What is a woman? Australian court rules in landmark case

A transgender woman in Australia has won a discrimination case against a women-only social media app after she was denied access because she was a man.

The Federal Court judgment found that although Roxanne Tickle had not been directly discriminated against, she had been the victim of indirect discrimination.

This is a landmark decision on gender identity, and at the heart of the case is the increasingly controversial question: what is a woman?

In 2021, Tickle downloaded “Giggle for Girls” – an app marketed as an online refuge where women could share their experiences in a safe space, and where men were not allowed.

To gain access, she had to upload a selfie to prove she was a woman – which was assessed by gender recognition software designed to exclude men.

However, seven months later, after successfully joining the platform, his membership was revoked.

As a person who identifies as a woman, Tickle claimed she had a legal right to use services intended for women and that she had been discriminated against because of her gender identity.

She sued the social media platform and its CEO Sall Grover, seeking damages of A$200,000 ($134,000 and £102,000). On Friday, the Federal Court ordered the app to pay her A$10,000 plus costs.

But Giggle’s legal team argued that sex is a biological concept.

They readily acknowledge that Tickle was discriminated against, but because of her sex, not her gender identity. Denying Tickle access to the app constitutes legal sex discrimination, they argue. The app is designed to exclude men, and because its founder perceives Tickle as a man, she argues that denying him access to the app was legal.

The case, known as Tickle v Giggle, is the first time an alleged discrimination based on gender identity has been heard in a federal court in Australia.

It encapsulates how one of the most acrimonious ideological debates – transgender inclusion versus sex-based rights – can play out in the courts.

Roxanne Tickle was born male, but had a gender change and has been living as a woman since 2017.

In her court testimony, she said: “Until now, everyone has treated me like a woman.”

“Every now and then I get frowned at, stared at and looked at questioningly, which is quite disconcerting… but they let me go about my business.”

But Sall Grover believes that no human being has or can change sex – which is the pillar of critical gender ideology.

When Tickle’s lawyer, Georgina Costello KC, cross-examined Grover, she said:

“Even when someone who was assigned male at birth becomes a woman through surgery, hormones, removing facial hair, undergoing facial reconstruction, growing their hair out, wearing makeup, wearing women’s clothing, describing themselves as female, presenting as female, using women’s locker rooms, changing their birth certificate, you don’t accept that they are a woman?”

“No,” Grover replied.

She also stated that she would refuse to call Tickle “Mrs.” and that “Tickle is a biological male.”

Sall Grover identifies as a “TERF” (an acronym that stands for “anti-trans radical feminist”). TERFs’ views on gender identity are widely considered hostile to trans people.

“I am being sued in federal court by a man pretending to be a woman because he wants to use a women-only space that I created,” she posted on X.

“No woman in the world would have to sue me for using this women’s space. It takes a man to make this case happen.”

She says she created her app, “Giggle for Girls,” in 2020 after receiving numerous insults on social media from men while working in Hollywood as a screenwriter.

“I wanted to create a safe, women-only space in the palm of your hand,” she said.

“It is a legal fiction to claim that Tickle is female. His birth certificate was changed from male to female, but he is a biological male and always will be.”

“We stand for the safety of all women-only spaces, but also for the fundamental reality and truth that the law should reflect.”

Grover previously said she would appeal the court’s decision and fight the case all the way to the High Court of Australia.

The outcome of this case could set a legal precedent for resolving conflicts between gender identity rights and sex-based rights in other countries.

To understand this, it is essential to refer to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). This is an international treaty adopted in 1979 by the UN, which is in reality an international charter of women’s rights.

Giggle’s defence argued that Australia’s ratification of CEDAW obliges the state to protect women’s rights, including single-sex spaces.

Today’s decision in favour of Roxanne Tickle will therefore be significant for the 189 countries where CEDAW has been ratified – from Brazil to India to South Africa.

When it comes to interpreting international treaties, national courts often look to how other countries have done so.

Australia’s interpretation of the law in a case that has received such a high level of media attention is likely to have global repercussions.

If, over time, more courts rule in favor of gender identity claims, it is more likely that other countries will follow suit.