Giggle v Tickle: Courtroom sequel in clash over women-only spaces

Roxanne Tickle won a landmark discrimination case after being banned from a female-only networking app. The app’s creator, Sall Grover, is fighting back.

Roxanne Tickle and Sall Grover

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A ruling that a trans­gender woman was discriminated against when rejected from a ­female-only networking app is set to be challenged on the grounds that the judge failed to consider that the platform was designed to overcome the real disadvantages faced by biological women.

Sall Grover, creator of the ­Giggle for Girls app, has lodged an appeal seeking to overturn last year’s Federal Court ruling that she unlawfully discriminated against Roxanne Tickle, a biological male who identifies as a woman, by barring her from the app.

The finding by judge Robert Bromwich that “sex is changeable” and non-binary caused some shockwaves around the country, with some legal experts arguing it would make it impossible to exclude men from any female spaces if they claimed to be women.

Ms Tickle, who underwent gender-affirming surgery in 2019, was accepted into the app in February 2021 after an analysis of a “selfie” by Giggle’s third-party ­artificial intelligence tool, but was later blocked when Ms Grover surveyed the image herself.

Justice Bromwich found that Ms Grover had indirectly, but not directly, discriminated against Ms Tickle when she removed her from the app because she did not look sufficiently female, and ordered her to pay Ms Tickle $10,000, as well as her legal costs.

Ms Grover’s appeal will be heard over four days in August in the Full Court of the Federal Court, before justices Melissa Perry, Geoffrey Kennett and Wendy Abraham.

In a reflection of the extraordinary legal significance of the case, the court has granted leave to both the Sex Discrimination Commissioner and the Lesbian Action Group to intervene in the appeal.

Each side has recruited heavyweight legal teams, with Ms Grover represented by Sydney silk Noel Hutley, while Victorian Bar Council member Georgina Costello is likely to appear for Ms Tickle.

While much of Ms Tickle’s legal work has been done pro bono, Ms Grover has had to fund her own case through her Giggle crowd-funding website.

Ms Grover’s appeal team will claim that Justice Bromwich failed to consider the broader context of the Sex Discrimination Act, arguing that the app’s female-only policy was a special measure intended to address the unique disadvan­tages faced by women in digital spaces, and thus should not be considered discriminatory.

Grover is founder of Giggle, a social networking app for women.

Ms Grover said her own experience of sexual abuse and trauma recovery underscored for her the importance of female-only support environments and led directly to the app’s creation.

“These are not abstract concerns,” she says in her appeal submission, obtained by The Aus­tralian. “They represent real, lived disadvantage occasioned by female biological or physiological differences.”

The case last year before Justice Bromwich was the first time an allegation of gender identity discrimination had been heard by the Federal Court following changes to the Sex Discrimination Act in 2013, which made it unlawful to discriminate against a person on the basis of sexual orientation, gender identity or intersex status.

The core of Ms Grover’s appeal is that the act allows “special measures” – taken for the purpose of “achieving substantive equality” – which do not amount to discrimination under the law.

Ms Tickle leaving court. Picture: Jane Dempster

Those measures would include the Giggle app, which can be directed to a “defined subset such as females or those with physical attributes that gives rise to a perception that they are female”, she says.

The submission notes that while the 2013 amendments to the act repealed the definitions of “man” and “woman”, those terms continue to appear throughout the legislation “in a biological context” and “in a manner that presupposes biological sex”.

Justice Bromwich had described “indirect discrimination” as the imposition of a condition that is likely to disadvantage a person relative to another person who has a different gender identity.

Ms Grover argues in her appeal that if the Giggle app did impose a condition, it was reasonable under the circumstances. Any disadvantage to Ms Tickle – who had barely engaged with the platform before being excluded – was limited.

Ms Grover told The Australian she was confident her appeal would succeed.

“This person is clearly a male person,” she said. “He can call himself whatever he wants, he can wear whatever he wants. It’s only mine or anyone else’s business if we’re being forced to believe something that really isn’t true – and that’s my problem with it.”

She said her life and business had been at a standstill since Justice Bromwich’s decision.

“My professional life has been completely put on hold, and my days are instead spent focusing on raising the money to pay for the case,” she said.

Ms Grover estimates the case will have cost $1.5m by the end of the Federal Court appeal, and another $1.5m if it goes to the High Court.

“We could be looking at $3m ... spent just to establish that women can have female-only ­spaces,” she said.

“It’s absurd, but I’m an eternal optimist and I think in the end truth always wins.”