Federal Court of Australia: While considering the instant dispute wherein the applicant sued Giggle for Girls, a social media platform, for alleged unlawful gender identity discrimination in the provision of services, contrary to S. 22 of the Sex Discrimination Act 1984 (SDA); the Bench of Robert Bromwich, J.*, found that the evidence on record revealed that the applicant had faced Indirect Gender Identity Discrimination, as she was excluded from the use of the Giggle App because she did not look sufficiently female, according to the respondents. Therefore, the respondents were directed to pay compensation of $10,000 and legal costs to the applicant.
The Court further held that ‘Gender Identity’ comes within “other status” as stated under Article 26 of International Covenant on Civil and Political Rights, 1966 (ICCPR).
The Court, however, did not deem it necessary to answer whether the term “women” in Convention for the Elimination of All Forms of Discrimination Against Women, 1979 (CEDAW) includes transgender women.
Background:
In February 2021, the applicant downloaded the Giggle App, which had been marketed as being a means for women to communicate with one another in what was described as a digital woman-only safe space. The applicant undertook a registration process to gain access to the Giggle App, which included providing information and uploading a selfie.
The photograph provided to Giggle was assessed by third-party artificial intelligence (AI) software, designed to distinguish between the facial appearance of men and women. Subsequently, the applicant gained access to the Giggle App.
Between February and September 2021, the applicant had access to the Giggle App’s features and used it to read content posted by other users. In September/ early October 2021, the applicant logged on to the Giggle App but found that she could no longer post content or comment on other users’ posts or read comments on posts made by other users. The functionality of the Giggle App had become limited for her as a user. When she attempted to purchase premium features on the Giggle App, she received a “User Blocked” message.
She then contacted the respondents, stating that her access to the App’s features had been restricted. She received an initial email response from Giggle’s CEO who said that she would investigate the issue. The applicant sent follow up emails but received no further email response. The applicant further tried to call and text the CEO, using the number supplied in an earlier email. At some point, the CEO called the applicant back, but this call was missed and after that there was no further contact from the respondents. The applicant did not regain access to Giggle App.
Contentions: The applicant alleged that the respondents’ actions in removing her from the Giggle App constituted direct gender identity discrimination, or, in the alterative, indirect gender identity discrimination, as defined in Section 5B of the SDA. Both forms of discrimination are unlawful in various contexts under the SDA, including in work, education, the provision of goods, services and facilities, and so on.
Per contra, the respondents’ defense was that discrimination did occur, but not prohibited discrimination. They claimed that the applicant was discriminated against based on the sex, which they consider to be male, not gender identity. The respondents consider sex to mean the sex of a person at birth, and that this is unchangeable. Furthermore, the respondents challenged the constitutional validity of the gender identity discrimination provisions of the SDA inserted in 2013.
Court’s Assessment and Findings:
Firstly, the Court pointed out that the term ‘cisgender’ refers to a person whose gender corresponds to the sex registered for them at birth. That is to be contrasted with a person whose gender does not correspond with their sex as registered at birth, commonly referred to as ‘transgender’. The Court found both terms useful and convenient for deciding and discussing the relevant facts, and in accordance with the gender identity discrimination provisions in the SDA.
The Court noted that the applicant was of the male sex at the time of birth but is now recognised as being of the female sex by an official updated Queensland birth certificate, issued under the Births, Deaths and Marriages Registration Act. “This followed from, and was predicated on, sexual reassignment surgery, being the term used in the Qld BDM Registration Act, which will be used in these reasons”. The Court pointed out that the applicant’s updated birth certificate gave rise to an entitlement to be referred to by female pronouns. Accordingly, the Court decided to use the prefix ‘Ms.’ to refer to the applicant.
Considering the applicant’s assertion of gender identity discrimination, both direct and indirect discrimination as defined in S. 5B(1) and S. 5B(2) respectively, the Court pointed out that while both direct and indirect discrimination may be alleged in the alternative, only one of the two can ever succeed in relation to a given allegation of discrimination. The Court also clarified that the instant case only concerns discrimination in relation to the provision of services via the Giggle App.
The Court further elaborated that Direct gender identity discrimination is discrimination by reason of a person’s gender identity, or a characteristic that appertains to, or is generally imputed to, persons who have that gender identity. Indirect gender identity discrimination is the imposition, or proposed imposition, of a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging a person relative to another person or persons who have a different gender identity.
Taking note of the respondent’s contentions that sex means the sex of a person at birth, and that this is unchangeable, the Court found that the respondents’ arguments failed because the view propounded by them conflicted with judicial precedents going back over 30 years which established that, in its ordinary meaning, sex is changeable.
The Court further stated that respondents’ views also conflicted with the clear Parliamentary intention to prohibit discrimination on the ground of gender identity in certain contexts, contained in amendments to the SDA that took effect over a decade ago, in 2013.
Perusing the respondents’ claim that Giggle App, as a female-only app, was a special measure to achieve equality between men and women and was therefore exempt from the prohibitions on discrimination contained in the SDA, by the operation of Section 7D; the Court found that even if the Giggle App could have been considered a special measure to achieve equality between men and women, that would not have allowed the respondents to discriminate on the basis of gender identity, which is distinct from discrimination against women on the basis of sex under the SDA.
Vis-a-vis direct discrimination, the Court found that the evidence did not establish that the applicant was excluded from the Giggle App by reason of her gender identity, although it remains possible that this was the real but unproven reason. The necessary part of proving that action has been taken by reason of a person’s gender identity, and thus amounting to direct discrimination, is establishing that the alleged discriminator was aware of the person’s gender identity. The Court found that the evidence went no further than establishing that the applicant’s exclusion was likely to have been a byproduct of excluding those who were perceived as being men, using visual criteria that failed to distinguish between cisgender men and transgender women.
However, the Court found that the evidence did support the conclusion that indirect gender identity discrimination did take place because the applicant was excluded from the use of the Giggle App because she did not look sufficiently female, according to the respondents. The Court clarified that this finding applies only to the act of excluding the applicant from Giggle App. It does not apply to her not being readmitted due to the lack of evidence to explain this, or even to establish that any positive decision was made not to allow her readmission to the Giggle App.
The Bench further stated that it did not need to decide whether CEDAW grants protections only to women, and the word “women” in CEDAW only means adults who were female sex at birth, because the way in which the term “discrimination against women” is defined in CEDAW means it refers only to discrimination that places women in a less favourable position than men. It therefore does not cover the kind of discrimination that the applicant alleged in the instant case, which is- discrimination that placed her in the same position as men.
The Court further found that there was no inconsistency between the Births, Deaths and Marriages Act and the SDA. The two statutes can and do operate harmoniously.
Conclusions:
The Court concluded that due to being excluded from Giggle App, the applicant was indirectly discriminated against based on her gender identity.
The Court concluded that the respondents’ argument conflicted both with longstanding law as to how sex should be understood in the SDA, and the gender identity provisions of the SDA.
The Court further concluded the gender identity discrimination provisions in the SDA are valid because they are supported by S 51(xxix) of the Constitution (external affairs power) as an enactment of Australia’s obligations under Art 26 of the ICCPR.
Hence, the respondents were directed to pay compensation and costs, with a cap in respect of costs to do with the constitutional validity and statutory construction issues.
[Tickle v. Giggle for Girls Pty Ltd, [2024] FCA 960, decided on 23-8-2024]
*Judgment by Justice Robert Bromwich
