Tickle v Giggle

Background

Case timeline

• January 2022: matter brought to the Australian Human Rights Commission by Roxanne Tickle, a transgender woman from New South Wales who was denied membership of the site. AHRC initially offered conciliation between the parties, but those efforts were unsuccessful.
• May 2022: matter filed in the Federal Circuit Court following the complaint.
• July 2022: case was, without explanation, dropped, as Tickle sought to discontinue all of the orders.
• June 2023: application made by Katherine Deves to dismiss the case was rejected.
• December 2023: case reopened by Tickle. 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.
• April 2024: hearing began before Justice Robert Bromwich with Giggle and Grover represented by Bridie Nolan. The court was required to examine the application of the Australian government's 2013 amendments to the 1984 Sex Discrimination Act. 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. The hearing concluded after several days of arguments.
• * The Australian Human Rights Commission participated in the legal case by sending representatives to the court, including Anna Cody, the Sex Discrimination Commissioner. The commission's role in the case was extended as a 'friend of the court' to clarify the provisions in Australia's Sex Discrimination Act. While the Commission sought earlier conciliation between the parties, it declined to offer submissions to the case.
• * 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. 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. 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.
• 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.
• * 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".
• * Bromwich refuted Alsalem's arguments that sex-based discrimination is a "biological" category, finding instead that "The word sex was, and remains, undefined in the SDA.", "sex is not confined to being a biological concept referring to whether a person at birth had male or female physical traits, nor confined to being a binary concept, limited to the male or female sex, but rather takes a broader ordinary meaning, informed by its use, including in State and Territory legislation.", and "for the purposes of the SDA, the determination of the sex of a person may take into account a range of factors, including biological and physical characteristics, legal recognition and how they present themselves and are recognised socially".
• * 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.
• * 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 ", 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.
• * The second constitutional challenge made by Grover was that there was "inconsistency between the Births, Deaths and Marriages Act 1994 and the SDA". Bromwich found that there was no inconsistency, and that the "two statutes can and do operate harmoniously".
• * Bromwich also stated in his judgement that Grover and her legal team had presented their case in a "disjointed and somewhat incoherent way".
• October 2024: Grover launched an appeal against the judgement.
• August 2025: Proceedings began in the Federal Court.
• *4 August 2025: Proceedings begin. Giggle's legal team is led by Noel Hutley SC, and Tickle's team by Georgina Costello KC. Several parties were granted intervener status in the case including the Sex Discrimination Commissioner Anna Cody, Equality Australia, and the Lesbian Action Group.