A recent major gender identity discrimination case has hit the headlines. Roxanne Tickle, a transgender woman, successfully sued a female-only social media platform for gender identity discrimination in the provision of services. This was the first time a Court had consider a claim of gender identity discrimination.
Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960
Under section 5B of the Sex Discrimination Act it is unlawful to discriminate against a person on the basis of sexual orientation, gender identity or intersex status.
Ms Tickle, who has lived as a woman since 2017, has a female birth certificate and gender affirmation surgery. She claimed direct and indirect gender discrimination from the social media platform, Giggle for Girls and its Chief Executive Officer, Sall Grover. Ms Tickle alleged that she was unlawfully prevented from using the app in 2021 after the company and Ms Grover said she was a man.
To access the app, users had to upload a photo of themselves that was verified as female by AI gender detection software and then by Ms Grover. Ms Tickle was prevented from using the platform after initially being allowed to use it from February to September 2021. The app was closed in August 2022.
Following an unresolved complaint to the Australian Human Rights Commission in December 2022, Ms Tickle commenced proceedings in the Federal Court.
Before the Court, Giggle for Girls and Ms Grover claimed that only sex at birth could be a valid basis on which a person could claim to be a man or a woman.
Ms Tickle sought damages and aggravated damages amounting to $200,000. She claimed that ongoing mis-gendering by Ms Grover led her to develop chronic anxiety and occasional suicidal thoughts. In Court, Ms Grover said that even if a transgender woman presented as female, had general affirmation surgery, lived as a female and held female identity documents, she would still see her as a "biological male."
The respondent company and Ms Grover claimed that the Court's focus should be on "biological sex" rather than the fact that Tickle feels that "psychologically she is a woman."
The Court's findings
The Court found that "sex" as the term is used in the Sex Discrimination Act is changeable.
The Court found that Ms Tickle was subject to indirect discrimination when she was prevented from using the app because she "did not look sufficiently female." This requirement disadvantaged transgender women who did not meet that condition, including Ms Tickle. Ms Tickle also claimed direct discrimination on the grounds of "sex." This claim failed, with the Court noting that only one of the two claims can ever succeed in relation to an allegation of discrimination.
The Court ruled in Ms Tickle's favour, awarding her $10,000 in damages plus costs.
Key takeaways for employers
This case has implications for employers and potential treatment of employees who are transgender. Employers should exercise caution to ensure that they don't impose conditions that a transgender person cannot meet or satisfy such as height limitations, unreasonable requirements to disclose sensitive information or prohibitions on the use of changerooms. Employers should also ensure they take reasonable steps to prevent harm to transgender employees with appropriate diversity, inclusion and harassment training and policies.
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