Sex exists on a scale and the definition of “woman” is not limited to the pages of a dictionary, a court has heard in an appeal hearing to overturn a landmark gender identity discrimination finding made against a women-only social media app.
Giggle for Girls and its CEO, Sall Grover, are challenging Justice Robert Bromwich’s August 2024 federal court judgment that found Roxanne Tickle, a transgender woman, was indirectly discriminated against when she was barred from the platform in September 2021. The case was the first gender identity discrimination case to reach the federal court.
Much of the proceedings, which concluded on Wednesday, centred on the definition of sex, woman and what it means to be a woman.
On Wednesday, Celia Winnett, the barrister for the Sex Discrimination Commissioner, who acted as a friend of the court, said the definition of “women does include transgender women”.
The full court of the federal court heard Giggle for Girls and Grover argue that the Sex Discrimination Act bears the “ordinary” meaning of men and women.
But Winnett said that “‘woman’ does now have a broader ordinary meaning … informed by its use” and that the meaning was “broad enough to include trans women”.
“There’s no need for ordinary meaning to hinge or rely on dictionary meanings,” she said.
On Monday, Grover’s barrister, Noel Hutley SC, told the court that “even today, the Macquarie dictionary defines the word ‘women’ by reference to what I have called ‘natal’ woman”. A natal woman is a term used to describe a person who was assigned female at birth.
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Giggle for Girls and Grover argue the app was allowed to discriminate against men because it was a special measure that redressed historical disadvantage between men and women. Grover has persistently misgendered Tickle and claims she did not know Tickle was a trans woman when she barred her from the app.
The words “opposite sex” were replaced with “different sex” in the Sex Discrimination Act in 2013, when amendments made it unlawful under federal law to discriminate against a person on the basis of sexual orientation, gender identity or intersex status. Man, woman and sex are not defined in the act.
Ruth Higgins SC, acting for Equality Australia, on Wednesday told the court that transgender people experienced unique forms of identity discrimination and that “sex” included social recognition and personal identification.
“Sex is way of classifying people along a scale between a man at one end and woman at the other,” she said. “Sex at birth is but one conception of sex.”
A purely biological definition relied on a “false simplicity”, she said, questioning whether biological meant anatomical, chromosomal, hormonal or a balance thereof.
The Lesbian Action Group was also given leave to intervene in the appeal. Its barrister, Leigh Howard, referred to the For Women Scotland case, when the UK supreme court in April issued a historic and definitive ruling that the terms “woman” and “sex” in the UK’s Equality Act refer only to a biological woman and to biological sex.
He said “sex is a biological condition, not an identity” and urged for the word “woman” to be given the same meaning throughout the act.
Georgina Costello KC, Tickle’s barrister, said Giggle for Girls’ policy to exclude transgender women from the app disadvantaged transgender women – and that those women could face gender identity discrimination because of a discordance between their appearance and their identity.
Because Giggle for Girls required users to have a gender identity that appeared consistent with their gender identity at birth, direct discrimination – rather than indirect discrimination as Bromwich found – was a “better fit”, she argued.
But her opposition said it could not have been parliament’s intention, when writing the Sex Discrimination Act, for protected measures – such as gender identity – to prejudice special measures for women.
“It would be an extraordinary by-blow of this exercise that expanding protection in effect undermines the ability to set up measures to achieve substantive equality,” Hutley said.
Over the two-and-half-day appeal, the court heard Tickle was seeking $40,000 in damages and that she was treated as a “hostile invader” when joining the app.
A finding is expected by February.
