If the AI tool confirmed the photograph appeared to be of a woman, user access was granted. From time to time Grover manually reviewed the selfies because the AI tool was set at a low tolerance not to exclude anyone unfairly. If, however, Grover thought the photograph was of a man, user access would be blocked.

Roxanne Tickle was born male but identified as a woman, undergoing sexual reassignment surgery in 2019. After this, Tickle’s birth certificate sex was changed to “female”. Tickle began using the app early in 2021 but stopped using it after failing to find anyone to connect with. Some months later Tickle decided to use the app again but found that access was denied. After Tickle messaged the app and Grover for help, Grover agreed to investigate why access had been stopped. After reviewing Tickle’s selfie, access was not restored and there was no further communication from Grover.

The claim

Tickle commenced proceedings against Giggle for Girls and Grover (the appellants) claiming discrimination based on gender identity. Tickle claimed the appellants’ treatment of her was contrary to section 22 of the Sex Discrimination Act (SDA) which provides:

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… gender identity…

(a)  By refusing to provide the other person with those goods or services or to make those facilities available to the other person…

Under the SDA 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(1) covers direct discrimination. It provides a person is discriminated against on the ground of 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 … the discriminator treats or would treat a person who has a different gender identity.

Section 5B(2) covers indirect discrimination and states:

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 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.

The defence

The appellants argued that the SDA authorised the app as a “special measure” which, in law, is not treated as discrimination.

Relevantly section 7D of the SDA provides that:

(1) 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 …

The appellants argued that the app was a special measure designed to achieve substantive equality between men and women. Accordingly, they maintained that Tickle was a man and had been excluded on this basis.

Case history

The appellants had originally argued that Tickle was a man and that any discrimination was therefore by reason of sex and not gender identity, and that this discrimination was justified as a special measure.

The primary court had found that the appellants had acted on the basis of Tickle’s gender-related characteristics and appearance, not on the basis of Tickle’s sex. It held that the appellants had indirectly discriminated against Tickle on the grounds of gender identity when they set a condition which required users to look like a woman, a condition which Tickle did not satisfy. It also held that the special measure exemption was not available.  

The appellants appealed the primary court’s decision. Tickle cross-appealed claiming direct rather than indirect discrimination.

Special measures

The appellants argued that provided a measure has a purpose of achieving substantive equality for one protected group, it cannot constitute discrimination against any other protected group. On this argument, if the app was intended to achieve substantive equality between men and women, refusing access to Tickle could not constitute discrimination on the basis of gender identity.

The court disagreed with the appellants for two reasons. First, the purpose of section 7D of the SDA is to recognise that measures legitimately seeking to solve the structural inequality of historically disadvantaged protected groups should not amount to discrimination. The court said that this purpose would be undermined if measures to promote equality for one group impaired a different group achieving substantive equality.

The second reason was that the court found the construction of section 7D of the SDA sets out Parliament’s intention that a special measure relates “only to the particular discrimination that the measure is designed to remedy – not all discriminatory conduct”.

According to the court’s analysis the list of nine purposes in section 7D(1) corresponds to the eight grounds of discrimination contained in the SDA (with one of the grounds split into two purposes). For example, the exemption for achieving substantive equality between men and women corresponds to the prohibition on discrimination on the ground of sex in section 5, the exemption for achieving substantive equality between people with different sexual orientations corresponds to the prohibition on discrimination on the ground of sexual orientation in section 5A, and the exemption for achieving substantive equality between people with different gender identities corresponds to the prohibition on discrimination on the ground of gender identity in section 5B.

The court said that if Parliament had intended that a special measure on one protected ground would not amount to discrimination on any grounds, it would not have needed to list all eight protected grounds in section 7D. This approach, which the court called a “distributive” interpretation, meant that a special measure based on sex could only exempt discrimination between men and women and not discrimination based on gender identity.

The court concluded that on this issue the primary judge was correct to find that the app was not a special measure under section 7D of the SDA.

Interpretation of direct discrimination

Clarifying the meaning of direct discrimination, the court found the appellants did not have to have actual knowledge of Tickle’s gender identity in order for Tickle to have been directly discriminated against. The court said unless gender identity is expressly disclosed, discriminators will often make judgements based on their impressions of a person’s gender. It was for this reason that Parliament expressly included outward gender-related characteristics, such as appearance and mannerisms, in the definition of gender identity.

In addition, the court noted that the SDA does not include an element of actual knowledge in the test for direct discrimination. If actual knowledge of the person’s gender identity were required that would undermine one of the objects of the SDA of eliminating discrimination on the ground of gender identity so far as is possible.

To establish direct discrimination the court also considered the language of section 5B(1) which requires the aggrieved person to establish they have been treated less favourably than a person of a different gender identity. In this case the court said that “cisgender women” were the appropriate gender identity group to compare Tickle’s treatment with. The court rejected the appellants’ submission that the appropriate comparator group is men because “comparison between a transgender woman and cisgender man in a case such as the present would, in effect, re-enact the discrimination and invalidate the gender identity and/or gender presentation of a transgender woman”.

The appellants directly discriminated against Tickle on two occasions

When the court considered the evidence of the appellants’ conduct against the test for direct discrimination the court found the appellants had directly discriminated on two occasions.

The court said Tickle was initially excluded from the app for not having cisgendered physical characteristics. The evidence established that the appellants had a policy of excluding men who identify as women because they do not accept they are in fact women. The court said the exclusion from the app was direct discrimination on the grounds of Tickle’s gender identity.

The court then found Tickle was also directly discriminated against when seeking read mission to the app some months later. Grover had decided not to restore Tickle’s access to the app based on her perception that Tickle had the appearance of a man, that is, “on the basis of a protected characteristic generally appertaining or imputed generally to a transgender woman”. This was direct discrimination.

Damages

Finally, the court also reconsidered Tickle’s entitlement to damages. The court found that the conduct of the appellants and the hurt they caused required an award of aggravated damages. The court referred to a “laughing incident” where Grover laughed in court at an “extremely tasteless” caricature of Tickle, as well as Grover repeatedly “misgendering” Tickle during the hearing. Grover also made public comments which implied Tickle was a predatory male. Gover’s conduct was said to be “gratuitous” and unnecessary for her case. Total damages in the amount of $20,000 were awarded, being $12,000 for general damages related to the finding of discrimination and $8,000 for aggravated damages related to Grover’s conduct.

Comment

The court acknowledged that there are other provisions, not relevant in this particular case, which permit what would otherwise be gender identity discrimination in other situations. For example, there is an exemption for services that by their nature can only be provided to members of one sex. There is also a provision justifying indirect discrimination if that is “reasonable in the circumstances”.

Nonetheless, this case has prompted significant discussion about how Australia’s discrimination laws apply in practice, with some calling for law reform. In her public comments, Grover has confirmed filing an application seeking special leave to appeal to the High Court of Australia.

Giggle for Girls Pty Ltd v Tickle [2026] FCAFC 64

Image: High Court of Australia