Federal Court of Australia Tackles Unprecedented Sex Discrimination Case with International ImplicationsThe Federal Court of Australia is set to hear a landmark case that tests the boundaries of the Sex Discrimination Act as it relates to CEDAW, with significant international consequences. The applicant, Roxanne Tickle, is biologically male and legally recognised as female on his Queensland issued birth certificate. He alleges that Giggle for Girls Pty Ltd, the respondent, has discriminated against him based on his appearance not aligning with societal expectations of women who are biologically female.
This case is the first of its kind and holds considerable international significance, as it is the first to scrutinise the application of the Sex Discrimination Act focus on eliminating gender stereotypes, in the context of CEDAW, to the harmful entrenchment of those same stereotypes by gender-identity ideology. The case’s outcome will be a touchstone for whether gender identity can be accommodated when it conflicts with sex-based rights in the digital age, especially in sex-specific spaces. It will potentially set a global precedent.
In its recently filed legal submissions and evidence, which includes expert evidence from Dr Helen Joyce, Dr Kathleen Stock and Dr Colin Wright, the respondent argues that its policy is in the spirit of CEDAW and hence the Sex Discrimination Act, by aiming to protect and promote women's rights and well-being by providing a safe, women-only space. This case, thus, stands at the crossroads of domestic legislation's implementation of international agreements promoting women’s rights and the international insidious advance of gender identity ideology.
The decision by the Federal Court will have far-reaching implications, likely influencing not only the Australian legal system but also international law and policy regarding the intersection of gender identity and sex-based rights. It will serve as a crucial reference for future legal frameworks and discussions on sex discrimination and sex-based rights, and their direct conflict with gender-identity ideology worldwide.
History and details of case
A male named Roxy Tickle, who identifies as a woman, has brought a human rights claim against Sall Grover for not permitting him to use her female-only networking app, Giggle. He initially filed the complaint last year, but withdrew, due to funding reasons. He has now filed again, way out of time and is claiming that by excluding him, Sall is discriminating against him on the basis of his gender identity, which is a protected attribute under the Sex Discrimination Act.
However, Sall actually hasn’t discriminated against him on the basis of gender identity at all, but on the basis of his sex which is also a protected attribute under the Act and in relation to which differential treatment between men and women is not discriminatory where this is necessary to protect or achieve equality for women.
Indeed the Sex Discrimination Act was enacted in 1984 primarily to give effect to the international Convention on the Elimination of Discrimination Against Women(CEDAW), by addressing discrimination and inequality women faced on the basis of sex, for example in relation to biological and reproductive capacities like pregnancy and family responsibilities, in employment, education, facilities and services, and so on.
But then, Julia Gillard’s government made amendments to the Act in 2013, making it unlawful to discriminate against a person on the basis of gender identity. The new amendments also removed the biological definitions of man and woman, and so woman can now include a biological male who has a female gender identity. Sex, and women’s rights and protections on the basis of sex, therefore become meaningless, as does the original intention of the Act. This has left us with a clear conflict between the sex-based rights of women and the rights of those claiming a gender identity.
Not only will this case be the first opportunity we’ve had to resolve this conflict and to test whether sex is still a protected attribute in Australia, but because the Sex Discrimination Act was created pursuant to constitutional powers to legislate regarding international laws, and there is arguably no basis for gender identity protections under international law and certainly not under the Convention the Act was originally meant to give effect to, there is an argument to be made that the current gender identity protections are unconstitutional.
This is huge, because if laws that undermine sex-based rights, such as gender identity protections, are found to be unconstitutional or otherwise unlawful, this could render invalid laws in every state giving effect to protections for gender identity, as these are subsidiary to federal laws. As a result, the sex-based protections for women and girls would be re-instated when it comes to their rights to female-only spaces, services, sports and so on.
It is all a bit complicated, but essentially, there has been a conflict between anti-discrimination protections for sex and gender identity since the Sex Discrimination Act was amended in 2013. This case is the first opportunity we’ve had to resolve this conflict and to test whether sex is still a protected attribute in Australia. Parliament has arguably acted outside its constitutional powers in legislating gender identity as a protected characteristic in the Sex Discrimination Act which was designed to protect against sex discrimination, as protections for gender identity have no basis in CEDAW or other international instruments.
Details of first hearing
Tickle asked for an extension of time to bring his case against Sall. Sall’s team have asked Tickle to prove that he has the funds to bring his case (competency issue).
Tickle asked for a cost capping order, so that if he loses, there will be a cap on legal costs that he’ll be ordered to cover.
First two issues will be dealt at next hearing on 28 April. Sall’s team have asked that the cost capping be dealt with separately. The reason for this is that her team will be challenging the constitutional validity of gender identity as a protected characteristic under the Sex Discrimination Act, which means all the Attorney Generals of Australia will need to be notified of the proceedings and be given the opportunity to make submissions and possibly even attend the hearing and give evidence. In other words, this case has the potential to be monumental in terms of size and significance.
Judgement from Hearing: April 28 2023
Justice Bromwich has granted leave for Tickle to to bring his case against Sall personally and Giggle for Girls Pty Ltd. Cost capping has been awarded in the sum of $50,000, details of which will be posted soon. The trial date has now been set for April 9, 2024.
Importance of female-only spaces
The importance of single-sex spaces is universally recognised. The fact that we even have them acknowledges the biological sex differences between men and women, women’s inherent physical vulnerability relative to men, and the need to protect women’s rights, safety and privacy. Allowing men to self-identify as women and access women-only spaces, services and activities, has resulted in countless stories of harm all around the world, including in Australia. This ranges from women being excluded from their own sports, to women being sexually attacked in female-only spaces like prisons, refuges and hospital wards, to women being subjected to abuse, loss of employment and legal action for refusing to accept men can be women.
Women and girls have a right to feel safe and to be safe in services, facilities and activities that are intentionally dedicated to them.
Girls should be able to use intimate spaces like bathrooms in school without having to share these with male peers. Women who are detained in a vulnerable environments like a prison should not be locked up with male rapists, like is currently happening in Victoria. Women who are victims of male violence should be able to access a women’s refuge service without having to share these with men claiming to be women. Women and girls of all ages and ability should be able to fairly and safely participate in female-only sport. All organisations need to be legally allowed to say “no” to any male trying to access a part of society set aside for women and girls without the threat of legal action.
Women fought long and for sex-based rights and protections and these must not be displaced by men self-declaring a gender identity, which will then allow them to enter women’s spaces and services that they would have previously been excluded from on the basis of sex.
S51 Heads of Power - plenary and purposive laws with respect to making lawsThe Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:….
S51(xxix) external affairs power – can make laws with respect to international concerns such as treaties, conventions and agreements to which Australia is a party i.e. CEDAW
Sex Discrimination Act
The Sex Discrimination Act (Cth) was successfully enacted in 1984 to eliminate discrimination against women and to achieve equality with men in the public sphere.
The purpose of the legislation was to eliminate discrimination against women on the grounds of sex, marital status and pregnancy in the areas of employment, accommodation, education, provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs, and to prohibit sexual harassment in the workplace and educational institutions.
Objects of Act
The objects of the Act were to give effect to certain provisions in the UN Convention on the Elimination of Discrimination Against Women (CEDAW) and other international instruments; to promote recognition and acceptance within the community of the principle of equality of men and women in all facets of political, social, economic and cultural life . CEDAW is concerned with the elimination of discrimination against women specifically on the basis of sex, not discrimination on the basis of sex generally.
Australia was a signatory to CEDAW in 1980 and ratified in 1983.
Review of the preparatory work supports the proposition that the Convention sought to vindicate the principle of equality by creating obligations for State Parties to eliminate discrimination against women by placing theirr ights on an equal footing with the rights of men.
CEDAW was drafted in its entirety into the Act as a schedule, which is regarded as part of an Act, therefore it is part of Australian law and may be considered in interpretation of the Act. The interpretative principles to be applied are those recognised by international law as codified in the Vienna Convention on the Law of Treaties (1969) Articles 31 and 32 with the text of the treaty given primacy, but refer to context, object and purpose for interpretation.
The Act recognised women were subjected to discrimination on the basis of the biological and reproductive capabilities of their sex class by explicitly addressing discrimination that arose from the categories of sex, marital status, pregnancy, potential pregnancy, breastfeeding or family responsibilities that result in “economic and social disadvantage, and a significant impediment to the exercise by Australian of fundamental rights and freedoms” as evinced by deeply embedded structural inequalities.
The legislation provides that discrimination on the basis of a specified ground, attribute or status is unlawful not only if it is directly based on that ground, attribute or status, but also if it is based on a characteristic appertaining generally to those of the relevant status or attribute, or is based on a ground or attribute generally imputed to persons with that status.
Exemptions are available if a condition, requirement or practice has or may have a disadvantaging effect if it is reasonable under the circumstances, or if the measures are for the purpose of achieving substantive equality between the protected attribute and a comparator, further fortified by CEDAW Article 4.
The lawful exemptions in the Act allow services or facilities that are needed exclusively for members of onesex, including where sex is a genuine occupational qualification (s30), for women in relation to pregnancy or childbirth (s31), services that can only be provided to members of one sex (s32), student or employee accommodation (s34), residential care of children (s35), voluntary bodies (s39), religious educational institutions (s38), sport (s42), combat duties (s43) and others.
Amendments were made in 2013 that made it unlawful to discriminate against a person on the basis of sexual orientation, gender identity and intersex status, as well as same-sex couples under the definition of marital or relationship status. It is inarguable that this provided landmark protections for LGBTI people.
“Gender identity” became a protected attribute on separate grounds for discrimination via s5B, with the definition inserted into s4 procured from the Yogyakarta Principles:
“gender identity is the genderrelated identity, appearance or mannerisms or other genderrelated characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth”.
Amendments Ultra Vires
The definition was sourced from the Yogyakarta Principles which were devised by a group of private individuals, human rights campaigners, lawyers and functionaries and they do not have legal power or effect either internationally or within Australia.
The Yogyakarta definition is circular as it relies on itself to define itself, and “sex” and “gender” are not defined in the Act or in CEDAW. To ascertain construction, reference to Explanatory Memoranda as extrinsic material to discover underlying purpose or object, and confirm the ordinary meaning that was intended, the expressed intention of legislature regarding s5B was to “provide maximum protection for gender diverse people”, including the way they express or present their gender, recognising that a person may not identify as male or female, and acknowledged discrimination may be caused by the discord between the person’s gender presentation and their identity”.
This explanation raises further questions rather than providing clarity. If ambiguity is present, recourse to reports of parliamentary inquiry or committees is permissible. The Principles were acknowledged by the Senate Standing Committee as having no statutory power in Australia, even though there were calls to include them as “relevant international instruments” by the Human Rights Law Centre.
“[T]he Yogyakarta Principles have no legal force either internationally or within Australia. They were developed by a group of human rights experts, rather than being an agreement between States”.
According to the Committee, the purpose of the inclusion was to extend the grounds for protection against discrimination by introducing these new protections on the basis of “gender identity”, rendering the discrimination unlawful in the same circumstances as the other grounds already covered by the SDA, the meaning of “gender identity” is obfuscated.
The AHRC and Law Council of Australia supported the changes to the SDA by referencing the eight international conventions that underpin the AHRC. However, none of these instruments refer to gender identity, they only deal with discrimination in relation to biological sex, no human rights agreement specifically deals with gender identity, instead they rely on the Yogyakarta principles which have no status in international law.
Despite this, YP have been shopped around to international bodies and legislatures to be ratified, and they have been rejected by the UN on multiple occasions. Through protracted and strategic efforts of transgender activists the definition is endorsed to legislative and regulatory bodies as obligations by which they must be bound, and have thus made their way into Australian legislation.
YP have been relied on by various Australian states, such as VIC and most recently by the Queensland Human Rights Commission at the parliamentary inquiry into Attorney General Shannon Fentiman’s BDMR amendment bill for sex self ID.
One of the original 29 YP signatories (majority men and women pretending to be men “transmen”) Canadian born academic Robert Wintemute, Professor of Human Rights Law at King’s College, London renounced the YP and is now a trustee for LGB Alliance. He says women’s rights were not raised or considered during the meeting, and a “key factor in my change of opinion was listening to women”.
The meeting in Yogyakarta in 2006 was hosted by Canadian company Allied Rainbow Communities International (ARC International). ARC international is funded by Arcus Foundation, an international charitable foundation focused on issues relating to LGBT rights and social justice founded by Jon Stryker, heir to the multi-billion dollar Stryker Corporation medical supply company.
Removal of the words “woman” and “man”
The original SDA Act recognised women were subjected to discrimination, and consequently provided lawful protections that were fortified with the express inclusion of the meanings of man and woman: woman means a member of the female sex class irrespective of her age, and man meaning a member of the male sex class irrespective of his age.
The amendments removed the terms man and woman from the Act with the intention that they will take their ordinary meaning to the extent that they appear in the Act, and to ensure they are “not interpreted so narrowly as to exclude, for example, a transgender woman from accessing protections from discrimination on the basis of other attributes contained in the SDA”, with recourse to the dictionary as an accepted technique if required.
The effect of this is that the ordinary meaning of the words as based on the reality of biological sex has been replaced in favour of an interpretation where “woman” now includes a biological male who may have a gender identity that causes him to identify as a “transwoman” which is absent meaning in the Act and extrinsic materials but under the ordinary meaning is a “male to female transsexual” according to Oxford Dictionary. However, according to Stonewall UK is a person “assigned male at birth but identifies and lives as a woman” , which begs the curious question as to what it means to “live as a woman”.
S5 Sex and S5B Gender Identity Construction
The function of the court is to construe the intention of legislature through the words used in a statue by the application of the accepted canons of construction.
A construction that promotes the purpose of the Act is to be preferred, rather than one that does not advance its purpose or object, even if there is no ambiguity, with the ascertainment of legislative intention via the object or purpose underlying the legislation, and to determine meaning in light of that. This purposive approach is applied by adopting an interpretation of the words that is consistent with that purpose (Heydon’s case) by looking at the statute as a whole.
Context is considered from the beginning, has wide meaning, including the mischief it is remedying by reference to extrinsic materials.
Despite “sex” not being defined in the Act or the Convention, the purpose of this section in light of the context of the Act, upon review of extrinsic materials such as the treaty, the explanatory memorandum and the second reading speech of the affected Act is to eliminate the “mischief” - discrimination, both direct and indirect -towards women on the basis of their sex. This protected attribute has not been disturbed by the 2013 Amendments.
S5B Gender Identity
This provision mirrors the words of s5, replacing “sex”with “gender identity”, and is an expressly protected attribute in the objects of the act. The purpose is to eliminate, as far as is possible, direct and indirect discrimination on the grounds of the protected attribute in the same areas that apply as per s5. This was in response to the high levels of discrimination faced by the LGBTI community, and the lack of protections for gender identity in Commonwealth legislation.
Sex and Gender Identity Definitions
The function of definitions is to provide aid in construing statutes, by reading into the text of the substantive enactment and exercise construction to address logical infelicities.
Neither the Act, nor other Commonwealth laws, define either “sex” or “gender”, but the 2013 Explanatory Memorandum regards them as different concepts for the purpose of the section with “gender” not being used a synonym for “biological sex”, particularly as the definition of “gender identity” relies on recognition of “birth sex”. Neither “gender”, nor “gender identity” are mentioned in CEDAW.
Words absent definitions are given their plain and ordinary meaning, with recourse to the dictionary as an accepted technique. If the ordinary meaning of “sex” is relied upon, with recourse to the dictionary, it means “either of the two main categories (male and female) into which humans and most other living things are divided on the basis of their reproductive functions”.
The definition of “gender identity” is found in s4 of the Act, its construction is circular, in that it relies on itself to define itself and results in a problematic logical fallacy. In the absence of definitions for “gender”, or “sex”, “gender identity” it is defined as “gender-related identity”, “appearance” and “mannerisms” or “other gender-related characteristics”. The Explanatory Memorandum describes it as a reference to a person’s identity and how they present and are recognised within the community, based on name, outward appearance, mannerisms and dress, and recognises birth sex and gender may not align, or may be rejected altogether.
The meaning has scope to be applied to any “appearance” or “mannerisms” or “characteristics”, with or without regard to the person’s birth sex, and no explanation as to these elements. A person could claim discrimination on the basis of subjective, ambiguous and undefined features– their name, how they choose to visually present themselves, or how they speak or behave. It could be implied that these elements are demonstrative of culturally relative sex-based stereotypes, contrary to Art.5(a) of CEDAW which expressly provides for the elimination of prejudice and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.
This is compounded by both the view that one’s gender identity is regarded by its proponents as being “self-defined”, and that it labours under the assumption that each person has a deeply felt internal and individual sense of gender. Essentially, the section introduces a subjective category of a self-declared personal identity as a protected attribute that relies on stereotypes contrary to the purpose of the legislation.
Removal of the definition of the words “woman” and “man”, as it pertains to the legislation, means each category could now be expanded to include persons of the opposite sex. Each sex could have expressly excluded those of the other sex under the affected Act, but now that transgender women are able to rely on the protections as they relate to women, there is no threshold for males who may choose to identify into the category of woman by claiming a “gender identity”. The “plain and ordinary” meaning of these words have been rendered absurd or meaningless as it now includes persons heretofore expressly excluded by the statutory definition, and under this law they can now overcome exclusion based on a self-declared identity.
By inserting the gender identity provision, biological males will now be able to claim the rights privileges and protections, and access to services previously granted to biological women via s5, effectively rendering women’s protections meaningless. The intention of the original Act, to protect biological women from discrimination by virtue of their sex, has now had its integrity compromised, its purpose subsumed and clearly and distinctly gives rise to a conflict of rights between women and those claiming a gender identity.
The inclusion of the gender identity protection provisions have created conflicts within the interpretation and implementation of laws, guidelines and policies, the provision of services, and certain rights, privileges and protections heretofore granted to women under the law on the basis of sex. Highly contentious circumstances between biological women and those claiming protection under a gender identity have arisen in consideration of whether the category of sex or gender identity prevails in particular circumstances.
Analysis of the relevant extrinsic materials at the time of the SDA Amendments, reveal that the impact of the new protections on the existing protections for women on the basis of sex were not considered at all. In the SOGIIS Explanatory Memorandum women as a biological sex and protected category under the affected Act are not mentioned once, despite the entirety of the purpose and objective of the affected Act was to eliminate discrimination against them.
In the HRAD Committee Report, the submissions that are referenced in the body of the report were all in favour of the gender identity provisions and it is acknowledged that many submitters were in favour of their inclusion, those in opposition objected primarily on a religious basis, rather than from a women’s interest perspective.
Professor Sheila Jeffrey’s objected on the basis that inclusion of gender identity could “create a clash of rights between male-bodied transgenders and those disadvantaged on the basis of sex, namely women”. Jeffrey referenced legal challenges where trans-identified males successfully sought access to spaces previously reserved for women, including prisons.
Constitution S109: Inconsistency of laws
When a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
State laws enacted for the purpose of gender identity, gender or transgender would therefore be invalid if they are inconsistent with the SDA.
Federal government has the constitutional authority to implement CEDAW, so state legislation that derogates or undermines sex based rights, such as the gender identity protection provisions, would be inconsistent with Commonwealth legislation.
In the TvG matter, women and girls (females) are discriminated against on the basis of their sex due to gender identity. Women and girls are having their right to male free spaces when they're vulnerable intruded upon by biological males who claim a female gender identity. The male's gender identity is displacing women's hard-fought sex-based rights to vulnerable spaces.
It is an egregious affront to women and girls that rights fought for over centuries are being displaced by a male self declaring a gender identity that gives him licence to enter into spaces where he was previously excluded on the basis of his sex.
Should the T v G matter proceed, it would force the situation that all state attorneys general would intervene as it has the capacity to impact state and territory law pertaining to gender or gender identity.
Co-interpretation Statutory Principle
The co-interpretation principle declares that amending acts to an existing, or affected, acts are to be regarded and read together as one connected and combined statement of the will of parliament and may change the context of the affected Act.
However, the 2013 amending Act is statutorily precluded from affecting any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act.
In practicality, this is not the case with institutions and government departments choosing to favour a pro-gender identity interpretation over one which considers women, and which explicitly fail to consider the statutory rights and protections expressly created for women by the SDA. This could be argued to be contrary to statutory interpretation obligations as the objects, purpose and constructions of the statutes of the sex based protections remain undisturbed, and there is no evidence that the legislature intended to reform the Act so broadly it would extinguish women’s sex based rights.
ArticlesLane B “Transgender Goals Risk Alienating Female Players” 22 June 2020 The Weekend Australian
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AB v Registrar of Births, Deaths and Marriages (2007) 162 FCR 528
Applicant A v Minister for Immigration (1997) 190 CLR 225
Attorney-General v Lamplough (1878) 3 Ex D 214
Bainbridge v Minister for Immigration and Citizenship FCAFC2
CIC Insurance v Bankstown Football Club (1997) 187 CLR 384
Cody v JH Nelson (1947) 74 CLR 629
Commissioner of Police v Kennedy  NSWCA 328
Commissioner of Stamps (SA) v Telegraph Investment (1995) 184 CLR 453
Cooper Brookes (Wollongong) Pty Ltd v Cmr of Taxation (Cth) (1981) 147 CLR 297
Gardner Smith v Collector of Customs (VIC) (1986) 66 ALR 377 [383-4]
Koowarta v Bjelke-Peterson (1982) 153 CLR 168
Mills v Meeking (1990) 169 CLR 214
Minister for Immigration and Citizenship v SZJGV  259 ALR 595
Norrie v NSW Registrar (2013) NSWCA 145
DPP v Starr  NSWCA 315 
Pambula District Hospital v Herriman (1988) 14 NSWLR 387
R v Peters (1886) 16 QBD 636
Law Council of Australia, submission to Senate Committee on Legal and Constitutional Affairs Inquiry into Sex Discrimination Act Sexual Orientation Gender Identity Intersex Status Bill 2013
Professor Sheila Jeffreys, Submission to Public Consultation on HRAD Bill 21 December 2012
Senate Legal and Constitutional Affairs Legislation Committee Sex Discrimination Act Sexual Orientation Gender Identity Intersex Status [Provisions] 2013
Senate Legal and Constitutional Affairs Legislation Committee – AHRC March 2 2020
Senate Standing Committee on Legal and Constitutional Affairs exposure draft for Human Rights and Anti-Discrimination Bill 2012 (Cth)
Sex Discrimination Amendment (Sexual Orientation Gender Identity and Intersex Status) Bill 2013 (Cth) Explanatory Memorandum
Sex Discrimination Act Bill (1983) Second Reading Speech
Sex Discrimination Act Bill (1983) Explanatory Memorandum
Acts Interpretation Act 1901 (Cth)
Sex Discrimination Act 1984 (Cth)
Sex Discrimination Amendment (Sexual Orientation Gender Identity and Intersex Status) Act 2013 (Cth)
UN Convention on Elimination of Discrimination Against Women (CEDAW)
Oxford Dictionary: www.lexico.com
Stonewall Glossary of Terms: https://www.stonewall.org.uk/help-advice/faqs-and-glossary/glossary-terms#t
My case is likely to have far reaching consequences. This is the first time that the gender amendments have been tested in a court of law. This case will not only benefit all Australians, but international law and policy by bringing clarity to a very important part of the law. Be part of it, if you can. There really is no contribution that is too small.
All of the donations made via this crowdfund are by way of gift. All of the monies raised via this crowdfund, less bank charges and processing fees, will be used to pay my legal fees and related costs in respect of my legal defence in the Tickle v Giggle case currently before the Federal Court.
All of the funds raised will be used exclusively to cover my legal fees and related costs for this case only (and any appeals that may be necessary). If, however, at the conclusion of this case, there are excess funds remaining, I will donate those funds to other gender critical crowdfunders and causes.
I will not keep any of the funds raised.