Today the Full Federal Court has upheld a decision that trans women have the right to be treated with dignity and respect and live free from discrimination.
The Full Federal Court unanimously found that Ms Grover and Giggle for Girls Pty Ltd engaged in unlawful direct discrimination against Ms Roxanne Tickle on the ground of her gender identity. All three judges changed the original finding of indirect discrimination to one of direct discrimination, meaning that Giggle and Ms Grover specifically treated Ms Tickle less favourably because of her gender identity.
The Court took Ms Grover’s personal conduct into account and doubled the damages to $20,000, including $8,000 for aggravated damages.
In their joint judgment, Abraham and Kennett JJ commented that some of Ms Grover’s “conduct was gratuitous, disrespectful and unnecessary to the conduct of her case.”
In the original Federal Court decision, Justice Bromwich had commented on the behaviour of Ms Grover, highlighting that she had laughed at an offensive caricature of Ms Tickle during the trial, and noting that “[Ms Grover’s] 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.”
In addition to damages payments, the Court ordered that Ms Grover and Giggle pay Ms Tickle’s legal costs up to an amount of $100,000 overall. The Court dismissed Ms Grover’s appeal in its entirety.
“The Full Federal Court has affirmed that all women, including women who are trans, are protected from discrimination, and that there are consequences for discriminatory conduct. This brings the law in line with community expectations that no person should be discriminated against because of who they are.” said Jackie Turner Director, Trans Justice Project.
“Over the past 4 years, Roxy has shown incredible courage standing up for the rights of trans and gender diverse people in the face of frankly, disturbing and fixated bullying and harassment. We’re so proud of Roxy’s bravery,” said Ms Turner.
“Today’s decision has applied the law and affirmed the right of all people to live free from discrimination, finding that Ms Grover and Giggle for Girls engaged in unlawful direct discrimination against Ms Tickle because she is trans. All Roxy wants is to live her life and be free to be who she is without discrimination, something that we all want and deserve to have in our community,” said Belinda Lowe, Director of Campaigns and Communication at Grata Fund.
“We welcome the decision of the Full Federal Court that has applied the law, finding that it is unlawful to discriminate against a woman because she is trans. The Trumpian weaponisation of the vulnerability of trans women for political gain is a distraction from the serious issues facing women, the women’s movement is focused on the real issues that affect all women such as domestic and family violence, the serious everyday impacts of the cost of living crisis on women and families, and global roll back on abortion rights,” said Ms Lowe.
“All women must be able to participate fully in community life and access the support they need. Women's legal services across Australia provide free legal support to women, including trans women, because we know that when any woman's rights are under attack, all of our rights are diminished. We welcome today's decision”, Elena Rosenman, Chair of Women’s Legal Australia.
Media contact: Belinda Lowe, 0428 805 696 or [email protected]
Summary of the decision
The Full Federal Court today unanimously found that Giggle and Ms Grover engaged in unlawful direct discrimination against Ms Tickle on the ground of her gender identity, contrary to section 22 of the Sex Discrimination Act 1984 (Cth) (SDA), when read with s 5B of the SDA. The Court dismissed Giggle and Ms Grover’s appeal in full, and upheld Ms Tickle’s cross-appeal.
The Court found that Giggle and Ms Grover directly discriminated against Ms Tickle, a transgender woman, both when they excluded her from the Giggle App on the basis of her gender-related appearance; and when they refused to restore her initial access. In doing so, the Court found that Giggle and Ms Grover treated Ms Tickle less favourably than a person designated female at birth seeking access to the Giggle App.
The Court ordered a higher amount of damages than at first instance, ordering Giggle and Ms Grover pay Ms Tickle $20,000, also taking into account aggravating conduct by Ms Grover.
The Court upheld the primary judge’s interpretation of the ‘special measures’ defence under s 7D of the SDA, and found that it did not apply in this case. Giggle and Ms Grover had argued that the Giggle App was a special measure designed to achieve substantive equality between men and women, and that this was a defence to discrimination on the ground of gender identity. The Court rejected this interpretation, with Abraham and Kennett JJ commenting that “a construction of s 7D in which a measure designed to overcome the substantive effects of one of the forms of discrimination addressed by the SDA receives an exemption from the prohibitions on every other form of discrimination is difficult to reconcile” with the SDA’s purpose.
The Court signalled that it will make a declaration that unlawful gender identity discrimination occurred in the terms sought by Ms Tickle’s cross-appeal. The Court also ordered that Giggle and Ms Grover pay Ms Tickle’s legal costs up to $50,000 for the appeal, and $50,000 for the cross-appeal.
Definitions
Direct discrimination: when someone is treated worse than someone else based on their gender identity.
Indirect discrimination: when a rule or condition is imposed that has the effect of discriminating against someone on the basis of their gender identity.
Ms Roxanne Tickles statement
I’m very pleased by the outcome of my case, and I hope that it assists trans and gender diverse people and their loved ones to heal. The court unanimously found that I was unlawfully, directly discriminated against. The ruling clearly reinforces what the Australian community stands for, that all women are protected from discrimination by law, trans women, cis women, lesbian women, queer women, straight women, First Nations women, women of colour, migrant women, women with disabilities, all women.
I brought my case to show trans people that you can be brave and that you can stand up for yourself. In the process, I surprised myself at just how brave I could be. Young Roxy would be surprised but overjoyed.
When I began my gender affirmation in 2017, I had no idea at that stage that a small minority of people who had never met me, would invest an incredible amount of their own precious time and effort into ridiculing, degrading, threatening and mocking me to try to make my life as miserable as they could.
I submitted my discrimination complaint against Giggle for Girls and its CEO, Ms Grover to the Australian Human Rights Commission in December 2021. Seeking justice for the discrimination has since stolen over 4 of my 8 years since I began my gender affirmation. Those years were intended to be the most joyful years of my life, a time for me to live my life and truly be who I am, but that joy was ripped from me.
There is so much hate and bile cast on trans and gender diverse people, simply because of who we are. Usually, by those who refuse to meet us or engage with us. Sometimes it's difficult to remember that most Australians are kind and believe in allowing everyone to be free to live their life in dignity and be free to be who they truly are.
The hate has not just affected me; it's hurt so many other trans and gender diverse people, a number of them my friends, and it is not what the Australian community stands for. For that small minority, the decision to choose hate over friendship and community has removed them from a place they would have been welcomed, and can still be welcomed. My trans friends are some of the kindest and most empathetic people I have ever met.
I now look forward to getting on with the rest of my life, in the community that we all know and love, one that embraces freedom and equality for all women.
Case background
Ms Roxanne Tickle has claimed alleged unlawful discrimination on the basis of gender identity under the Sex Discrimination Act 1984 (Cth) (SDA). Ms Tickle is a transgender woman living in New South Wales. She was assigned male at birth and has since undergone gender affirmation surgery. Her birth certificate has been amended to record her sex as female. The respondents, Giggle for Girls Pty Ltd and its CEO, Ms Sally Grover, operate Giggle, a social media app advertised as an app exclusively for women.
The Giggle app requires users to upload a ‘selfie’ as part of the registration process. The respondents then use a combination of AI and visual observation to make an assessment of each potential user’s sex before they are registered. Ms Grover has said publicly that she does not consider transgender women to be women and that they are not permitted to access the Giggle app.
In 2021, the applicant signed up for an account on Giggle, uploaded a selfie and was initially able to use the app. However, shortly after, her access to the app’s features was highly restricted. She attempted to resolve this issue with the respondents but the respondents continued to deny her access to the app. In April 2022, Ms Grover told The Australian that the applicant was manually removed from the Giggle app because “they are male”, based on a visual assessment of the applicant’s selfie.
In December 2021 Ms Tickle filed her complaint of discrimination on the ground of gender identity with the Australian Human Rights Commission. The complaint was terminated by the AHRC in April 2022 because Ms Grover refused to participate in the conciliation. Ms Tickle filed her discrimination matter in the Federal Court in December 2022.
In August 2024, the Federal Court found that Giggle for Girls women’s app and its owner, Ms Sally Grover indirectly discriminated against Ms Tickle by removing her from the app. Justice Bromwich found that Ms Tickle, as a trans woman, is protected against unlawful discrimination under the Sex Discrimination Act 1984 (Cth) (‘SDA’). Ms Tickle has the right to access services free from discrimination, the same as all women.
In October 2024 Ms Sally Grover and Giggle for Girls Pty Ltd appealed the judgment, including the court’s finding of gender identity discrimination to the Full Federal Court. Ms Roxanne Tickle filed a cross-appeal arguing the court incorrectly found that indirect discrimination occurred instead of direct discrimination, and therefore ordered an inappropriate and inadequate award of $10,000 in damages.