A landmark case on discrimination, sex, and gender will head to the appeals court next month.
Last year the Federal Court found that transgender woman Roxanne Tickle had been discriminated against when she was blocked from accessing the social media app Giggle for Girls.
Justice Bromwich found the company had discriminated against Tickle when they decided she “did not look sufficiently female” and ruled that the updated laws meant that sex on its “ordinary meaning is changeable.”
It was the first time the gender identity discrimination provisions have been tested since they were added to the Sex Discrimination Act in 2013. Judge Bromwich awarded Tickle $10,000 in compensation and costs capped at $50,000.
The appeal will be heard by the Full Court of the Federal Court over four days from 4th August before judges Melissa Perry, Geoffrey Kennett and Wendy Abraham.
On one side is Sall Grover, the CEO of Giggle for Girls, who has developed a big media profile speaking about her concerns. Since the decision was handed down Roxanne Tickle has been largely absent from the public debate, but the court will hear a counter-appeal against the original judgement.
The court will also hear from Australia’s Sex Discrimination Commissioner Anna Cody, who was granted amicus curiae (friend of the court) status in the case. The commissioner has described her contribution as assisting the court by providing submissions about the meaning, scope and validity of the relevant provisions in the legislation.
In a rare move the court has also granted permission for the Victorian based Lesbian Action Group to be heard in the case, recognising that their legal battles over a desire to hold lesbian only events that exclude transgender people cover the same disputed interpretations of the sex discrimination laws.
The group applied to the Human Rights Commission for an exemption from the act, but were rejected. They also lost an appeal to the Victorian Administrative Appeals Tribunal. Their challenge to that ruling to the federal court has been stayed pending the outcome of the Giggle v Tickle appeal.
In their submission to the court, prepared by barristers Leigh Howard and Megan Blake, the group says its now commonplace for lesbians to be pressured into having sex with transgender women. Details of their submission were published in The Australian newspaper.
“It is the lived experience of lesbians to be confronted by autogynephilic men (those who become sexually aroused by the idea of themselves as women) seeking lesbian attention, as a means of generating sexual gratification for themselves.
“It is now commonplace for lesbians to be pressured into having sex with transwomen, and to face risk of social isolation if they do not agree with that very concept. This is unacceptable.” the submission claims.
The group will argue that a ruling is needed that removes transgender woman from the legal definition of woman, and that this is needed to stop boys enrolling in girls only schools, people who are born male accessing services in rape and domestic abuse shelters, and to protect woman from being forced to undergo intimate body searches by people of a different gender.
In a media release Grover said she was thrilled the court would allow the Lesbian Action Group to be part of the case.
“I am thrilled that Lesbian Action Group have been granted leave to intervene in this critical case,”
said Grover. “Lesbians and women deserve the right to freely associate in spaces that respect our experiences and biological reality. This case is about ensuring that the law upholds fairness, dignity, safety and reality for women and lesbians. No man is a woman or a lesbian.”
Grover’s legal team is expected to argue that Justice Bromwich failed to consider the broader context of the Sex Discrimination Act, and the set up of the app was designed to address disadvantages experienced by women.
Tickle’s team have also lodged a cross-appeal which will argue that in the original case there was no evidence that women experienced “persistent sex-based disadvantage in digital environments” and will also ask the court to revisit whether she was a victim of direct discrimination, rather than the indirect discrimination that was outlined in the original finding.
Do you need some support?
If you are struggling with anxiety or depression, support and counselling are available from:
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DISCHARGED: info@discharged.asn.au / discharged.asn.au
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Lifeline: 13 11 14 / lifeline.org.au
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