By Duncan Murray
The question of whether someone is a woman is not just biological but also social and psychological, a court has heard on the first day of a landmark trans-rights lawsuit.
Trans woman Roxanne Tickle is suing female-only social media platform Giggle for Girls after her access to the app was revoked in September 2021.
Roxanne Tickle says Giggle for Girls illegally discriminated on the grounds of gender identity after her access to the app was revoked.Credit: AAP
The app and its founder, Sall Grover, illegally discriminated on the grounds of gender identity, Tickle’s lawyer Georgina Costello told a Federal Court hearing in Sydney on Tuesday.
“The evidence will show that Ms Tickle is a woman,” Costello said.
“She perceives herself as a woman. She presents herself as a woman.”
Giggle’s barrister Bridie Nolan said the app was created to give women a safe space, free from “male online digital violence”.
Grover experienced sexual abuse during her time working as a screenwriter in Hollywood and had undergone trauma therapy, the court was told.
The app offered a range of ways for users to connect, including finding roommates and engaging socially or romantically.
“The vision was to create an online refuge,” Nolan said.
“It would be a place without harassment, mansplaining, d--- pics, stalking, aggression.”
Nolan argued the app was not in breach of sex discrimination laws, which allow for “special measures intended to achieve equality”.
The app created greater “equality between men and women in public life” by creating a safe space for women online, she said.
Therefore, excluding Tickle, who Nolan argued was a man, would constitute a “special measure” under the laws, she said.
Costello labelled Giggle’s arguments “artificial, after-the-fact justifications” for discrimination against transgender women.
Tickle was issued a birth certificate stating she was female a year after undergoing gender-affirming surgery in October 2019.
Costello told the court in her opening statement that “gender is not merely a biological question, it is partly social and partly psychological”.
“Ms Tickle was assigned male gender at birth but she has changed to being a woman and that fact is clear in this case,” she said.
Representatives from the Australian Human Rights Commission, including Sex Discrimination Commissioner Anna Cody, are assisting the court by providing submissions about the “meaning, scope and validity of relevant provisions of the Sex Discrimination Act”.
“The commissioner is not a party to the proceeding and has not made submissions about whether Ms Tickle was in fact discriminated against,” the human rights commission said in a statement.
It is the first time a case alleging gender identity discrimination has been heard by the Federal Court.
Supporters for both sides gathered outside the Federal Court for the start of the proceedings, protesting within metres of each other.
Justice Robert Bromwich said the court would not tolerate any “intimidation or harassment” either within the courtroom or outside it.
“I appreciate that the issues from this case give rise to strongly held views and emotions,” he said.
Some members of the public had shown they were “unable or unwilling to tolerate the existence of any view contrary to their own”, Justice Bromwich added.
In a statement filed with the Australian Human Rights Commission in December 2021, before the Federal Court case was launched, Tickle outlined the alleged discrimination.
“I believe that I am being discriminated against by being provided with extremely limited functionality of a smartphone app by the app provider compared to that of other users because I am a transgender woman,” Ms Tickle wrote.
“I am legally permitted to identify as female.”
The hearing continues.
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