UN Special Rapporteur comments on Tickle v Giggle

Reem Alsalem, the UN Special Rapporteur on Violence Against Women and Girls has released a statement commenting on Tickle v Giggle. In it, she expresses grave concerns at the consequences of this decision for the rights of women and girls to single-sex services and spaces.

Alsalem notes that, while the Australian Sex Discrimination Act distinguishes between sex and gender identity, that is abandoned in practice. That certainly appears to be the case based on the decision in the Tickle v Giggle, at least in cases where an individual has been legally recognised as having changed sex. Gender identity discrimination provisions do not entail a change in legal sex, but their operation is altered to the extent that one’s sex is recognised as having changed. If Tickle was recognised as a man for the purposes of the Sex Discrimination Act, there would still be scope for gender identity discrimination as distinct from sex discrimination in circumstances where Tickle was treated less favourably than a similarly situated man who does not identify as a woman (in the UK this can be seen in the case of Green v Secretary of State for Justice).

Nevertheless, Alsalem is correct to note that in the context of this case, there was a severing of the legal concept of sex from the biological concept of sex. One consequence of this was the conclusion from the Court that CEDAW is not relevant for this case. The reason why CEDAW was raised at all was as a matter of constitutional law which requires federal legislation to be based on some constitutional authorisation, the federal parliament being limited in its legislative capacity. The Sex Discrimination Act is underpinned by the Commonwealth legislative power which permits the federal parliament to legislate to incorporate an international treaty. This was initially CEDAW but that was expanded to include the ICCPR because the ICCPR contains a generic provision referring to discrimination on the basis of ‘other status’. This means that even if the gender identity provisions in the Sex Discrimination Act cannot plausibly be said to constitute an incorporation of CEDAW, as Giggle’s team argued, they could be said to constitute an incorporation of the ICCPR and therefore are not unconstitutional.

Importantly, the judge in Tickle v Giggle concluded that the gender identity provision could not be plausibly interpreted to constitute an incorporation of CEDAW, regardless of whether CEDAW defines woman by reference to biology or identity. This is because CEDAW is about competing discrimination that disadvantages women at the expense of men and the court concluded that the gender identity discrimination provisions are about competing discrimination between classes of men and women. If Tickle were legally a man, the gender identity provisions would compare any treatment Tickle experienced to how a man who didn’t identity as a woman would have been treated. If Tickle were legally a woman, the gender identity provisions would compare transgender women to ‘cisgender’ or non-transgender women: a woman who does not have the status of transgender woman. Neither of these possibilities could be said to be an incorporation of CEDAW.

This being the case, however, Alsalem has made an important intervention to emphasise that CEDAW might still be relevant to a case such as this, because, even if the gender identity discrimination provisions are not underpinned by CEDAW, the outcome of this case could have profound implications for the rights of women and girls. This could potentially put Australia in breach of CEDAW, depending on whether recognition of Tickle as a woman has any concrete implications for female-only services and spaces. Alsalem puts this point forcefully:

“where tension may arise between the right to non-discrimination based on sex and non-discrimination based on gender identity, international human rights law does not endorse an interpretation that allows either for derogations from the obligation to ensure non-discrimination based on sex or the subordination of this obligation not to discrimination based on sex to other rights”

She also notes that the Sex Discrimination Act contains provisions which could potentially justify gender identity discrimination in order to maintain single-sex services but that these were unfortunately not relied on in this case. We therefore do not have any clear indication of whether the maintenance of female-only services, defined by reference to biology, could constitute a proportionate means of achieving a legitimate aim. If they do not, Australia may be in breach of its international obligations under CEDAW. Without submissions made to justify indirect gender identity discrimination, we have no clear indication of what the law does or does not permit in the provision of single-sex services.

While Giggle’s team made extensive arguments in relation to special measures, these were deemed inapplicable by the Court because Tickle was recognised in Australian law as a woman. There therefore needed to be some legal arguments advanced in the form of detailed written submissions to address the reasonableness defence to indirect gender identity discrimination. This is a requirement under the Sex Discrimination Act if one wishes to rely on the reasonableness defence because the statutory burden of establishing the defence rests on the defendant. As such, the court concluded that:

“In closing submissions, [Giggle’s] lead counsel made reference to reliance on the provision, 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”

Reem Aslalem concluded her statement by expressing hope that, should this case move to an appeal stage, “all parties would consider applicable international laws and their obligations, as well as the circumstances in which exceptions can be applied.” It is unclear whether new substantive arguments can be raised on appeal, likely this will be at the discretion of the judge in question. Without these arguments being raised and addressed directly, Australian law will remain unclear on the question of female-only services and spaces, regardless of what it has to say about gender identity or gender recognition.