Free speech no joke, says Giggle for Girls founder in appeal over trans gender ‘Sweaty Balls’ laughter

A spontaneous laugh in court has turned the Tickle sex discrimination case into a test of whether a joke or insult about transgender people can be protected speech under the law.

Sall Grover and Roxanne Tickle

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When Giggle for Girls app founder Sall Grover burst out laughing in court at a caricature of transgender woman Roxanne Tickle, she couldn’t have imagined it would spark a constitutional ­battle over the limits of free speech.

That spontaneous laugh has turned the sex discrimination case about female-only spaces into an equally watershed test of whether a joke or insulting remark about trans gender people can be protected speech under law.

In a new submission responding to a cross-appeal filed by ­Tickle, Grover’s legal team argues that her “momentary, reflexive laugh” in response to political satire was protected by the implied freedom of political communication in the Constitution.

“If the freedom protects mockery, it protects response to mockery,” Grover’s lawyers claim in a submission lodged with the Federal Court late on Friday.

Even highly offensive statements and insults may constitute protected political expression, the submission argues, otherwise the effect would be “to chill pol­itical engagement and penalise dissent”.

Grover is appealing judge Robert Bromwich’s ruling in the Federal Court last year that she indirectly discriminated against Tickle by rejecting her from the female-only Giggle networking app because she looked like a man.

Tickle is also appealing parts of Justice Bromwich’s decision, arguing the judge should have found she was the victim of direct, rather than indirect, discrimin­ation and that Grover should pay her at least $40,000 for the hurt caused.

The scented candle that caused Sall Grover to laugh during a hearing of the Tickle v Giggle case in the Federal Court in 2024.

Under cross-examination during the case, Grover was confronted with a piece of crowd-funding merchandise sold online – a scented candle taking a satirical jab at Tickle’s claim that she ­realised she was a woman because she “hated the smell of balls”.

The “Sweaty Balls” scented soy candle was on sale at $37.30, but her involuntary laugh cost Grover $10,000.

Justice Bromwich was not amused, awarding aggravated damages for her “offensive and belittling” outburst.

Grover rebuts Tickle’s claim that the $10,000 penalty was “manifestly inadequate”, arguing the damages award was “infected by legal error” and should never have been made.

The only basis for the award “was a brief and involuntary act of laughter” by Grover – reacting to a proposition put to her by Tickle’s counsel – that the judge found was not deliberate, malicious, or intended to cause harm, the submission says. The laughter was a “momentary, reflexive laugh” and a “spontaneous courtroom response”, and Tickle should not be allowed to increase “this already flawed reward”.

Giggle for Girls founder Sall Grover leaves the Federal Court last year.

Roxanne Tickle outside court. Picture: Jane Dempster

More importantly, Grover’s legal team argues, imposing liability “for expressive conduct during litigation” raises a potentially serious constitutional issue.

“The conduct in question occurred in court, during adversarial proceedings, in response to cross-examination in respect of political satire. The subject of that satire – a basis on which (Tickle) had publicly claimed to be a woman – is at the core of political discourse in this litigation.

“To penalise expressive response to that claim is to burden political communication.”

The satirical candle was sold on the Etsy website, along with other merchandise like T-shirts, with some of the profits going to Grover’s Giggle crowdfund. That candle features a caricature of Tickle and a speech bubble reading: “So, I realised I was a woman because I hate the smell of balls.”

Grover’s legal team says it was intended to mock a statement made by Tickle on the SBS Insight program “to the effect that the ­realisation of being a woman was due to an aversion to the smell of men’s locker rooms”.

Roxanne Tickle won a gender identity case against female-only platform Giggle for Girls. Picture: Instagram

“That was not a private disclosure. It was part of a public-facing narrative, voluntarily dissemin­ated through broadcast media … and deployed in support of legal claims about gender identity and access to female-only spaces such as women’s change rooms.”

Grover’s legal team cites a 2004 High Court case in which judge Michael McHugh observed that even highly offensive statements may still constitute protected political expression if they concerned political matters. Insults, like irony, humour and sharp criticism, are inherent features of political communication.

“To permit liability to attach to such conduct – particularly in the absence of any finding of harm – is to chill political engagement and penalise dissent”, Grover’s team argues.

Grover is pushing back against the claim she discriminated against Tickle at all, arguing that her app simply excluded users based on a visual impression that they were men, not on their self-identified gender.

Grover rejected Tickle from the app based on Tickle’s selfie and “a visual impression of maleness”. Giggle’s submissions effectively ask: “How can you dis­crim­in­ate against someone’s gender identity if you don’t even know what it is?” For discrimination under the Sex Discrimination Act to occur, it must be by reason of a person’s “gender identity”.

The Giggle social media app for women founded by Sall Grover.

Grover argues that her app’s condition applied uniformly to all users perceived as male, indifferent to any unknown or uncommunicated gender identity. There was no evidence a person of similar appearance but without Tickle’s gender identity would have been treated differently. “In short, a person of male appearance who did not identify as a woman would have been treated the same … The treatment was not less favourable by reason of ‘gender identity’.”

The appeal and cross-appeal will be heard over four days from August 4 in the Full Court of the Federal Court, before judges Melissa Perry, Geoffrey Kennett and Wendy Abraham.