Tickle v Giggle

Tickle v Giggle
Court	Federal Court of Australia
Full case name	Roxanne Tickle v Giggle for Girls Pty Ltd
Decided	23 August 2024
Case history
Appealed to	High Court of Australia
Court membership
Judge sitting	Robert Bromwich

Tickle v Giggle is an Australian law case regarding the legality of the trans-exclusionary membership policies used on an app platform. ^{[1] [2]}

Background

In 2020, Sall Grover founded Giggle for Girls, a mobile app designed as a social networking platform for cisgender women. ^[3] The name, Giggle, is described as a collective noun for women, ^[4] with the app presented as catering only to cisgender women, offering a safe online space for them to connect and find support in various areas such as finding roommates, freelancing, emotional support, and activism. ^{[4] [5]} Grover has said she was driven to develop a digital platform for cisgender women by her desire to guard against the advances of predatory men, a view that was informed by her experience with misogyny and sexual violence. ^[6]

The app's membership policies restricted access to adults assigned female at birth. ^[6] To verify users' birth sex, it relied on technology developed by Kairos, a company that offers facial recognition software. ^{[6] [7]} The software was criticised by Giggle users for failing to identify women of colour as female. ^[7]

The app was particularly criticised for excluding transgender women. ^[8] In response to criticism, Grover said that the exclusion of trans women was intentional, began self-identifying as a trans-exclusionary radical feminist, ^[7] and referred to trans women as "males". ^[9]

By 2021, the app reportedly had 20,000 users from 88 countries. ^{[10] [11]}

Grover decided to shut down the app in July 2022. ^[12] She has alleged that transgender activists have sent numerous rape threats and death threats in relation to the app's membership policy. ^[13]

Case timeline

• January 2022: matter brought to the Australian Human Rights Commission (AHRC) by Roxanne Tickle, a transgender woman from New South Wales who was denied membership of the site. ^[14] AHRC initially offered conciliation between the parties, but those efforts were unsuccessful. ^[15]
• May 2022: matter filed in the Federal Circuit Court following the complaint. ^{[11] [16]}
• July 2022: case was, without explanation, dropped, as Tickle sought to discontinue all of the orders. ^{[17] [5]}
• June 2023: application made by Katherine Deves to dismiss the case was rejected. ^[18]
• December 2023: case reopened by Tickle. ^{[17] [19]} Tickle was granted $50,000 from Grata Fund, a not-for-profit legal fund associated with University of New South Wales, to cover costs associated with the case. ^[20]
• April 2024: hearing began before Justice Robert Bromwich with Giggle and Grover represented by Bridie Nolan. ^[21] The court was required to examine the application of the Australian government's 2013 amendments to the 1984 Sex Discrimination Act . ^[22] The amendments, which relate to gender identity, have not been tested in court prior to this case. The court's decision was expected to determine if the social networking app may be considered as a special measure to advance women's equality under the Sex Discrimination Act, where the exclusion of men is permitted under law. ^[23] The hearing concluded after several days of arguments. ^{[24] [25]}
  • The Australian Human Rights Commission (AHRC) participated in the legal case by sending representatives to the court, including Anna Cody, the Sex Discrimination Commissioner. ^[26] The commission's role in the case was extended as a 'friend of the court' ( amicus curiae ) to clarify the provisions in Australia's Sex Discrimination Act. ^[26] While the Commission sought earlier conciliation between the parties, it declined to offer submissions to the case. ^[15]
  • Reem Alsalem, the United Nations Special Rapporteur on Violence Against Women and Girls, was asked to provide input in the form of a position paper to the Australian Human Rights Commission. ^[27] Alsalem's paper discussed the definition of "woman" in international human rights treaties, particularly the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). ^[28] Alsalem argues that while CEDAW does not explicitly define "woman", it refers to individuals assigned female at birth and that sex and sex-based discrimination in that context is understood as a biological category. ^[28]
• August 2024: On 23 August 2024, Bromwich handed down his verdict, finding that Tickle had been indirectly discriminated against under the Sex Discrimination Act. The court ordered Grover to pay A$10,000 to Tickle in damages, plus legal costs. ^[29]
  • In discussing his reasoning, Bromwich refuted Grover's arguments that sex was unchangeable, finding "These arguments failed because the view propounded by the respondents conflicted with a long history of cases decided by courts going back over 30 years. Those... cases established that on its ordinary meaning sex is changeable". ^[29]
  • Regarding the treatment of Giggle as a "special measure", Bromwich found that "even if the Giggle App could have been considered a special measure to achieve equality between men and women, that would not have allowed the respondents to discriminate on the basis of gender identity, which is distinct from discrimination against women on the basis of sex under the SDA. The respondents' argument therefore conflicted both with longstanding law as to how sex should be understood in the SDA, and the gender identity provisions of the SDA".
  • Bromwich found that Grover had behaved in an "offensive and belittling way" towards Tickle whilst in court by laughing at a caricature of Tickle. ^[30]
  • Bromwich also refuted both the constitutional challenges raised by Grover. Grover contended that section 22 of the Sex Discrimination Act was outside of the scope of Commonwealth authority, and so discrimination based on gender identity was not actionable under the constitution. Bromwich found that "section 22 is supported by the Commonwealth's external affairs power, as an enactment of Article 26 of the International Covenant on Civil and Political Rights (1966)", specifically as it states "the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". Bromwich considered "other status" to encompass gender identity. ^[31]
  • The second constitutional challenge made by Grover was that there was "inconsistency between the Births, Deaths and Marriages Act 1994 (Qld) and the SDA". Bromwich found that there was no inconsistency, and that the "two statutes can and do operate harmoniously". ^[31]
  • Bromwich also stated in his judgement that Grover and her legal team had presented their case in a "disjointed and somewhat incoherent way". ^[30]
• October 2024: Grover launched an appeal against the judgement. ^[32]

References

1. Wyatt, Edie (2022)."Tickle vs. Giggle." Archived 2024-03-28 at the Wayback Machine The Spectator Australia. 4 July 2022. Accessed 28 March 2024.
2. Lever, Cindy (2022). "‘It’s been hell’: women-only app founder in gender row nightmare." The Australian. 9 July 2022. Accessed 28 March 2024.
3. "Sall Grover". Savage Minds. 1 December 2022. 0 hours 1 minutes 5 seconds.
4. Macpherson, Amber (2020)."Giggle app by Main Beach’s Sall Grover connects women across the world." Gold Coast Bulletin. 22 March 2020. Accessed 28 March 2024.
5. "Australiana: "I'll never stop fighting for women" - Sall Grover on Apple Podcasts". Apple Podcasts. 22 June 2023. From 0 hours 1 minute 45 seconds to 0 hours 1 minute 45 seconds to. Archived from the original on 2024-04-06. Retrieved 2024-04-06.
6. Scheuerman, M. K., Pape, M., & Hanna, A. (2021). Auto-essentialization: Gender in automated facial analysis as extended colonial project. Big Data & Society, 8(2), 20539517211053712.
7. Perrett, Connor. "A social media app just for 'females' intentionally excludes trans women — and some say its face-recognition AI discriminates against women of color, too". Business Insider. Archived from the original on 2024-03-29. Retrieved 2024-08-27.
8. Thieme, K., Saunders, M. A. S., & Ferreira, L. (2024). From language to algorithm: trans and non-binary identities in research on facial and gender recognition. AI and Ethics, 1-18.
9. "'Just for females' social media app Giggle under fire for 'excluding' trans women". PinkNews. 24 January 2022. Retrieved 16 August 2024.
10. Dumas, Daisy (2024). "Tickle v Giggle: transgender woman sues female-only 'online refuge' for alleged discrimination in landmark case." The Guardian. 9 April 2024.
11. Snowden, Angelica (6 July 2022). "Discrimination claims against women-only app dropped". The Australian . Archived from the original on 6 April 2024. Retrieved 15 April 2024.
12. Panagopoulos, Joanna (10 April 2024). "'Evolutionary biologist' to be called in trans defamation case". The Australian .
13. "Why the Giggle app is for females only." Archived 2023-09-24 at the Wayback Machine Plebity. 10 March 2021. Accessed 1 April 2024.
14. Australian Associated Press (2022). "Transgender woman sues female only app giggle for girls for alleged discrimination." Archived 2023-06-03 at the Wayback Machine The Guardian. 31 Dec 2022. Accessed 5 April 2024.
15. "Sex Discrimination Commissioner assists Federal Court in Tickle v Giggle for Girls Pty Ltd case." Archived 2024-05-29 at the Wayback Machine Australian Human Rights Commission (AHRC). 9 April 2024. Accessed 11 April 2024.
16. "Notice of Filing" (PDF). Federal Court of Australia. 4 May 2022. Archived (PDF) from the original on 7 April 2024. Retrieved 15 April 2024.
17. Snowden, Angelica (9 July 2022). "Clash between trans and women's rights". The Australian . Archived from the original on 6 April 2024. Retrieved 6 April 2024.
18. "Female-only app represented by Katherine Deves fails to throw out transgender discrimination suit". Guardian. Archived from the original on 2023-07-23. Retrieved 2024-04-19.
19. "Roxanne Tickle v Giggle for Girls Pty Ltd & Anor." Archived 2024-04-07 at the Wayback Machine Federal Court of Australia. 22 November 2023. Accessed 7 April 2024.
20. Bastiaan, Stephanie (2024). "Tickle v Giggle womens rights on trial." Archived 2024-04-09 at the Wayback Machine Women's Forum Australia. April 08, 2024.
21. Xiao, Allison (2024). "Tickle v Giggle court case kicks off." Archived 2024-04-09 at the Wayback Machine ABC News. 9 April 2024.
22. Mackay, Melisssa (11 April 2024). "Transgender woman Roxanne Tickle seeks $200,000 in damages in first Federal Court case based on gender discrimination". ABC News. Archived from the original on 11 April 2024. Retrieved 16 August 2024.
23. "Tickle vs Giggle: in a world where transgender people are under attack, this is a test case for Australia." Archived 2024-06-17 at the Wayback Machine The Conversation. 12 April 2024. Accessed 12 April 2024.
24. Sainsbury, Michael (2024). "In Australia, women-only app becomes latest front in war over trans rights." Archived 2024-04-25 at the Wayback Machine Al Jazeera. 22 April 2024. Accessed 25 April 2024.
25. Cook, Michael (2024). "Tickle v Giggle: Australian court to decide who are women and who are not." Archived 2024-04-11 at the Wayback Machine BioEdge. April 11, 2024.
26. Gerber, Paula (2024-04-12). "Tickle vs Giggle: in a world where transgender people are under attack, this is a test case for Australia". The Conversation. Archived from the original on 2024-06-17. Retrieved 2024-06-12.
27. "A fight for the future of women's rights". The Spectator Australia. 2024-04-17. Archived from the original on 2024-06-12. Retrieved 2024-06-12.
28. Alsalem, Reem (2024). "Position paper on the definition of "woman" in international human rights treaties, in particular the Convention on the Elimination of All Forms of Discrimination Against Women." Archived 2024-08-27 at the Wayback Machine Office of the United Nations High Commissioner for Human Rights (OHCHR). 4 April 2024. Accessed 11 April 2024.
29. Dumas, Daisy (2024-08-23). "Transgender woman Roxanne Tickle wins discrimination case after being banned from women-only app". The Guardian. ISSN   0261-3077. Archived from the original on 2024-08-27. Retrieved 2024-08-23.
30. "Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960". Federal Court of Australia. Archived from the original on 2024-08-23. Retrieved 2024-08-23.
31. Bromwich, Robert (23 August 2024). "FEDERAL COURT OF AUSTRALIA Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960" (PDF). Federal Court of Australia. Archived (PDF) from the original on 23 August 2024. Retrieved 23 August 2024.
32. Dumas, Daisy (2024-10-03). "Giggle for Girls founder appeals finding that app discriminated against transgender woman". The Guardian. ISSN   0261-3077 . Retrieved 2024-10-04.