Statutory interpretation in Tickle v Giggle

A response to AAWAA

The Affiliation of Australian Women’s Action Alliances (AAWAA) has recently posted an interesting analysis of Tickle v Giggle which raises some important points relating to the principle of legality, statutory interpretation, and fundamental rights. In this post, I will address these points by way of some general observations, followed by more detailed analysis directly addressing each argument.

I should note at the beginning that some of these arguments, in particular the point about the principle of legality, present an important challenge to the judgement in Tickle v Giggle. It is unfortunate, therefore, that this argument does not appear to have been raised by Giggle’s legal team. There are many quite complex aspects of this case and several challenges that could be put to the decision of Justice Bromwich. It is important, therefore, to have a clear sense of why some of these arguments were not raised.

In my view, and I should stress that I am speaking as an expert on constitutional and equality law in the United Kingdom, not Australia (although similar legal principles apply), the central issue here was a failure to raise arguments in the alternative. If the court concluded, as it did, that Tickle was a woman for the purposes of the Sex Discrimination Act, some arguments should have been adduced by Giggle to establish that this status does not confer an automatic right to be included within all female-only services and that exclusion in this context amounted to justified indirect gender identity discrimination. That argument was not advanced and the Court therefore did not address that objection, nor did it address many of the arguments raised by AAWAA for the same reason.

Statutory Interpretation and the Intention of Legislators

One of the central questions that had to be decided by the court in Tickle v Giggle was what ‘sex’ means for the purposes of the Sex Discrimination Act. There is a common misconception about statutory interpretation that must be addressed at this point: while judicial interpretation of statute is an attempt to find the intention of the legislature, it is not an exercise of sociology, history, or empiricism. The intention of the legislature is not an empirical fact to be found in the world; it is a legal construct, constructed against a backdrop of legal presumptions informed by fundamental principles of legality.

This means that it is often irrelevant to bring to court evidence that some or even most legislatures thought they were enacting legislation that meant X when in fact the legislation itself actually means Y. A lawyer arguing in favour of an interpretation cannot chase down a sworn statement from a collection of legislatures as to what they thought they were doing when they legislated and present this as compelling evidence. While there may be some recourse to what is said in parliamentary debates (Pepper v Hart), this is not the starting point for statutory interpretation. The construction of statutory meaning is guided by the meaning of the words actually enacted by the legislature, coupled with principles of statutory interpretation that aid judges where there is uncertainty as to the legal meaning of the enactment.

Three central principles here are

1. the presumption that legislatures do not intend to undermine or violate fundamental rights;

2. the presumption that legislative change enacts legal change, and;

3. legislative history can be a guide to interpretation.

The first is well known to most common lawyers: the principle of legality is a strong presumption in favour of fundamental rights, be they derived from the common law or from some other legal source. If an interpretation of statute would result in fundamental rights being undermined or violated, it is open to one party to raise this before the court and argue in favour of an interpretation of statute which does not have such a result. Where a court accepts that a given interpretation would have this result, it will require clear and unambiguous language from the legislature to adopt such a meaning. In order for an argument informed by the principle of legality to succeed, however, it must be established conclusively that the interpretation under dispute would actually result in fundamental rights being undermined. Again, based on the judgement in this case, Giggle does not appear to have advanced this argument before the Court.

It may seem obvious to some that if Tickle is classed as a woman, this will automatically mean that any service or space operating as female-only must by law allow Tickle to be admitted. But this is not necessarily the case. Discrimination law does not operate on the basis of rights of admission or inclusion. Being a woman does not confer an entitlement to be included within a women only group. If you have been excluded from a women-only app because you were abusive to other users, you cannot claim that being a woman means you should be entitled to use the app anyway. The real question here is whether the reason for your exclusion from the App engages an obligation contained within the Sex Discrimination Act.

This was one of the central points of divergence in this case. Giggle argued that Tickle was removed from the app on account of being male and that this therefore amounted to sex discrimination which could be justified by reference to the special measures provision which allows for discrimination on the basis of sex or gender identity if doing so is as part of special measures designed to achieve substantive equality between various groups including men and women or people who have different gender identities.

On Giggle’s argument, Tickle, being a man, was removed in a manner that constituted direct sex discrimination. This would ordinarily be unlawful but Giggle argued that it would not be under s 7D(1)(a) which permits discrimination in order to achieve substantive equality between men and women.

On Tickle’s argument, Tickle, being a woman, was removed from the App in a manner that constituted gender identity discrimination. This was initially advanced as both direct and indirect discrimination but the Court concluded that the thrust of the claim was indirect discrimination - a policy that put those with a particular gender identity at a disadvantage. It would then have been open to Giggle to argue either that the exclusion was reasonable under s 7B as a proportionate means of achieving a legitimate aim, namely the creation of a space for biological females only. Because Giggle did not present any arguments or submissions on this point, the Court concluded in Tickle’s favour.

This is very important: there is legislative scope within the Sex Discrimination for a Court to have concluded that the meaning of sex is not tied to biology, that Tickle is a woman, and that exclusion from the App was a proportionate means of achieving the legitimate aim of protecting the fundamental rights of biological women. The argument was not advanced and so the Court did not consider it. As a result, the principle of legality is of ambiguous applicability to this case. If Giggle wanted to argue that sex in the Sex Discrimination Act must mean biological sex because if it does not it will undermine the fundamental rights of biological women, it needed to show how the reasonableness provisions would not be sufficient protection on this construction. It didn't, so we are left without any judicial analysis on that point. Without first establishing that this interpretation undermines fundamental rights, the presumption in favour of interpreting legislation to be compatible with fundamental rights has nothing to add to this case.

In contrast, the second principle of statutory interpretation was applicable and was argued for by Tickle and the AHRC: removing the definitions of man and woman from the Sex Discrimination Act in 2013 was intended to have legal effect and that effect was to uncouple the meaning of sex from a biological definition.

The third general principle of statutory interpretation is that legislative history can be a guide to interpreting the meaning of statute. The fact that there was once a definition of man and woman that was tied to male and female matters. The fact that this definition was removed matters. The fact that the Act once referred to members of the opposite sex and that this was changed to refer to members of a different sex matters.

All of this will be taken into account against the general principle that legislatures intend to change the law when they legislate. The removal of these definitions and the changes that were introduced in 2013 must be intended to change the law with regard to the provisions that they amended. A generic change to allow for a new form of discrimination must be unpacked. It must be explained why these specific changes were made. The Court concluded, not unreasonably in my view, that these changes were intended to uncouple legal sex from biological sex for the purposes of the Sex Discrimination Act and that consequently, the recognition at state law of a legal sex change also changes sex for the purposes of the Sex Discrimination Act.

AAWAA has presented an interesting explanation for these changes: that they were intended solely to alter the law for the purposes of provisions relating to intersex status. This could well be true. Again, Giggle did not make any submissions to this effect, so the court was left only with the submissions made by Tickle and the AHRC to go off of.

Importantly, if this is true, it will not be by virtue of what some politicians thought they were doing when they enacted the amendments; it will be true because on a proper construction, following the principles of statutory interpretation, this is what the provisions mean.

Responding to AAWAA