No Laughing Matter

Tickle v Giggle

Tickle v Giggle is a significant case in Australian discrimination law. While many aspects of it are unique to the Australian legal system, there are nevertheless several lessons that can be learnt from both the judgment itself and the, frankly, incomprehensible manner in which both sides behaved.

What follows is a description and analysis of the judgment. I want to make it clear at this point that I am not an expert in Australian constitutional or discrimination law. Based on this judgment, however, neither were counsel for either party.

This judgement should serve as a stark reminder to those involved in litigating cases of significant public importance that there is a world of difference between political sloganeering and legal argumentation. Both sides in this case at times advanced simplistic but politically salient claims that were of minimal relevance to the legal questions before the court and which served no meaningful legal function, notwithstanding the fact that they may have reflected deeply held views on the topic generally.

The Facts

Roxanne Tickle was born male but identifies as a woman. As a matter of Australian law, that identity is legally recognised; Tickle is deemed by the Queensland Register of Births, Deaths, and Marriages to be both female and a woman.

Sally Grover is the founder and CEO of Giggle, a company that made the Giggle App, described as “a women-only safe space on the internet, where women could search for roommates and employment opportunities, network, commune and engage in discussion.” [95]. In order to ensure that users of the App were female, Giggle required anyone who registered for the App to upload a selfie of themselves. This would then be subject to two methods of screening; an initial and automatic AI assessment followed by a human assessment some time later. Tickle initially passed the AI screen, which was set at 94% accuracy, but was subsequently blocked from the App when Grover conducted her own assessment.

Shortly after realising that a block had been put in place, Tickle made a complaint to the Australian Human Rights Commission, alleging unlawful discrimination on the basis of gender identity. This could then trigger a conciliation process, if Grover and Giggle had agreed to it. They declined and this enabled Tickle to bring gender identity discrimination proceedings in the Federal Court of Australia.

The Legal Framework

Tickle is suing for breach of the Sex Discrimination Act 1984. Section 5B of the Act states:

5B  Discrimination on the ground of gender identity

 (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identity if, by reason of:

 (a) the aggrieved person’s gender identity; or

 (b) a characteristic that appertains generally to persons who have the same gender identity as the aggrieved person; or

 (c) a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity.

 (2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identity if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the aggrieved person.

Subsection 1 makes provision for the prohibition of direct discrimination and subsection 2 makes provision for the prohibition of indirect discriminaiton. This must be read in conjunction with section 22 which prohibits discrimination in the provision of goods and services.

In order to count as direct discrimination, the discriminator must treat the aggrieved person less favourably by reason of a matter referred to in s.5B(1)(a)-(c). This is different from the but for test used in U.K. anti-discrimination law, because it focuses not on a strict comparator test but on the mental state of the duty-bearer.

Indirect discrimination focuses on usually ‘facially neutral’ conditions, requirements or practices which put or are likely to put those who share a gender identity at a particular disadvantage. This provision is subject to Sections 7B and 7D.

Section 7B provides for a reasonableness test whereby if conduct that would otherwise be indirectly discriminatory is reasonable in the circumstances, it will not be prohibited under s 5B(2). S 7C states that the burden of establishing reasonableness rests on the party who engaged in the otherwise discriminatory behaviour.

Section 7D allows persons to take special measures for the purpose of achieving specified kinds of “substantive equality”, but only until equality is achieved.  These special measures are deemed not discriminatory provided that the sole, dominant or substantial purpose of the special measure is to achieve a form of substantive equality specified in s 7D(1).  The forms of substantive equality listed in s 7D(1) are:

A person may take special measures for the purpose of achieving substantive equality between:

(a)        men and women; or

(aa)      people who have different sexual orientations; or

(ab)      people who have different gender identities; or

(ac)      people who are of intersex status and people who are not; or

(b)        people who have different marital or relationship statuses; or

(c)        women who are pregnant and people who are not pregnant; or

(d)        women who are potentially pregnant and people who are not potentially pregnant; or

(e)        women who are breastfeeding and people who are not breastfeeding; or

(f)        people with family responsibilities and people without family responsibilities.

Section 32 provides as follows:

Services for members of one sex

 Nothing in Division 1 or 2 applies to or in relation to the provision of services the nature of which is such that they can only be provided to members of one sex.

So, there is a legal prohibition on discrimination by reason of or based on gender identity. This can be divided into direct and indirect discrimination. Direct discrimination requires a mental element wherein the reason for the less favourable treatment is determined to be informed, partly or wholly, by the gender identity of the aggrieved person or characteristics that appertain generally to or are generally attributed to people who share the aggrieved person’s gender identity. Indirect discrimination focuses on policies that disadvantage people who share the aggrieved person’s gender identity and this is subject to a general reasonableness defence. All of this is subject to s 32 which disapplies the prohibition on gender identity discrimination (and sex discrimination) where the nature of the service provided is such that it can only be provided to members of one sex.

Giggle made no reference to s 32 at all in this case and the pleaded defence did not rely on the reasonableness defence. In closing submissions, lead counsel referenced the reasonableness defence, “but made no attempt to explain how it applied in this case, let alone any attempt to discharge the burden of establishing that was so required by s 7C” [37]. It was therefore impossible for the Court to decide in Giggle’s favour on those grounds because they were simply not argued.

Tickle’s Submissions

Tickle argued that Giggle had engaged in unlawful gender identity discrimination. The claim “did not clearly or coherently distinguish between direct and indirect discrimination, instead confusing the two” [41]. The pleadings failed to engage directly with the statutory text and ran two separate legal tests into one, presenting a confused and incoherent case before the court. None of these shortcomings were identified by Giggle’s lawyers and no objection was made to them until the Court raised the issue during closing submissions. When this was pointed out, counsel for Tickle argued that the claim was for both direct and indirect discrimination, argued in the alternative. However, having reviewed these arguments, the Court concluded that the substance of Tickle’s case ultimately advanced only arguments pertaining to indirect discrimination.

Regarding the gender identity provisions, Tickle’s submissions used the term ‘cisgender’. This was described by the Court as “a word used in the community and in particular in discourse concerning gender identity, but not in the language of the SDA” [44]. It is not unusual for statutory text to reference a general category (in this case gender identity) while leaving scope for parties to a case to flesh out an argument from within that category. In the Sex Discrimination Act, gender identity is defined as follows:

gender identity means the gender‑related identity, appearance or mannerisms or other gender‑related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.

Because gender identity is the equivalent of a protected characteristic under Australian law, a claim of discrimination by reason of or based on gender identity requires some comparison to those who do not have the claimed gender identity. At some point in proceedings, as a matter of law, some term or phrase will need to be used to describe people who do not have a trans identity. Because Australian law does not base the categories of man and woman on biology, it is not open to the court or any claimant to say that the comparator for Tickle is simply a man or a woman. The correct comparator here is someone of the same legal sex as Tickle who does not have the same gender identity. Tickle is legally female under Australian law and so the comparator must be a woman who does not have a transgender identity. Cisgender is the phrase advanced by Tickle and it was accepted by the court.

In contrast, Giggle’s defence “uses the terms “adult male human” and “adult female human”, adhering to the sex of a person as registered at birth, disregarding legislative language in the SDA to the contrary, and ignoring recognition of changes to sex pursuant to the Qld BDM Registration Act as a basis for being called female (or male) under the SDA” [44]. Giggle objected to the use of the terms ‘cisgender’ and ‘transgender’, anchoring all terminology to biology, “contending the word “man” can only mean an adult human male, and the word “woman” can only mean an adult human female.  They do not accept that this can ever change, contending that biology at birth permanently dictates the language that must be used to describe a person, irrespective of legislative departures from this stance” [45]. It is one thing to say that the words man and woman should only refer to biological reality, but it is another thing entirely to base a legal argument on those meanings when the law does not.

Whatever one may think of the politics of this, Tickle’s use of the term ‘cisgender’ was compatible with the Sex Discrimination Act, even if the term is not contained within the statutory text. Giggle’s argument is in direct conflict with the law. Sometimes you need to chose between being ideologicaly pure and advancing a legally cognisable argument. If you choose the former at the expense of the latter, you can’t expect to succeed in litigation.

Tickle’s submissions were confused and unclear. Giggle did not challenge this so the Court was left with the task of making sense of the pleadings. It concluded that Tickle’s argument was as follows:

1. a condition was imposed by Giggle, on the instruction or at the will of Grover - this is therefore a case of indirect discrimination;

2. the condition was that, to be allowed ordinary access to the Giggle App, a user had to be a ‘cisgendered’ female, or be determined as having ‘cisgendered’ female physical characteristics by Sall Grover on review of the submitted selfie;

3. in breach of s 22 of the Sex Discrimination Act, Giggle and/or Grover discriminated against Tickle on the basis of gender identity by imposing this condition;

4. by imposing this condition, Tickle was treated less favourably than cisgender women because Tickle is a transgender woman;

5. imposing this condition was a breach of the prohibition of discrimination on the ground of gender identity in s 22 of the Sex Discrimination Act, because the condition put transgender women at a disadvantage compared to cisgendered women;

6. unlike transgender women, cisgender women would not have their access to the Giggle App restricted, or their womanhood questioned on the basis of their physical appearance.

Tickle points to two requirement that purportedly made up the imposed condition that gave rise to the indirect discrimination: the claim that there was a requirement that Giggle App users be cisgender women and the requirement that they appear, on examination of their photograph, to be a cisgendered woman. The Court identified two difficulties with this first claim:

1. the requirement that a user be a cisgender woman more properly relates to a claim of direct discrimination, not indirect.

2. more importantly, it does not engage with how Tickle was actually removed from the App, which made no reference to gender identity and operated simply on the basis of appearance.

Neither of these difficulties were raised by Giggle’s lawyers. The Court therefore made its own assessment, unaided by submissions from Giggle.

Giggle’s Submissions

The thrust of Giggle’s argument is “largely an exercise in blanket denial” [49]. The central claim is that Tickle is a man, regardless of what Australian law says; that removal from the Giggle App was because Tickle appeared to be male; that this amounted to sex discrimination rather than gender identity discrimination, regardless of what Australian law says; and that all of Tickle’s submissions are flatly denied. Giggle responded to the claim of direct discrimination but made no submissions in response to the claim of indirect discrimination and therefore failed to discharge the burden of establishing that the exclusion was reasonable. In fact, “as advanced by their pleaded defence and the way in which they ran their case, they have tended to help Ms Tickle to establish indirect discrimination” [49].

It was clear to the Court that Giggle’s legal team simply rejected the concept of gender identity and refused to recognise its existence within Australian law. Having done that, it became next to impossible to advance a response to the claim of indirect gender identity discrimination and this may explain why no submissions were advanced on that point.

Instead, Giggle advanced three arguments. The first what that the removal of Tickle was permissible sex discrimination covered under an exception set out in s 7D of the Sex Discrimination Act as discussed above. The second was that the provisions in the Act which mentioned gender identity were unconstitutional and therefore invalid. The third was that Giggle was not a trading corporation for the purposes of Australian law.

On the first point, the Court noted that:

“The respondents’ position remains, as best as I was able to determine given the way in which it was presented, which failed to substantially engage with the real legal issues and facts in this case, that sex refers only to biological features which produce an immutable and binary position of man or woman, while gender identity is directed only to a person’s individual identity as characterised by how a person signals their gender to others, referring to behavioural features, psychology and society” [53]

On the second point, Giggle argued that s 5B of the Sex Discrimination Act, which defines gender identity discrimination, is incompatible with the Commonwealth legislative power. Australia is a federal legal system. Unlike the United Kingdom where devolution operates on the premise that the Westminster Parliament is sovereign and can legislate on any matter it wishes, a federal legislature is only empowered to legislate where it has specific authority to do so. One source of legislative power is when legislation is enacted to give effect to an international instrument binding upon Australia in international law.

The Sex Discrimination Act was initially introduced to implement the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW), but was later expanded to also incorporate aspects of the International Covenant on Civil and Political Rights (ICCPR), which includes a generic anti-discrimination provision. Giggle argued that CEDAW does not support gender identity discrimination provisions and that the ICCPR is too vague to support the expansion of anti-discrimination protection to include gender identity.

Finally, Giggle argued that it was not, on the evidence a trading corporation because it was not profitable and because, despite it charging a fee for premium features, it was primarily aimed at creating a female-only space rather than turning a profit.

The Expert Evidence

Giggle included three expert reports as part of its submissions. These were from Colin Wright, Kathleen Stock and Helen Joyce. Dr Wright’s and Dr Stock’s reports were accepted as expert evidence without objection. Dr Joyce’s report was not accepted as expert evidence in this case, not least because Giggle’s lawyers themselves accepted that she lacked sufficient expertise to comment on the proper construction of Australian anti-discrimination law.

Giggle’s lawyers advanced an argument that Dr Joyce’s report went to a finding of legislative fact relating to whether the Giggle App constituted a special measure for the purposes of s 7D of the Sex Discrimination Act. This was described by the Court as “rather peculiar” because it was not presented as a submission or as evidence but as some third category hitherto unknown to Australian law. The Court rejected this presentation and concluded that the evidence advanced by Dr Joyce as to the importance of biological sex was of no relevance to the construction of s 7D, because Australian law does not operate with reference to a biological conception of sex. The Court concluded that Dr Joyce is entitled to her political views on the importance of biological sex, but they are of no assistance to Giggle’s case, nor to the Court.

I will say more about this in the analysis section below, but I should note at this point that, in my view, Dr Joyce has been treated quite poorly by the legal team representing Giggle. She was likely approached to provide expert evidence that would assist in advancing a legal argument before the court and likely trusted that this is what her evidence would be presented as. Instead, no serious effort seems to have been made to connect this report to settled Australian law, the report was not presented to the Court as an expert report, nor as part of submissions, but as some kind of third category, and the legal team itself accepted that she is not an expert in the legal issues before the court. This has all the hallmarks of a legal team focusing more on publicity than legal argumentation.

The Court’s Conclusions

Drawing all of this together, the Court came to several conclusions. Each of these will be addressed in turn.

The definition of sex in the Sex Discrimination Act

The Court relied on longstanding legal authority to come to several conclusions relating to the proper interpretation of sex in the Sex Discrimination Act. The first and most important conclusion was that sex is not confined to biological categorisation for the purposes of the Act. The Act previously had a definition of man and woman that tied each category to the biological concepts of male and female. This was removed from the Act when the gender identity provisions were introduced. Longstanding Australian caselaw states that the interpretation of a piece of legislation must take into account all of the amendments, including the express choice to remove or add provisions. This precludes an interpretation which would result in the removal of a provision having no effect on the meaning of the Act. The fact that the biological definition of sex was removed from the Sex Discrimination Act must be given legal meaning:

“The changes were overt and deliberate.  They included not just the introduction of the gender identity discrimination provisions, but also the change of all references to “the opposite sex” to “a different sex” and the repeal of the definitions of “man” and “woman” (which had referred to members of the male and female sex, respectively).  Those amendments all point forcefully to an understanding of sex, as it is deployed in the SDA, that is changeable and not necessarily binary, contrary to the respondents’ submissions” [59]

…

“The acceptance that Ms Tickle is correctly described as a woman, reinforcing her gender identity status for the purposes of this proceeding, and therefore for the purposes of bringing her present claim of gender identity discrimination, is legally unimpeachable” [63].

As a matter of law, Roxanne Tickle is a woman. The fact that Giggle’s legal team advanced all arguments from the presumption that Tickle is legally a man, with no alternative arguments in case this claim was rejected, means that there was an incredibly slim chance of success in this case.

Direct Gender Identity Discrimination

The Court concluded that the direct discrimination claim must fail because, on the evidence before it, neither Giggle, nor Sall Grover, based any decision on Tickle’s gender identity, having no knowledge of it at the time. This might have been established had there been a more effective cross-examination [130]. The Court concluded that Grover blocked Tickle on the basis of a male appearance, not on the basis of an actual or perceived gender identity. Therefore, the claim of direct gender identity discrimination was not made out:

It is implicit in s 5B(1) that the discriminator actually be aware of a person’s gender identity, or the characteristic that generally appertains or is imputed to persons of the same gender identity.  But that awareness is different from a requirement that a person have some additional belief about the legitimacy of that gender identity.  In short, if it were established that the respondents had been aware of Ms Tickle’s gender identity, but dismissed its legitimacy and for that reason excluded her from the Giggle App, her case of direct discrimination would likely have succeeded.

Indirect Gender Identity Discrimination

On the indirect discrimination point, the Court concluded that the argument advanced by Giggle’s legal team heavily contributed to a finding of liability. The argument advanced effectively admitted and defended placing transgender women, as defined in Australian law, at a disadvantage by requiring them to pass as female in order to remain on the Giggle App. A defence of reasonableness was not advanced and the special measures defence, as argued, relied on an interpretation of the Sex Discrimination Act that was unsustainable, given the refusal of Giggle’s legal team to accept or engage with the legal reality that the categories of man and woman in the Act are no longer tied to biology.

The argument that the exclusion of Tickle was not gender identity discrimination but permissible sex discrimination was unsustainable because Tickle is legally a woman. Refusal to run any argument which accepted that point but nevertheless attempted to justify exclusion from the App meant that there was simply no plausible defence advanced in this case. The reasonableness defence was not advanced in submissions and the single sex service exemption was not mentioned at all. The special measures defence was fundamentally misconceived because it relied exclusively on a biological definition of sex that was no longer recognised in the Sex Discrimination Act.

The Constitutionality Argument

The Court began it’s analysis of this part of Giggle’s argument by noting that the submissions advanced mistakenly challenged the constitutionality of s 5B, which defines gender identity discrimination rather than s 22 read in conjunction with s 5B, which together prohibit gender identity discrimination in the provision of goods and services. Based on the advanced argument, the Court could have simply dismissed this argument as misconceived, given this mistake. It nevertheless chose to deal with this argument as if had been correctly argued.

With regards to CEDAW, the Court was not assisted by the submissions of either party, neither of which recognised that CEDAW cannot provide constitutional authority to legislate for gender identity discrimination, regardless of whether transgender women are considered to be women for the purposes of CEDAW. This is because, even if trans women are women, CEDAW only obliges states to eliminate discrimination against women as compared to men. If Tickle was legally a woman, gender identity discrimination would not be less favourable treatment as compared to men, it would be as compared to non-trans women. If Tickle was legally a man, gender identity discrimination provisions would not protect women from being discriminated against as compared to men. Neither of these options support the contention that gender identity discrimination provisions are constitutionally legitimate as an attempt to implement CEDAW:

“It follows that the question of whether references to women in CEDAW include transgender women must be left for a case in which this squarely arises for determination.  What matters is that CEDAW, by its text, does not in any event support the case that Ms Tickle brings against the respondents” [180]

The issue is that the Sex Discrimination Act is not solely reliant upon the implementation of CEDAW as justification for legislation. The ICCPR prohibits discrimination on the basis of several proscribed grounds, including an expansive ‘other status’ clause; “That wording strongly indicates that Art 26 was intended to create an open-ended obligation to address kinds of discrimination that may change over time and or vary depending on the situations of States Parties” [184].

The central thrust of Giggles argument is summarised and dismissed as follows:

“The substance and crux of the respondents’ argument is that gender identity, on this definition, is only a series of outward manifestations, not located in any status or notion of status.  They submit it is therefore too nebulous a concept to pick out a “political class” which, they assert, is necessary to be covered by Art 26.  In substance, this is a rather weak submission that this definition is too vague or malleable to be a status contemplated by Art 26.  As the Commissioner contends in response, the above s 4 definition of gender identity is clear enough to be a workable definition, correctly noting that gender identity is not exclusively defined by outward manifestations in any event.  Moreover, many of the other grounds of discrimination referred to in Art 26 are similarly malleable or vague.  For example, the phrase “political or other opinion” is not a reference to some kind of immutable or biologically founded characteristic, but one that is capable of profound change across an individual’s life.  The scope of what is political and what is an opinion as opposed to an objective fact is not necessarily fixed either, but can evolve over time. Status is a concept within which categories may be difficult to define with precision, especially in the abstract” [186]

Gender identity was determined by the court to be an “other status” subject to the non-discrimination provision, should a State choose to legislate for it. The idea that this was too vague to constitute an implementation of the ICCPR is frankly absurd.

The trading corporations power

The only argument more absurd than a challenge to the constitutionality of the gender identity discrimination provisions is the argument that Giggle is not a trading corporation. The Court made swift work of this claim, noting that Giggle relied on heavy investment of almost AU$500,000, charging for premium features, and that it is possible to be a trading corporation that also aims are providing an important social service:

“The conclusion that Giggle was a trading corporation is one of applied commonsense, supported by logic and some awareness of how social media has worked since the emergence of platforms such as Facebook.  Twin goals of profitability and creating spaces for human connection notoriously can be seen as a common feature of social media businesses, with long lead times before, sometimes, profits are actually made.” [195].

Giggle was not a charitable organisation. It existed to make money. It may have had other purposes, but that does not mean that it was not also a trading corporation.

Held

The Court therefore ultimately concluded that Giggle had indirectly discriminated against Tickle without any reasonable justification, because Giggle presented no arguments to establish reasonable justification, beyond a separate argument that the Giggle App constituted a special measure designed to advance the position of women. This latter claim was also rejected because it was advanced in a way that could not be accepted by the Court, given its refusal to engage with the fact that, as a matter of law, Tickle is a woman.

Remedies

Tickle sought several remedies. The first was a declaration that unlawful discrimination had occurred. Giggle made no submissions to argue that a declaration should not be made if liability is found and so the Court made one.

The second was a claim for general damages for any loss or harm suffered. This must be to compensate Tickle, not to punish Giggle. Both sides asserted - but did not argue for - wildly divergent awards. Tickle sought AU$100,000 and Giggle sought only a nominal sum of a few thousand dollars. Tickle presented no evidence to quantify this loss and Giggle asserted that even if liability was found, they had not done anything wrong and should not be required to pay anything more than a nominal sum. The Court rejected both assertions:

“There is no evidence of loss or damage sufferance in any monetary sum, or in any non-monetary sum giving rise to a reasonable basis for equating or approximating it to that quantum.  How the $100,000 proposed was arrived at was not explained.  In my view such a large sum in the circumstances of this case called for detailed submissions.  In the absence of such submissions, I am not satisfied that anything approaching that sum has even been attempted to be justified” [219]

Tickle argued that the removal from the App exacerbated a pre-existing psychiatric condition and that this should ground general damages. The Court rejected this because it was presented in a vague manner, with scant details as to the nature of the condition, when it developed, and how removal from the app actually contributed to it.

Nevertheless, Tickle also argued that Sall Grover’s actions and the ‘online hate’ that was expressed by her supporters compounded the existing anxiety. The Court found this difficult to accept as a ground for damages because “it is not possible to identify how, if at all, the unlawful discrimination contributed to this condition” [221]. Tickle did not distinguish between harm caused as a result of the removal from the App and harm caused as a result of the publicity of the trial. Giggle can only be held liable for the former.

Ultimately the Court concluded that Grover’s comments referring to Tickle as a man were bona fide statements of her genuinely held beliefs and could not ground damages without impermissibly interfering with the freedom of a party to run a case how they choose:

“As has been made evident in the conduct of these proceedings, what the word “woman” means is deeply contested, and there must be scope in which persons can put forward an argument, both in proceedings and in their public discussion of them, where it is genuinely held and a legitimate part of their case … Although that position was not vindicated in these findings, it would be an overstep by the Court in this context to award aggravated damages on the basis of comments about such beliefs” [268]-[269]

Nor could Giggle be legally held responsible for the comments of others online.

The only evidence for any of this harm was assertion from Tickle. The Court concluded that “Tickle is not a doctor or otherwise an expert on the matter, and so accordingly I cannot give this self-assessment any real weight” [222].

Taking all of this together, the Court concluded that the actual harm suffered by Tickle was slight if not minimal. This case was brought on a point of principle, not as a result of lasting hurt or disadvantage.

There were however, two areas where Grover’s conduct could have attracted aggravated damages. The first was the assertion made repeatedly in the media that Tickle had harassed her and that Grover did not know how Tickle obtained her phone number. This was determined to be disingenuous and bordering on defamatory because Grover provided her phone number to Tickle in an email exchange. However, these comments lacked a sufficient nexus with the unlawful discrimination found and so could not ground an award of damages.

The second was when Grover laughed as an offensive caricature of Tickle during the course of the trial. Her explanation that the caricature was funny in the context of the courtroom was deemed to be disingenuous and laughter at the physical appearance of a claimant was held to have no legitimate place in Giggle’s prosecution of their defence. This could be contrasted with accusations of ‘misgendering’ advanced by Tickle which were rejected on the grounds that they were bona fide and central to Giggle’s defence.

Minimal aggravated damages were awarded for laughing at the caricature of Tickle during trial and these were wound into a sum of AU$10,000 awarded by the court. Giggle was also required to pay Tickle’s costs, up to a cap of AU$50,000. An apology was sought but the court determined that it would not be genuine and so declined to order one be made.

Comments and Analysis

There is quite a lot to say about this case, not least what it means for the provision of single-sex services in Australia. However, the first and most glaring observation must be how poorly run it was on both sides, but particularly on Giggle’s side.