When Tickle sued Giggle

Sex versus "gender identity" in the courtroom

“Let Women Speak” rally, Melbourne 2023. Photo by Natalie J. Russell

In 2018, Sall Grover returned to the Gold Coast after nearly a decade working as a screenwriter in Hollywood. She’d written romantic comedies — her own life, however, was nothing of the sort. Grover had worked as an entertainment journalist in Australia and in London; she was no flower. But in Hollywood she experienced sexual abuse and harassment on a scale that left her “a shell of a person.” Back home, and now in her mid 30s, she turned to therapy to recover.

“And it was my therapist who said, ‘you need a strong female support network in your life,’” Grover recalls. “She was right … that one sentence literally changed my life.”

The therapist’s advice sparked a business idea — a women’s-only networking app — and thereafter a chain of events that propelled Grover to the frontline of the existential battle between women’s rights and transgender rights. 

Today her battle reaches a showdown in the Federal Court which will be forced to adjudicate that most combustible question of our strange times, “what is a woman?” An Australian first, the case will also be closely watched overseas for possible rulings on a key international treaty on women’s rights and whether those rights extend to biological males identifying as women. 

The case has potential ramifications for the sanctity of women’s sport and female-only spaces and services, and even for whether ordinary people, who aren’t JK Rowling, can freely state “men aren’t women” without being charged with “hate” speech under revamped laws that force the belief that humans can change sex. 

**

The facts are simple. In 2020 Grover launched her networking app called “Giggle for Girls.” It was marketed as a platform exclusively for women to share experiences, find friends and flatmates, and speak freely in a “safe space.” People wanting access to the app had to upload a selfie, which was then run though an AI facial identification program to verify the potential user was female. 

One user of the app was Roxanne Tickle. Tickle gained access to the app in February 2021; the AI program had verified Tickle’s face as female. But when seven months later, Grover stumbled across Tickle’s selfie she saw a face she regarded as male, and blocked Tickle’s access. 

As it happens, Tickle is a trans woman. Given Tickle’s femaleness is a contested issue in this case — and I don’t wish to cause unnecessary hurt — I’m going to refer to this individual with the neutral pronouns “they/them.” Born male, Tickle, according to court documents, has been presenting as a woman since 2017, underwent “gender affirming” surgery in 2019 and in 2020 changed their Queensland birth certificate to female. Grover insists she did not know Tickle was trans when she blocked them from the app. 

Tickle is suing Giggle (the app is no longer operational) and Grover, its chief executive, alleging discrimination on the grounds of gender identity — confused? It’s okay, so was I. Let’s pull back a moment: the law in question is Australia’s Sex Discrimination Act, passed in 1984, to tackle women’s disadvantage relative to men. As per the title, the SDA outlaws discrimination on the grounds of sex, but it also allows for exemptions for special measures aimed at achieving “substantive equality” between the sexes. So, for instance, a domestic violence service is allowed to turn away men because not doing so would likely entrench women’s oppression. The Giggle app, Grover argues, meets the exemption criteria. 

So far so 1984. Then came 2013 when Australia’s first, and thus far only, government led by a woman removed from the SDA the legal definitions of “man” and “woman.” The SDA was also amended to prohibit discrimination on the grounds of “gender identity,” defined as … err. Well, in this case Tickle defines it as their “perceived gender identity” as trans. “Gender identity” under the SDA not only encompasses whether a person sees themselves as male, female or something else, but also how others see them. Here, Tickle argues they were discriminated against because they were seen as trans, which I’m guessing is a nice way of saying they were discriminated against for not “passing,” in Grover’s assessment, as female. But you want me to cough up the full statutory definition of “gender identity,” don’t you? Fine, knock yourself out: 

“gender identity” means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.

All good?

Tickle, who seeks damages and an apology, is not arguing discrimination on the grounds of sex; after all, they insist they’re a woman. Instead, they claim that in accessing the app they were treated less favourably than a “cisgendered” woman, meaning a woman who is not trans, meaning, I guess, a woman. The Giggle camp effectively dispute Tickle is any species of woman. 

Hence, a fascinating, irreconcilable dispute, impossibly named Tickle v Giggle. 

**

Australia’s Sex Discrimination Commissioner has submitted a legal opinion in the case, which confirms what some of us already knew but will likely surprise much of the population: under Australian law, sex, as in male and female, is effectively extinct as a concept. Most states, and indeed the Commonwealth, no longer regard humans as a dimorphic species. Sex is “not a biological concept,” not binary or immutable, she writes — but oh, what is “she”? In a sexless world, what is a Sex Discrimination Commissioner anyway?

The case has attracted international interest because Grover’s defence rests partly on the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), the international bill of rights for women, which Australia ratified in 1983. The federal government is empowered under the Constitution to pass laws that give effect to international treaties. The SDA was passed to give effect to CEDAW and protect women from discrimination — and “women,” Grover argues, means biological females. She argues the 2013 amendment to the SDA prohibiting discrimination on the grounds of”gender identity” is constitutionally invalid because it does not give effect to the treaty. 

Is this true — or has international law likewise embraced the contemporary mantra, “trans women are women”? The latter, says the Commissioner in her opinion. She concedes CEDAW did not define the term “women” in 1979 when the United Nations General Assembly adopted the treaty. (Reminds me of Ricky Gervais’ schtick in SuperNature: “You won’t find a ten-year-old tweet of someone saying, ‘Women don’t have penises.’ You know why? We didn’t think we fucking had to!”) Nonetheless, the Commissioner insists, the “commentaries” of the CEDAW Committee, a body of 23 international experts that interprets the treaty and monitors its implementation, “confirm” that “women” includes trans women — and that states should therefore take steps to ensure their protection.  

For a forensic dissection of the Commissioner’s arguments, you can read my post from last year. While it’s written with all the authority of one who studied a semester of international law in the early 1990s, I do note that even a rudimentary search of the terms “CEDAW” and “trans women” unearths trenchant critiques from international legal scholars that the treaty has an “identitarian,” “essentialist,” and “asymmetrical” character because it is concerned with the suffering “of one narrowly-defined group.” Namely, women. 

More significant than my dissertation is the view of Reem Alsalem, the UN Special Rapporteur on violence against women and girls, who would likely hold the title of the world’s chief TERF had JK Rowling not existed. Alsalem, a rare advocate for sex-based rights over self-declared gender, sought to intervene in Tickle v Giggle. 

She disputes the Commissioner’s interpretation of the CEDAW commentaries: these don’t endorse the “trans women are women” mantra, Alsalem argues. Where tension may arise between sex-based rights and rights based on gender identity, international law “does not endorse” an interpretation that subordinates the former to the latter, Alsalem writes in a submission she gave as “input” to the Australian Human Rights Commission at the Court’s direction. She has publicly asserted her “expectation” her submission would be brought to the Court’s attention.

**

Tickle has had her legal costs capped at $50,000, which the Grata Fund, a social justice not-for-profit, will reportedly pay. 

Grover says she has raised $440,000 of a $500,000 target through crowdfunding. There have been hiccups along the way: she was kicked off the payment processing platforms Stripe and Square because of unspecified “complaints.” 

She is looking ahead to a High Court challenge should she fail in the Federal Court — a likely prospect according to Emerita Professor Margaret Thornton, a discrimination law expert at ANU.  When I asked for her assessment of the case, Thornton replied by email that a finding against Tickle “would not accord with the extensive legislation and jurisprudence already existing in Australia that recognises the legitimacy of transgender.” 

“The weight of this extensive evidence would seem to tip the balance in favour of Roxanne Tickle.”

She said that even before the 2013 amendments to the SDA, “sex” had been used “in such a way to include a socially constructed or gendered understanding.” 

“For this reason, the word ‘gender’ rather than ‘sex’ now tends to be used in contemporary human rights and anti-discrimination legislation globally, including in UN documents. To limit the meaning of ‘sex’ to a biological interpretation that ignores this updated usage in a contemporary context would be bound to be seen as regressive.”

And here lies the fault-line: depending on your perspective, gender identity politics either aligns with the right side of history, or is a moment of madness, a fad, that will inevitably pass.

No prizes for guessing which camp I belong to — still, I admit I find this particular case challenging.

While I understand people cannot actually change sex, I’ve always thought it fair that people be allowed to change their legal sex should they undergo full surgical transition as Tickle reportedly has done. Not because I view surgery as a test of a male’s bona fides in desiring to be a woman; people are driven to do all sorts of things out of all sorts of unknowable motivations. No, I think surgery is a fair hurdle simply because it recognises sex is not some mystical, unpindownable feeling as gender ideologues would have us believe but an objective physical reality that dysphoric people can try to simulate to obtain comfort and legitimacy. According to this measure, Tickle, having had gender-affirming surgery, ought to be entitled to all the privileges of a real woman. 

On the other hand, my gut tells me the presence of a trans woman — any trans woman but especially one only recently transitioned — on the Giggle app constitutes a serious intrusion on the rights of female users. Plainly, there is little commonality of experience or perspective between the women and the trans woman. And then there’s the real world politics behind the individual case. Leaving Tickle to one side, as a movement, extreme transactivism is all about breaching female spaces in the name of liberation. Grover, whatever the ultimate ruling, is doing valuable work in shining a light on the whole damn mess — not that she ever set out for martyrdom.

But it’s complicated. In my humble submission.

On a lighter note, I’m sure I’m not the only one relishing the prospect of the public broadcaster being forced to report on the case thereby shattering its longstanding taboo on airing the conflict between women’s rights and trans rights. I trust ABC management has stocked up on pacifiers.