FEDERAL COURT OF AUSTRALIA

Giggle for Girls Pty Ltd v Tickle [2026] FCAFC 64

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The cross-appeal be allowed.

3.    The declaration made on 5 September 2024 that the appellants engaged in unlawful indirect discrimination against the respondent on the ground of her gender identity contrary to s 5B(2) of the Sex Discrimination Act 1984 (Cth) be set aside and in lieu thereof it be declared that:

The appellants, Ms Sally Grover and Giggle for Girls Pty Ltd, engaged in unlawful direct discrimination against the respondent, Ms Roxanne Tickle, on the ground of her gender identity, contrary to s 22 of the Sex Discrimination Act 1984 (Cth), when read with s 5B(1) of that Act, by:

(a)    excluding Ms Tickle from access to the Giggle App on the basis of her gender-related appearance;

(b)    refusing to restore Ms Tickle’s access to the Giggle App on the basis of her gender-related appearance; and

(c)    thereby treating Ms Tickle, who is a transgender woman, less favourably than a person designated female at birth seeking access to the Giggle App.

4.    Order 2 of the primary judge’s orders made on 23 August 2024 be varied so that the appellants are to pay to the respondent a sum of $20,000 within 60 days.

5.    The appellants pay the respondent’s costs of the appeal as agreed or assessed, up to a maximum of $50,000.

6.    The cross-respondents pay the cross-appellant’s costs of the cross-appeal as agreed or assessed, up to a maximum of $50,000.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1 This is an appeal from the decision in Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 (primary judgment or PJ).  The primary judge held that the appellants, Giggle for Girls Pty Ltd (ACN 632 152 017) and Sally Grover (Ms Grover), the founder and chief executive officer of Giggle, engaged in unlawful, indirect discrimination against the respondent, Roxanne Tickle (Ms Tickle), in the provision of services contrary to s 22 of the Sex Discrimination Act 1984 (Cth) (SDA).

2 It is convenient at the outset to explain the sense in which certain terms are used in these reasons where the legitimacy of those terms was a matter of contest between the parties (as explained below).  Insofar as a term is defined in the SDA, I am bound by that definition.  Thus, the term “gender identity”, which is of central importance to this appeal, bears a statutory definition, namely, gender-related identity and gender-related characteristics including appearance. “Cisgender” is not a term used or defined in the SDA.  In common with the primary judgment, this term is used in these reasons in a purely descriptive manner to refer to a person whose gender identity is the same as their sex as registered at birth, in contradistinction to “transgender” which refers to a person whose gender identity is different from their sex as registered at birth.

3 Ms Tickle was assigned the male sex at the time of her birth.  Following sexual reassignment surgery, Ms Tickle was issued an updated Queensland birth certificate under the Births, Deaths and Marriages Registration Act 2003 (Qld) (Qld BDM Registration Act) that records her as being of the female sex.  Ms Tickle also uses, and is referred to by, female pronouns.

4 Ms Grover, and, by extension, Giggle, regard a person’s sex at birth as the only valid basis on which a person may claim to be a man or woman and do not accept that a person’s sex can be a matter for self-identification.  Ms Grover does not accept that a person who was assigned male at birth but subsequently transitioned genders medically, socially and legally by sexual reassignment surgery, through other modes of expression, and by self-identification, is a woman.  As a result, Ms Grover does not accept the validity or legitimacy of the word “cisgender”.

5 The primary judge held that Ms Grover and Giggle indirectly discriminated against Ms Tickle on the basis of her gender identity as a transgender woman by denying her access to the women-only online platform called “Giggle” (the Giggle App).  The Giggle App was a mobile phone digital software application marketed for social communication between women and originally conceived of as “a women-only safe space on the internet”: PJ at [5] and [95].  The Giggle App adopted a policy that excluded all people who were of male sex at birth, including transgender women.  Ms Tickle asserted it was a condition (described as the Imposed Condition) that, in order to access the Giggle App, a user must either be a cisgender female or determined as having the physical characteristics of a cisgender female on review of a photograph provided by the user during the application process.  Ms Tickle advanced allegations of direct and indirect discrimination as alternatives.

6 The Sex Discrimination Commissioner was granted leave at trial under s 46PV of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) to appear as amicus curiae at trial (that is, as a friend of the Court) to make submissions relevantly on matters of statutory construction.  As the primary judge explained, it follows that the Commissioner did not appear for, or with, either party in the proceeding and was not a party to the proceeding.  It is convenient also to note here that leave was granted to the Commissioner to appear on the same basis on the appeal and cross-appeal.  Leave to intervene on the appeal was also granted to the Lesbian Action Group and Equality Australia, but leave to intervene or appear as amicus was refused to the Free Speech Union and to appear as amicus, to the Australian Christian Lobby.  My reasons, with which Justices Abraham and Kennett have indicated that they agree, for so ruling are set out in Part 8 of these reasons.

7 The primary judge dismissed Ms Tickle’s claim to have been the subject of direct discrimination for the purposes of s 5B(1) of the SDA contrary to s 22 of that Act.  First, his Honour held that Ms Tickle had failed to establish that Ms Grover was aware of Ms Tickle’s gender identity as a transgender woman when she blocked Ms Tickle from the Giggle App.  Rather, the primary judge found that she was excluded only because “Ms Grover considered Ms Tickle had the appearance of a cisgender man”: PJ at [132]; see also PJ at [129], [131] and [133].  Thus, his Honour held that direct discrimination could not be made out because the evidence “did not establish that Ms Tickle was excluded from the Giggle App by reason of her gender identity”: PJ at [129].  Secondly, the primary judge held that the evidence did not establish that:  (a) subsequent messages from Ms Tickle made Ms Grover and Giggle aware of her gender identity; (b) any actual decision was made not to readmit Ms Tickle; or (c) there was any reason for non-readmission beyond the original reason for excluding her in the first place.  That original reason, as found by the primary judge, was that Ms Grover considered that Ms Tickle had the appearance of a cisgender male: PJ at [131]-[133].  Thirdly, and in any event, his Honour considered that direct discrimination “was not really, in substance, the case that Ms Tickle advanced”: PJ at [129]; see also PJ at [12(a)].

8 By contrast, the primary judge held that ignorance of Ms Tickle’s gender identity as a transgender woman was no defence to her alternative claim to have been subjected to indirect discrimination for the purposes of s 5B(2) of the SDA in the provision of services contrary to s 22: PJ at [134].  On this basis, his Honour upheld Ms Tickle’s claim to have been subjected to indirect discrimination by the initial act of excluding her from the Giggle App, finding that this was the substance of Ms Tickle’s case.  That case, as characterised by the primary judge, was based on a condition imposed for the use of the Giggle App that Ms Tickle was required to have the appearance of a cisgender woman: PJ at [12(b)], [129] and [134].  In so holding, the primary judge rejected, as a matter of statutory construction, Ms Grover and Giggle’s submission that the Giggle App was a special measure aimed at achieving substantive equality between men and women and therefore avoided, by operation of s 7D(2), being gender identity discrimination for the purposes of s 5B:  PJ at [85]-[86].  The primary judge also dismissed Ms Tickle’s claim of indirect discrimination insofar as it related to the decision not to readmit her to the Giggle App because of the “paucity of evidence to explain this, or even to establish that any positive decision was made not to allow this to take place”: PJ at [134].

9 The primary judge ordered Giggle and Ms Grover to pay Ms Tickle compensation in the sum of $10,000 pursuant to s 46PO(4)(d) of the AHRC Act for loss and damage suffered as a result of Ms Grover and Giggle’s conduct in breach of ss 5B(2) and 22 of the SDA, but held that aggravated damages should not be awarded save with respect to a limited aspect of the conduct of the trial by Ms Grover and Giggle.  Ms Grover and Giggle appeal against these orders on the ground that his Honour was wrong to uphold the claim of indirect discrimination for various reasons.

10 On 12 February 2025, Abraham J granted Ms Tickle’s application for an extension of time to file a cross-appeal.  By her notice of cross-appeal, Ms Tickle challenges the primary judgment on the basis that the primary judge erred in failing to hold that her exclusion from the Giggle App by Ms Grover and Giggle, and their refusal to readmit her subsequently, constituted direct discrimination contrary to ss 5B(1) and 22 of the SDA on the ground of her gender identity.  Ms Tickle also contends that the primary judge erred in his Honour’s award of damages including on the ground that his Honour erred in characterising the unlawful discrimination as indirect discrimination, and seeks an award of at least $30,000 in general damages and at least $10,000 in aggravated damages.  In the alternative, Ms Tickle submits that not only was her exclusion from the Giggle App correctly held to constitute indirect discrimination under s 5B(2) contrary to s 22 of the SDA by the primary judge, but his Honour should have made the same finding with respect to Ms Grover and Giggle’s subsequent refusal to readmit her.

11 For the reasons explained below, in my view the cross-appeal should be allowed, and the appeal should be dismissed.  In summary:

(1)    The primary judge’s construction of s 7D of the SDA is correct and, as a consequence, his Honour correctly held that the Giggle App is not a special measure for the purposes of s 7D.

(2)    I respectfully disagree with the primary judge’s finding that knowledge of a person’s gender identity as (relevantly) a transgender man or transgender woman is a necessary element of establishing direct discrimination under s 5B(1) of the SDA.

(3)    The primary judge erred in failing to uphold Ms Tickle’s claim of direct discrimination in excluding her from the Giggle App.

(4)    The primary judge also erred in failing to uphold Ms Tickle’s claim of direct discrimination when she was not readmitted to the Giggle App.

(5)    It necessarily follows from these matters that that the primary judge proceeded to assess damages on a materially wrong basis.  I adopt the reasons of Abraham and Kennett JJ in relation to the assessment of the award for damages and agree with their Honours that an award in the amount of $12,000 for general damages and $8,000 for aggravated damages should be made in substitution for the award made by the primary judge.

12 Finally, while this appeal raises issues on which there are differing views within the community, it is important to emphasise that the issues for determination by the Court involve the construction and application of provisions of the SDA.  The desirability or otherwise of that law is not a matter open to this Court to consider.  As the primary judge observed at [2]:

This Court is confined to determining, only to the extent necessary, the validity, meaning and application of the SDA, including in particular whether there has been a contravention of the proscriptions on gender identify [sic] discrimination.

13 Equally, it should be emphasised that this case is concerned with gender identity which is one form only of discrimination covered by the SDA, and with circumstances in which it has not been argued that any of the general exemptions under that Act apply.  The latter include general exemptions for services the nature of which is such that they can be provided only to members of one sex (s 32), and the exemptions applying to staff and students in religious educational institutions (s 38) and participation in sports in which competitors’ strength, stamina or physique is relevant (s 42).  As these general exemptions make clear – together with other provisions such as the reasonableness test in indirect discrimination cases (s 7B), the exclusion of special measures from the proscriptions on discrimination (s 7D), and the capacity to grant exemptions on application (s 44) – there are circumstances in which discrimination on the ground of gender identity and other attributes protected by the SDA are not unlawful under the SDA.  Ultimately, each case of alleged discrimination under the SDA will therefore fall to be determined in its own unique circumstances.

2.    FACTUAL BACKGROUND

14 The factual background to the present case was largely not in dispute and is helpfully set out in the primary judgment at [17]-[30] as follows:

17.    In about February 2021, Ms Tickle downloaded the Giggle App.  The Giggle App had been marketed as being a means for women to communicate with one another in what was described as a digital women-only safe space.  Ms Tickle undertook a registration process to gain access to the Giggle App, which including [sic] providing information and uploading a self-taken photograph of her face, commonly known as a selfie.

18.    The photograph provided by Ms Tickle to Giggle was assessed by third-party artificial intelligence (AI) software, designed to distinguish between the facial appearance of men and women.  The trial evidence from Ms Grover, which I accept, established that the AI software was deliberately set to less than its maximum reliability, so as to err on the side of inclusion of a user who identified as a woman rather than exclusion of a user because they were identified by the AI software as a man.  If that AI software accepted the photograph, access was granted to the Giggle App.  Ms Tickle gained access to the Giggle App.

19.    In the period between February and sometime in September 2021, Ms Tickle had access to the Giggle App’s features and used it to read content posted by other users.  In September or early October 2021, Ms Tickle 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.  That is, 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.  Her attempts to contact Giggle via the in-App contact form received no response.

20.    In October 2021, Ms Tickle sent a series of eight emails about being blocked to a general Giggle email address and Ms Grover.  Ms Grover responded by replying to the first of those emails, requesting that Ms Tickle provide her phone number.  That email from Ms Grover included, as part of her email signature block, a mobile telephone number.  Ms Tickle provided a mobile number by reply email, but says she did not receive any response, an assertion that is only correct if this is understood as meaning that no subsequent conversation or email response took place, because her affidavit evidence states that she later missed a call from Ms Grover.  In late October 2021, Ms Tickle tried to contact Ms Grover by SMS and two phone calls, at the number listed in Ms Grover’s email signature.  Other than the missed call, there was no response.

21.    On 5 December 2021, Ms Tickle made a complaint to the AHRC under s 46P of the AHRC Act, naming both respondents, and asserting that, by being given limited access to the Giggle App, she was being discriminated against on the basis of her gender identity.  The original complaint did not specify the provision of the SDA that she alleged had been breached.

22.    On 20 January 2022, the AHRC sent a copy of the complaint to the respondents.  On 3 March 2022, the respondents replied, declining to participate in AHRC conciliation processes.

23.    The Giggle App enabled there to be a later examination by a Giggle staff member of any photographs submitted, assessed and accepted by the AI software for the purposes of user access.  That staff member could reach a different conclusion as to whether a person was female, which could result in a user being denied access to the Giggle App.  A substantial number of persons whose photographs were accepted by the AI software were subsequently examined and were denied user access to the Giggle App.  Ms Grover’s evidence was that a large number of men had attempted to access the Giggle App.  However, given her belief as to what the word man means, it is unclear if this included transgender women, and if so, whether this formed any part of the reason for denying access.  This could have been tested or clarified in cross-examination, but was not.

24.    It is most likely that Ms Tickle was denied user access to the Giggle App as a result of a general review process by a natural person of the AI acceptances of registration, rather than by reason of her being singled out.  This was probably carried out by Ms Grover herself despite her having no specific recollection of having done so, but may have been done by someone else at Giggle, to the extent that such assistance was provided.  Again, this could have been clarified in cross-examination, but it was not.

25.    On 8 March 2022, the AHRC advised Ms Tickle that the respondents had declined to participate in conciliation.  On 5 April 2022, a delegate of the President of the AHRC provided Ms Tickle with notice that the complaint was being terminated pursuant to s 46PH(1B)(b) of the AHRC Act, on the ground that they were satisfied that there was no reasonable prospect of the matter being settled by conciliation.

26.    The making of the complaint to the AHRC and it being terminated enabled Ms Tickle to bring a gender identity discrimination proceeding in a designated Court, being either this Court or Div 2 of the Federal Circuit and Family Court of Australia (formerly the Federal Circuit Court, and for convenience referred to by that name): see s 46PO(1) of the AHRC Act.

27.    Ms Tickle initially brought and then discontinued a proceeding in the Federal Circuit Court in the short period between June and July 2022, as explained in Tickle v Giggle [for Girls Pty Ltd [2023] FCA 553] No 1 at [4].  She then commenced this proceeding in this Court in December 2022, and was granted an extension of time for the bringing of this second proceeding for the reasons given in Tickle v Giggle No 1 at [5].

28.    In August 2022, between the end of the first proceeding in the Federal Circuit Court in June to July 2022 and the commencement of the proceeding in this Court in December 2022, Giggle ceased to make the Giggle App available to anyone.  The respondents asserted that this would remain the position unless and until their conduct was found to be lawful.  That intention was not challenged.  I therefore accept that to be the position, even if it might later change.

29.    In her amended statement of claim, Ms Tickle alleges, and the respondents admit, the following background facts:

(a)     Giggle is an Australian proprietary company, limited by shares, and is wholly owned by, and operated through, a holding company, WADD Holdings Pty Ltd.  However, the respondents deny that Giggle is a trading corporation or is subject to the SDA, including by reason of, relevantly, s 9(11) and (13), engaging the trading corporation aspect of the power in s 51(xx) of the Constitution.  As foreshadowed, I ultimately found that Giggle was a trading corporation at the time of the conduct the subject of this proceeding.

(b)    Ms Grover is the sole director and CEO of Giggle and was at all material times its controlling mind.

(c)    Ms Grover uses the Twitter (now X) social media platform, with the username Sall Grover and handle @[redacted], and describes herself as the “Founder and CEO of Giggle, a female social network”.

(d)    At all relevant times, Giggle owned and operated the Giggle App.

30.    The respondents principally deny any allegation of fact that describes Ms Tickle as a woman or any other allegation which directly or indirectly entails acceptance that this is so.  I am satisfied that this reflects a genuinely held belief by Ms Grover and thus by Giggle, rather than reflecting any malice towards Ms Tickle, although manifested in the use of language that is unfortunate and unnecessary.  However, that stance is not capable of meeting or denying the operation of the provisions proscribing gender identity discrimination if they are valid.

(Emphasis in the original.)

3.    REASONS FOR REFUSING THE APPLICATION FOR LEAVE TO AMEND THE NOTICE OF APPEAL

15 At the commencement of the hearing on 4 August 2025, Ms Grover and Giggle sought leave to file a draft amended notice of appeal withdrawing the following grounds:

(1)    ground 1(b) alleging that the declaratory judgment was not open on the pleadings;

(2)    ground 4 alleging error in an evidential ruling by the primary judge; and

(3)    grounds 5 and 6 challenging the primary judge’s finding that the amendments to s 5B of the SDA enacted by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) (2013 Amendment Act) were constitutionally valid, and that Giggle was a “trading corporation” for the purposes of s 51(xx) of the Australian Constitution.

16 Ms Tickle did not oppose the amendments withdrawing these grounds and leave to amend the notice of appeal to this extent was granted.  Importantly, it followed from the abandonment of grounds 5 and 6 that no constitutional issues were pressed on the appeal.

17 The draft amended notice of appeal also advanced a proposed new ground 4 seeking to challenge the primary judge’s findings on aggravated damages in the following terms:

The primary Judge erred in law and/or miscarried the discretion in awarding $10,000 in compensatory damages under s 46PO(4)(d) of the [AHRC Act], in circumstances where:

a.    there was no evidentiary foundation for the quantum awarded, including no medical evidence, no finding of psychological injury, and no separate award of general damages;

b.    the basis for the award rested on conduct (the Second Appellant’s response in cross-examination) that:

i.    was not found to constitute unlawful discrimination;

ii.    occurred in the course of litigation, under pressure and in the Respondents own case;

iii.    was not otherwise found to aggravate any proven loss;

iv.    the conduct relied upon did not fall within the scope of the complaint to the Australian Human Rights Commission, and the Court therefore lacked jurisdiction under s 46PO(3) of the AHRC Act to award damages in respect of that conduct;

c.    the primary Judge erred in principle by:

i.    treating subsequent litigation conduct as amplifying the distress caused by the pleaded contravention, in circumstances where s 46PO(3) of the AHRC Act requires the unlawful discrimination to be the same as, or substantially the same as, the conduct raised in the complaint;

ii.    taking into account an irrelevant considerations [sic], being conduct arising during cross-examination by the Respondent, in making the award;

iii.    failing to take into account a relevant consideration, namely the absence of compensable loss arising from the conduct relied upon to make the award; and

iv.    otherwise, making an award [that] was manifestly excessive and not reasonably open on the evidence,

such that the discretion miscarried in accordance with the principles in House v The King (1936) 55 CLR 499.

(New ground 4.)

18 Giggle and Ms Grover contended that the issues sought to be raised by the new ground ultimately reduced to a discrete point which, if necessary, could be addressed by filing written submissions within a short timeframe after completion of the hearing.  Giggle and Ms Grover also contended that if Ms Tickle succeeded on her cross-appeal in establishing error in the quantum of damages awarded by the primary judge, the Full Court would have to re-exercise the discretion to award damages.  In their submission, therefore, the issues raised by the new ground 4 were responsive to Ms Tickle’s submissions on the cross-appeal.

19 Ms Tickle opposed the grant of leave to amend the notice of appeal by the insertion of the new ground 4, given the prejudice that she would suffer if the last-minute amendment to the notice of appeal were allowed.  While Ms Tickle accepted that if she established error in the primary judge’s approach to the award of damages, the Full Court would be required to re-exercise the discretion to award damages and hear submissions from the parties as to the appropriate quantum of damages to be awarded, any such submissions would be made in the context of the cross-appeal and should not be “slipped” into the appeal.

20 The Court refused the application to amend the notice of appeal to include the new ground after hearing oral submissions at the start of the appeal, with the reasons for so ruling to be included in the final reasons for judgment.  I set out my reasons below with which Justices Abraham and Kennett have indicated that they agree.

21 First, the draft amended notice of appeal was received by Ms Tickle’s legal team at 9:00am on the (first) morning of the appeal which was listed to commence at 10:15am and was not accompanied by any application to amend or affidavit in support.  No adequate explanation was therefore given for the lateness of the draft amended notice of appeal.  In this regard, while Ms Grover and Giggle submitted that the new ground was raised in response to Ms Tickle’s attempt to seek an increase in the damages awarded at first instance in the cross-appeal, Ms Grover and Giggle had been aware of the cross-appeal for some time.  As Ms Grover and Giggle (correctly) accepted, this matter “could have been raised earlier”.  As such, Ms Grover and Giggle failed to explain their delay in seeking to raise the new ground.

22 Secondly, the various allegations set out in several subparagraphs comprising the new ground were not expanded upon in any written submissions, despite raising many potential issues.  Given these factors, it is clear that Ms Tickle could not fairly be required to address the new ground orally at the hearing.  Ms Tickle would also have been prejudiced if required to respond in writing after the hearing, given the cost cap of $50,000 per proceeding imposed by orders of the Court.

23 Finally, as explained at the hearing, it remained open to Giggle and Ms Grover to respond to Ms Tickle’s contentions on the cross-appeal.  Objections to any issues raised by Giggle and Ms Grover in the context of their submissions in response to the cross-appeal would be dealt with during argument on the cross-appeal.

4.    THE ISSUES

4.1    The issues arising on the appeal

24 As I explained above, the Full Court granted leave to amend the notice of appeal to the extent to which it withdrew certain grounds.  The remaining issues raised by the amended notice of appeal can be summarised as follows:

(1)    Whether the primary judge erred in finding that Ms Grover and Giggle had engaged in unlawful indirect discrimination on the ground of gender identity for the purposes of ss 5B(2) and 22 of the SDA because:

(a)    the impugned conduct did not constitute indirect discrimination (ground 1(a));

(b)    the imposed condition on which the judgment was premised was not proved (ground 1(c)).

(2)    Whether the primary judge erred in finding that “sex” for the purposes of the SDA is not a purely binary concept confined to biological gender at birth but is changeable and takes into account a range of factors and the operation of the Qld BDM Registration Act (ground 2).

(3)    Whether the primary judge erred in failing to find that:

(a)    the Giggle App was a “special measure” pursuant to s 7D of the SDA for the purpose of achieving substantive equality between men and women; or alternatively,

(b)    the imposed condition of requiring users to be of the female sex was “reasonable in the circumstances” for the purposes of s 7B(2) of the SDA;

and therefore did not constitute indirect discrimination for the purposes of ss 5B(2) and 22 of that Act.

(Ground 3(a) and (b) respectively).

25 Two further matters bear upon the scope of the issues raised by the notice of appeal that are conveniently addressed at this stage.

26 First, Ms Grover and Giggle did not substantively address ground 2 of the amended notice of appeal in their written submissions in chief.  Further, while this ground was subsequently addressed in their response to the submissions by the Lesbian Action Group (intervening) and in their oral submissions, Ms Grover and Giggle accepted that this was not a standalone ground of appeal.  Rather, they relied upon ground 2 in support of their construction of s 7D(1)(a) of the SDA.  Specifically, Ms Grover and Giggle submitted that the issue raised by ground 2 would arise only if the Court were to hold that a special measure to achieve substantive equality for men and women under s 7D(1)(a) did not extend to subgroups of men and women (such as women working in a particular industry), as opposed to a special measure aimed at achieving substantive equality for all women.  As Mr Hutley SC for Ms Grover and Giggle submitted (at T67.37-44), for example:

If 7D(1)(a) – to have a measure of 7D(1)(a), you have to be for all women, then I need to succeed that “women”, for the purposes of 7D(1)(a) means “natal women” … Women at birth.

(Emphasis added.  See also at T14.47-T15.43.)

27 Ultimately, however, as I later explain, I accept that a measure may be a special measure for the purposes of s 7D(1)(a) even if it is taken for the purpose of achieving substantive equality for a subgroup of women.  Consequently, it is unnecessary to resolve the question raised by ground 2 in order to resolve ground 3(a) of the notice of appeal.

28 Secondly, with respect to ground 3(b) of the amended notice of appeal, the primary judge held that Ms Grover and Giggle did not rely upon the reasonableness requirement for indirect discrimination in s 7B(1) of the SDA at trial.  Specifically at PJ [37] the primary judge held that:

The respondents’ pleaded defence does not rely on s 7B.   In closing submissions, their 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 required by s 7C.  I am therefore unable to understand how it is even conceptually able to be advanced that the imposed condition was reasonable in the circumstances, let alone be satisfied that the burden of establishing that this was so has been discharged.

29 Section 7B(1) applies only in the context of indirect (and not direct) discrimination and provides that:

(1)    A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 5A(2), 5B(2), 5C(2), 6(2), 7(2) or 7AA(2) if the condition, requirement or practice is reasonable in the circumstances.

30 Ms Grover and Giggle argued on the appeal that there was no requirement to plead s 7B because “[r]easonableness is always part of the case, because [s] 5B is always subject to [s] 7B.  In other words, it [is] always an issue, because if it’s reasonable, there is no discrimination” (T83.31-33).  They also argued that their submission “was rushed and it was the end [of the trial]” (T84.24)

31 However, these submissions overlook the need to seek leave to raise new issues on appeal and pay, with respect, lip service to the fact, as Mr Hutley SC for Ms Grover and Giggle properly accepted, that s 7C imposes the burden of proving reasonableness in the circumstances for the purposes of s 7B on the person who did the act.

32 The principles for determining whether leave to raise a new issue on appeal are well established and were recently summarised by the Full Court in Tredders Investments Pty Ltd as trustee for Warren Tredrea Trust v Channel 9 South Australia Pty Ltd [2024] FCAFC 164 (Perry, McEvoy and McDonald JJ) at [14]-[15]:

As a general rule, new issues should not be raised on appeal.  In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ stated (at 7-8):

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise.  In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at p. 438; Bloemen v The Commonwealth (1975) 49 ALJR 219.

Thus, it is contrary to principle to allow a party to raise a new argument which, “whether deliberately or by inadvertence, [they] failed to put during the hearing when [they] had [an] opportunity to do so”:  University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 483 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).

33 The principle in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 serves the public interest in the fairness and expedition of the administration of justice:  Tyson v Brisbane Market Freight Brokers Pty Ltd [1994] HCA 67; (1994) 68 ALJR 304 at 310-311 (McHugh J); see also H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348; (2000) 63 ALD 43 at [8] (Branson and Katz JJ).  Nonetheless, as their Honours in Tredders also held at [18], the principle in Coulton is not absolute.  It turns upon an assessment of where the interests of justice lie having regard among other things generally to the merits of the new point and whether the other party would have conducted its case differently at trial if the new point had been raised at that stage.

34 In my view, this is a clear case where it would not be in the interests of justice to grant leave to Ms Grover and Giggle to rely upon ground 3(b) for the first time on the appeal, given the following considerations:  (1) the burden of establishing that the Giggle App was reasonable lay clearly upon Ms Grover and Giggle; (2) the issue was never pleaded or otherwise put in issue save for an undeveloped reference to it in Ms Grover and Giggle’s closing submissions at trial; and (3) Ms Tickle would be prejudiced by the issue being raised for the first time on appeal in circumstances where, if the issue had been properly raised at trial, it would self-evidently have impacted on the manner in which Ms Tickle conducted her case at trial and the evidence which she might have led.  Leave to raise ground 3(b) should therefore, in my view, be refused.

4.2    The issues arising on the cross-appeal

35 Turning to Ms Tickle’s notice of cross-appeal of 19 February 2025, Ms Tickle alleges that Ms Grover directly discriminated against Ms Tickle, first, by her initial exclusion following a manual review of Ms Tickle’s selfie and, secondly, by refusing to re-admit Ms Tickle following her repeated requests for readmission.  Specifically, Ms Tickle alleges that:

(1)    the primary judge erred in not finding that Ms Tickle’s exclusion from the Giggle App constituted direct discrimination on the ground of her gender identity for the purposes of s 5B(1) of the SDA contrary to s 22.  The particulars of this ground are that:

(a)    the primary judge’s findings (at PJ [18]-[24], [91]-[94], [98]-[105], [111]-[118] [125]-[128] and [132]-[136]) “incontrovertibly supported” the conclusion that Ms Grover and Giggle had engaged in unlawful direct discrimination on the ground of Ms Tickle’s gender identity as Ms Grover and Giggle “were actuated to exclude her from the ‘Giggle App’ on the ground of [Ms Tickle’s] appearance”;

(b)    as a result, the primary judge ought to have found that Ms Tickle had been treated less favourably by Ms Grover and Giggle for the purposes of s 5B(1) in contravention of s 22;

(c)    the matters in (a) and (b) above are established by the primary judge’s related error in construing s 5B(1) (at PJ [74]-[78]) as requiring Ms Grover and Giggle to have actual, and not merely imputed, knowledge of Ms Tickle’s gender identity;

(2)    the primary judge erred in finding that Ms Tickle had conflated her claims of direct and indirect discrimination under s 22 of the SDA, and essentially abandoned any case of direct discrimination, as a consequence of which his Honour failed to find on the totality of the evidence that Ms Tickle’s exclusion from the Giggle App by Ms Grover and Giggle (PJ at [129]) constituted direct discrimination on the ground of her gender identity for the purposes of ss 5B(1) and 22; and

(3)    the primary judge erred in failing to conclude on the evidence, and having regard to his Honour’s findings at PJ [18]-[24], [91]-[94], [98]-[105], [111]-[118] and [125]-[128], that Ms Tickle not being “re-admitted” by Ms Grover and Giggle to the Giggle App (PJ [132]-[133]) constituted either direct or indirect discrimination on the ground of her gender identity for the purposes of ss 5B and 22 of the SDA .

(Cross appeal grounds 1, 2 and 3 respectively.)

5.    THE LEGISLATIVE FRAMEWORK

5.1    Principles of statutory construction

36 As the issues on the appeal and cross-appeal turn largely on questions of statutory construction, it is convenient to commence with the applicable principles of statutory construction before turning to the relevant provisions of the SDA.

37 The relevant principles of statutory construction are well established and were summarised in Vincentia MC Pharmacy Pty Ltd v Australian Community Pharmacy Authority [2020] FCAFC 163; (2020) 280 FCR 397 at [46]-[48] (Perry and Stewart JJ) as follows:

In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky), McHugh, Gummow, Kirby and Hayne JJ explained that:

69.    The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos [(1955) 92 CLR 390 at 397], Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

The importance of starting with the statutory context and text was recently emphasised by Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 in the following passage:

14.    The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose [citing Project Blue Sky with approval]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

Context “in its widest sense”, as referred to in this passage, includes “such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy”: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ) (cited with [approval] in SZTAL at [14]).  To have regard to context in this sense, as integral to the process of statutory construction irrespective of whether ambiguity or inconsistency exists in the literal text, accords with the mandate in s 15AA of the Acts Interpretation Act that the interpretation which best gives effect to the legislative purpose must be preferred to any other interpretation: Mills v Meeking (1990) 169 CLR 214 at 235 (Dawson J). As a result, as Dawson J also explained with respect to Victoria's equivalent to s 15AA, the approach required by interpretive provisions of this kind “allows a court to consider the purposes of an Act in determining whether there is more than one possible construction” (ibid); see also the discussion in Pearce D, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworths, 2019) … at [2.17]-[2.20]; Herzfeld P and Prince T, Interpretation (2nd ed, LawBook, 2020) … at [7.20]-[7.30].  That said, it must also be borne steadily in mind that, as Hayne, Heydon, Crennan and Kiefel JJ cautioned in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, “[h]istorical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention”.

38 It follows that, in the process of construing the text, the Court must have regard from the outset to the context and purpose of the provision, including considering legitimate secondary material:  see also Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] (the Court).  As Allsop CJ explained in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner [2020] FCAFC 192; (2020) 282 FCR 1 at [4]-[5]:

The principle is clear: Meaning is to be ascribed to the text of the statute, read in its context.  The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision.  The purpose and policy of the provisions are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material. …

There can be no doubt that the search for principle in the High Court reveals a settled approach of some clarity: R v A2 [2019] HCA 35; (2019) 93 ALJR 1106; 373 ALR 214 at [31]-[37].  The notion that context and legitimate secondary material such as a second reading speech or an Explanatory Memorandum cannot be looked at until some ambiguity is drawn out of the text itself cannot withstand the weight and clarity of High Court authority since 1985 …

(Citations omitted.)

5.2    Relevant provisions of the SDA

39 Turning to the SDA, in line with the preamble to the SDA, s 3 defines the statutory objects as, relevantly:

(a)    to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women and to provisions of other relevant international instruments; and

(b)    to eliminate, so far as is possible, discrimination against persons on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and

…

(d)    to promote recognition and acceptance within the community of the principle of the equality of men and women.

40 The relevant international instruments to which the SDA gives effect are defined in s 4(1) to include the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9) (a copy of the English text of which is set out in the Schedule to the SDA), the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23) and the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5).

41 As is apparent from the objects of the SDA, the SDA is beneficial and remedial legislation and ought, therefore, to be interpreted broadly in line with s 15AA of the Acts Interpretation Act 1901 (Cth) so as to promote relevantly the purpose of eliminating so far as possible discrimination on the ground of gender identity.  For example, by analogy the High Court held in AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390 at [24]-[25] in the context of considering the Gender Reassignment Act 2000 (WA) that:

the principle that particular statutory provisions must be read in light of their purpose was said in Waters v Public Transport Corporation [(1991) 173 CLR 349 at 359] to be of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation “the courts have a special responsibility to take account of and give effect to the statutory purpose”. It is generally accepted that there is a rule of construction that beneficial and remedial legislation is to be given a “fair, large and liberal” interpretation.

The Act acknowledges the difficulty under which certain members of society labour by reason of the disconformity between their belief about who they are, by reference to their gender, and the social-historical record of their gender at birth. It seeks to alleviate that suffering and the discrimination which such persons may face by providing legal recognition of the person’s perception of their gender.

42 Part I of the SDA addresses direct and indirect discrimination on a number of grounds, namely:

(1)    sex (s 5);

(2)    sexual orientation (s 5A);

(3)    gender identity (s 5B)

(4)    intersex status (s 5C);

(5)    marital or relationship status and family responsibilities (ss 6 and 7A respectively); and

(6)    pregnancy and potential pregnancy, and breastfeeding (ss 7 and 7AA respectively).

43 Division 1 (Discrimination in work) and Division 2 (Discrimination in other areas) of Part II of the SDA proscribe discrimination (including under s 22 of the SDA) on the basis of “gender identity”, as well as sexual orientation, intersex status and relationship status.  Protection against discrimination by reference to these attributes was introduced by the 2013 Amendment Act which came into operation and effect on 1 August 2013.  The Explanatory Memorandum to the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 (2013 Explanatory Memorandum) explained the protective purpose of the Bill:

There is substantial evidence demonstrating that discrimination against lesbian, gay, bisexual, transgender and intersex (LGBTI) people occurs in the community.  This discrimination occurs in a range of areas of public life, including work, commendation and the provision of goods and services.  This range of conduct is highly detrimental to LGBTI people, manifesting in barriers to how they carry out their day-to-day lives.

The purpose of the Bill is to foster a more inclusive society by prohibiting unlawful discrimination against LGBTI people and promoting attitudinal change in Australia.

44 At the same time and relatedly, the 2013 Amendment Act repealed the definitions of “man” and “woman”.  Previously, “man” was defined in s 4(1) of the SDA as “a member of the male sex irrespective of age”, while “woman” was defined in s 4(1) of the SDA as “a member of the female sex irrespective of age”.  The 2013 Explanatory Memorandum at [18] explained the legislative intention in repealing those definitions as follows:

These items will repeal the definitions of ‘man’ and ‘woman’ from subsection 4(1).  To the extent these terms appear in the Act, they will take their ordinary meaning.  These definitions are repealed in order to ensure that ‘man’ and ‘woman’ 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.

45 The 2013 Amendment Act also changed references to the “opposite sex” to references to a “different sex”: see, eg, ss 5(1), 21(3)(a) and (b), 25(3), and 27(1)(c)(i).  While the nature of these amendments and the extrinsic materials therefore strongly suggest that Parliament intended to recognise that sex is not necessarily a binary or immutable concept, it is not necessary for me to reach a concluded view on this issue.

46 While ss 5 to 7A enact the criteria by which it is determined whether conduct constitutes discrimination for the purposes of the SDA, the SDA does not proscribe discrimination per se.  Rather, it provides that discrimination in specific areas of public life including education, the provision of goods and services, and accommodation, is unlawful subject to various exemptions and carveouts.

47 Relevantly for the present appeal, s 22 of the SDA proscribes discrimination in the provision of goods and services on a number of grounds including gender identity, in the following terms:

It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:

(a)     by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b)     in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)     in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

48 The definition of gender identity in s 4(1) reads:

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.

49 The term “characteristic” is not defined by the SDA.  However,  the concept of a “characteristic” of a protected attribute or status is similarly used to expand sex discrimination (s 5(1)), and discrimination on other grounds under the SDA including sexual orientation (5A(1)), intersex status (s 5C(1)) and marital or relationship status (s 6(1)), to include characteristics appertaining generally, or imputed, to persons having the same protected status or attribute in each case.  While the characteristics in the case of each protected status or attribute will therefore vary – e.g. those characteristics generally imputed to persons by reason of their marital status will not be the same as those generally imputed to persons by reason of their sexual orientation – the word “characteristic” should be interpreted consistently in the different provisions.  That meaning, in my view, is its ordinary meaning in the sense of something that is a distinctive trait or feature.

50 The circumstances in which a person discriminates against another person on the ground of gender identity are set out in s 5B.  That section identifies two primary means by which a person may relevantly discriminate, namely:  directly under s 5B(1); or indirectly under s 5B(2).  Specifically, s 5B provides that:

5B Discrimination on the ground of gender identity

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identity if, by reason of:

(a)    the aggrieved person’s gender identity; or

(b)    a characteristic that appertains generally to persons who have the same gender identity as the aggrieved person; or

(c)    a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity.

(2)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identify if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the aggrieved person.

(Emphasis in bold and italics in original; emphasis in bold added.)

51 Sub-sections 5B(1) and (2) of the SDA are modelled on ss 6(1) and (2) dealing with direct and indirect discrimination respectively on the ground of marital status respectively:  2013 Explanatory Memorandum at [33]-[35].

52 With respect to s 5B, first, Dawson and Toohey JJ explained the fundamental distinction between direct and indirect discrimination in an oft-quoted passage in Waters v Public Transport Corporation (1991) 173 CLR 349 at 392:

Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race).  On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter … Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.

(Emphasis added.)

53 While Dawson and Toohey JJ were here considering these concepts in the context of the Equal Opportunity Act 1984 (Vic), their Honours’ comments apply equally here.  Applying these principles, an example of direct discrimination would be a refusal by an employer to employ a transgender man on the basis of his gender identity:  2013 Explanatory Memorandum at [33]. On the other hand, an example of indirect discrimination given in the 2013 Explanatory Memorandum at [34] is:

a human resources policy of an organisation that does not permit amendments to existing records.  This may disadvantage a trans woman by forcing her to disclose information regarding her trans status in order to explain discrepancies in personal details of employment records.

54 Secondly, it was rightly not in issue, as the primary judge held, that a claim cannot constitute both direct discrimination and indirect discrimination as direct and indirect discrimination are mutually exclusive:  see Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; (2017) 256 FCR 247 at [13]-[16] (Bromberg J, Griffiths and Bromwich JJ agreeing).  To put it simply, the same conduct cannot be both less favourable on its face (and therefore constitute direct discrimination) and be facially neutral (so as to constitute indirect discrimination) with respect to the same protected attribute or characteristic.  Furthermore, as Dawson and Toohey JJ explain, any different construction would lead to anomalous results whereby a requirement or condition which would not constitute indirect discrimination unless it was unreasonable, could constitute direct discrimination even if it was reasonable:  Waters at 392-393.  However, the question whether conduct should properly be characterised as direct or indirect discrimination may be complex in the context of a particular case and, therefore, as occurred in this case, it may be appropriate to plead direct and indirect discrimination as alternatives.

55 Thirdly, ss 5B(1)(b) and (c) are intended “to prevent the circumventions that would otherwise occur where discriminators justified their conduct by reference to a characteristic (actual or imputed) of persons [with a protected attribute], rather than by reference to the [protected attribute] itself”:  Commonwealth v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191 (Commonwealth v HREOC) at 207 (Wilcox J) (relevantly in the case of Commonwealth v HREOC, marital status).   As Wilcox J further explained at 207, “Parliament may also have been concerned with discrimination based on stereotyping” (citing, by analogy, the observation of Mahoney AJ in Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 at 18).  

56 Fourthly, as the primary judge held at [77], the words “‘by reason of’ in s 5B(1) point to the requirement for a causal connection between a person’s gender identity, or a characteristic that generally appertains or is imputed to person of that gender identity, and the less favourable treatment by the alleged discriminator” (citing Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 at 321-2 (Lockhart J)).

57 Fifthly, by operation of s 8 of the SDA, an act will be done “by reason of” one of the matters in s 5B(1)(a), (b) or (c) even if that matter:

(1)    is only one of a number of matters by reason of which the act is done; and

(2)    is not “the dominant or substantial reason for the doing of the act”.

58 In other words, an act done for one of the reasons set out in s 5B(1)(a), (b) or (c) will still suffice to establish direct discrimination even if that act is also done by the discriminator for other more subjectively significant reasons.

59 Sixthly, the term “gender identity” is defined in s 4(1) of the SDA and, as I shortly explain, is concerned with the manner in which a person subjectively identifies, presents, and is recognised “with or without regard to the person’s designated sex at birth”.  This makes it clear that the definition applies to transsexual and transgender persons, even though it is not necessarily limited to such persons:  2013 Explanatory Memorandum at [12].  Thus, while the term “gender” is not defined, it is a different (but potentially overlapping) concept from “sex” which is the subject of a separate prohibition against discrimination in s 5:  see also 2013 Explanatory Memorandum at [13].

60 In the seventh place, discrimination for the purposes of ss 5 to 7A inclusive is subject to s 7D:  see relevantly s 5B(3).  Section 7D provides that a person does not discriminate by taking special measures for the purpose of achieving substantive equality.  As Gray J observed in Walker v Cormack (2011) 196 FCR 574 at [32], the phrase “substantive equality” in s 7D(1) of the SDA recognises that formal equality may lead to substantive inequality.  Importantly, s 7D applies to limit the scope of both direct and indirect discrimination.  The proper construction of this section is in issue between the parties and is addressed in the context of ground 3(a) of the notice of appeal in Part 6 below.

61 Finally, indirect discrimination for the purposes relevantly of s 5B(2) is also subject to a reasonableness test in s 7B of the SDA as I have earlier explained: s 5B(3).

6.    DID THE PRIMARY JUDGE ERR IN HOLDING THAT THE GIGGLE APP WAS NOT A SPECIAL MEASURE UNDER S 7D OF THE SDA?  (GROUND 3(a), NOTICE OF APPEAL)

62 By ground 3(a) of the appeal, Giggle and Ms Grover submit that the Giggle App was a special measure under s 7D(1)(a) for the purpose of achieving substantial equality between men and women as a consequence of which they could exclude Ms Tickle, as a transgender woman, from access to the Giggle App without engaging in direct or indirect discrimination contrary to s 22 of the SDA.

63 Ground 3(a) raises a threshold issue because, if (as Ms Grover and Giggle contend) the Giggle App, as an exclusive forum for cisgender women, constitutes a special measure for the purposes of s 7D of the SDA, it would follow that:

(1)    excluding Ms Tickle from accessing the Giggle App could not constitute unlawful direct or indirect discrimination under the SDA;

(2)    the appeal should be allowed; and

(3)    the cross-appeal should be dismissed.

64 This ground in turn depends in the first instance upon whether the construction of s 7D for which Ms Grover and Giggle contend should be upheld.

65 Section 7D of the SDA provides:

(1)     A person may take special measures for the purpose of achieving substantive equality between:

(a)     men and women; or

(aa)    people who have different sexual orientations; or

(ab)    people who have different gender identities; or

(ac)    people who are of intersex status and people who are not; or

(b)    people who have different marital or relationship statuses; or

(c)    women who are pregnant and people who are not pregnant; or

(d)    women who are potentially pregnant and people who are not potentially pregnant; or

(e)    women who are breastfeeding and people who are not breastfeeding; or

(f)    people with family responsibilities and people without family responsibilities.

(2)     A person does not discriminate against another person under section 5, 5A, 5B, 5C, 6, 7, 7AA or 7A by taking special measures authorised by subsection (1).

(3)     A measure is to be treated as being taken for a purpose referred to in subsection (1) if it is taken:

(a)     solely for that purpose; or

(b)     for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.

(4)     This section does not authorise the taking, or further taking, of special measures for a purpose referred to in subsection (1) that is achieved.

66 Section 7D was inserted into the SDA by the Sex Discrimination Amendment Act 1995 (Cth) (1995 Amending Act) and replaced the previous exception in s 33 of the SDA for acts taken to ensure that persons of a particular sex or marital status, or who are pregnant, are afforded equal opportunities.  As the primary judge held at [82], s 7D was initially intended to give effect under Australia law to Art 4(1) of the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9) (CEDAW).  Art 4(1) of CEDAW provides that:

Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

67 Since the 1995 Amending Act, s 7D has, of course, been amended to embrace special measures for a wider range of protected groups including people of different gender identities.  Nonetheless, the concept of a special measure has remained the same, namely: a measure intended to achieve substantive equality by addressing underlying disparities between protected groups which underlies Art 4(1) of CEDAW and similar provisions in other international instruments such as the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 7 March 1966 ([1975] ATS 40).  Thus, it was not in issue, as Crennan J explained in Jacomb v Australian Municipal Administrative Clerical and Services Union [2004] FCA 1250; (2004) 140 FCR 149 at [44], that special measures are those undertaken for the purposes of achieving “genuine equality” including by “affirmative action” and are, to this extent, characterised as non-discriminatory despite being discriminatory on their face:  see also by analogy Gerhardy v Brown (1985) 159 CLR 70 at 104 (Mason J) and 133 (Brennan J).

68 The construction issue raised by ground 3(a) of the appeal is whether, as Ms Grover and Giggle contend, s 7D should be interpreted such that where a person takes a special measure for the purpose of achieving substantive equality for one of the protected groups in s 7D(1) (e.g. pregnant women), it follows that there can be no unlawful discrimination under the SDA against people who belong to a different protected group (e.g. people of intersex status).  The primary judge rejected this construction, holding at [86] that:

That contention is plainly untenable. It is obvious and logical to read s 7D(1) and 7D(2) together, so that a special measure falling within s 7D(1)(a) (discrimination between men and women) does not constitute discrimination only as described in s 5 (sex discrimination).   Any other interpretation would be unworkable and nonsensical.   It simply cannot be that a special measure of advancing substantive equality between men and women provides any shield from gender identity discrimination, any more than it would provide a shield against discrimination on any of the other grounds listed in s 7D(2).  The respondents’ contention must fail.

69 The approach adopted by the primary judge in the above paragraph can be described as a distributive construction of s 7D of the SDA.

70 Contrary to the primary judge’s construction, Ms Grover and Giggle submit that, provided that a measure has a purpose of achieving substantive equality for one of the protected groups in s 7D(1), it is capable of being a special measure irrespective of the nature of any other purpose, including a purpose discriminatory to another protected group.  Thus, they submit that the Giggle App is a special measure for the purpose of achieving substantive equality between “men and women” under s 7D(1)(a) which engages s 7D(2) notwithstanding that it excludes transgender women because the SDA “does not compel alignment between identity-based claims and the scope of measures taken to redress sex-based inequality; it leaves that question to the purpose and design of the measure itself.  The fact of exclusion does not negative the purpose.”

71 Leaving aside questions of fact as to the purposes of the Giggle App, the construction for which Ms Grover and Giggle contend is an available one on a literal reading of s 7D(1), as is the contrary construction adopted by the primary judge.  However, in my view, this constructional choice is clearly resolved in favour of that adopted by the primary judge for the following reasons.

72 First, the purpose of s 7D of the SDA is to recognise that certain measures which differentiate between groups may legitimately seek to remedy structural inequalities with respect to historically disadvantaged protected groups and should not be caught by those forms of discrimination which are proscribed under the SDA.  Thus the Explanatory Memorandum to the Sex Discrimination Amendment Bill 1995 (HR) (the 1995 Amendment Bill) which introduced s 7D, explains that s 7D is intended to make it clear that special measures do not amount to discrimination for the purposes of the SDA, in place of s 33 which had exempted acts for the purpose of ensuring equal opportunity from the scope of the provisions proscribing discrimination on the ground of sex and other attributes.  Specifically, the Explanatory Memorandum to the 1995 Amendment Bill explained (at [33], [35] and [37] respectively) that:

Section 7D provides that a person does not discriminate against another person for the purposes of the Act by taking special measures, a purpose of which is to achieve equality between men and women, people of different marital status, pregnant women and women who have the potential to become pregnant and people who do not.

…

The new clause recognises that certain special measures may have to be taken to overcome discrimination and achieve equality.

…

This provision seeks to achieve equality of outcomes and is based on Australia's international obligations to achieve equality, as required by international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women.

73 Similarly, the Second Reading Speech to the 1995 Amendment Bill states that “[s]pecial measures should be presented and understood as an expression of equality rather than an exception to it” (emphasis added).  So understood, while a special measure may involve an affirmative action and be, on its face, discriminatory with respect to a protected attribute under the SDA, taking such measures in fact promotes the objects of the SDA and is therefore characterised as non-discriminatory under the SDA:  Jacomb at [44] (Crennan J).

74 This purpose would be undermined if a measure which promoted substantive equality for those holding a particular protected attribute, did so by impairing the achievement of substantive equality by a different protected group or subgroup of a protected group.   In other words, as the Commissioner submitted:

under the guise of helping to eliminate one form of discriminatory conduct, [Ms Grover and Giggle’s] construction would, by a side wind, expressly authorise other forms of discriminatory conduct and thus take the protections in the SDA backwards.  So long as a given measure had as one purpose the achievement of equality between (eg) men and women (s 7D(1)(a)), the measure could expressly and deliberately disadvantage any of the other traditionally marginalised groups identified in s 7D(1).

75 By way of example, the practical effect of Ms Grover and Giggle’s construction, as the Commissioner also submits, is that the SDA would not prohibit:

(1)    a women-only adult swim class that excluded lesbians (cf s 5A);

(2)    an employer advertising for a woman to take up a senior role in light of the employer’s historically male-dominated workforce, but only if she undertook that she would be continuously available for work during all business hours and would not leave the office for school pickups or drop-offs (cf s 7A); and

(3)    a landlord concerned about women being locked out of the rental market reserving certain high-demand apartments for female tenants, but excluding all breastfeeding women (cf s 7AA), all transgender women (cf s 5B), or all women who are intersex (s 5C).

76 Ms Grover and Giggle urge that a distributive construction would result in overreach, including because there are many circumstances in which a special measure may involve some form of indirect discrimination.  However, I agree with the Commissioner that this overstates the effect of the distributive construction, particularly because a special measure under one ground in s 7D(1) would typically be agnostic to other characteristics.  There are also other guardrails in the SDA in relation to indirect discrimination, such as the reasonableness test in s 7B.

77 Secondly, as the Commissioner contends, by “separately articulat[ing] each form of substantive equality relevant to each head of discrimination”, s 7D “evinces an intention to ensure that the authorisation in s 7D(2) attaches only to the particular discrimination that the special measure is designed to remedy – not to all discriminatory conduct” (emphasis added).   In other words, each subparagraph of s 7D(1) articulates a way in which a special measure could be framed.  These in turn correspond to the grounds of discrimination listed in s 7D(2) (i.e. ss 5, 5A, 5B, 5C, 6, 7, 7AA and 7A) and cumulatively cover all statutory forms of discrimination in Part I of the SDA which are made unlawful by Part II.  For example, s 7D(1)(a) relates to substantive equality between men and women, which corresponds to discrimination on the ground of sex under s 5.  Similarly, s 7D(1)(ac) relates to people who are of intersex status and people who are not, which corresponds to discrimination on the ground of intersex status under s 5C.  Conversely, sub-section (3) of each head of discrimination in ss 5-7A separately provides that “[t]his section has effect subject to sections 7B and 7D”.  The inclusion of subsection (3) thereby links each head of discrimination to s 7D(1), providing that special measures may be taken with respect to each individually identified protected group.  The text and structure of s 7D is therefore consistent with the distributive construction of the provision adopted by the primary judge. As the Commissioner submits:

If the Appellants’ construction were correct, Parliament did not need to list the eight individual discrimination provisions in s 7D(2).  It could have just said: “A person does not discriminate under this Act [or under Part I of this Act] by taking special measures authorised by subsection (1)”.  It did not do so.  Similarly, Parliament would not have needed to list out the nine forms of special measures in s 7D(1) as separate sub-paragraphs.  The fact that Parliament separately articulated each form of substantive equality relevant to each head of discrimination (s 7D(1)(a)-(f)), and then separately identified each head of discrimination (s 7D(2)) such that every form listed in s 7D(1) correlated with a specific head listed in s 7D(2), evinces an intention to ensure that the authorisation in s 7D(2) attaches only to the particular discrimination that the special measure is designed to remedy – not to all discriminatory conduct.

78 Nor, contrary to Ms Grover and Giggle’s submission, is it correct to characterise s 7D as a statutory definition to be read into the substantive provision being (relevantly) s 7B:  cf SkyCity Adelaide Pty Ltd v Treasurer of South Australia [2024] HCA 37; (2024) 282 CLR 479 at [32].  Rather, it is clear from subsection (3) to each of ss 5 to 7A that each of ss 5 to 7A is subordinate to s 7D which has a substantive operation, namely, to exclude the rights or liabilities created otherwise by the SDA for discrimination by reference to protected attributes.  As, for example, the High Court held in Vines v Djordjevitch (1955) 91 CLR 512 at 519-520:

[I]t may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts.  In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made as a ground for defeating or excluding the right.  For such a purpose, the use of proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter.

79 As such, the text, structure and purpose of s 7D of the SDA support the view that this is a case where the Latin maxim reddendo singula singulis applies.  That maxim is described at [6.190] of Herzfeld and Prince, namely, that:

Provisions with multiple subjects and objects or other parts of speech may correctly be read distributively, applying each subject to each object often in the order in which they appear.

80 Another way to approach the issue would be to read the words “as the case may be” into s 7D(2) of the SDA such that a special measure only addresses the head of discrimination with which it is linked:  see by analogy Chelfco Ninety-Four Pty Ltd v RTA [1985] VR 1 at 11-12 (Murphy J).  Ms Grover and Giggle’s attempt to distinguish this maxim on the basis that it was applied in Chelfco as a last resort does not displace the relevance of the maxim as a supporting device of construction in addition to the other textual, contextual and purposive reasons for construing subsections 7D(1)(a) to (f) distributively.

81 For these reasons, the distributive construction of s 7D adopted by the primary judge is clearly correct. It follows that it is not necessary to decide whether the Giggle App has the purpose of achieving substantive equality between men and women under s 7D(1)(a) as that is no answer to Ms Tickle’s claims of discrimination on the grounds of gender identity for the purposes of s 5B.  Ground 3 cannot therefore succeed.  Nor is it necessary to address the issue raised by ground 2 of the notice of appeal in order to resolve ground 3(a) of the notice of appeal.  Thus, while Ms Grover and Giggle agreed that ground 2 raised issues relevant to interpreting s 7D, they also accepted that the issue may not arise for the separate reason that the Court may accept (as is plainly correct) that a special measure under s 7D(1)(a) can be directed to a subgroup of women.

7.    DID THE PRIMARY JUDGE ERR IN FAILING TO UPHOLD THE CLAIMS OF DIRECT DISCRIMINATION?  (CROSS-APPEAL GROUNDS 1, 2, AND 3)

7.1    The primary judge’s reasons for rejecting Ms Tickle’s direct discrimination case

82 The primary judge held at [135] that the existence and effect of the Imposed Condition “is not disputed or otherwise in issue. It is not denied or otherwise in doubt that the basis of the exclusion of Ms Tickle was that she was perceived to have a male appearance, that is, she was perceived to have been male at birth”: PJ at [135].  The primary judge also found that Ms Grover and Giggle had a policy of “excluding all people who were male sex at birth at the time Ms Tickle was removed” which “included transgender women”:  PJ at [130]; see also PJ at [92], [100], [125]-[126] and [129].  Ms Grover and Giggle’s primary argument at trial was therefore that they had discriminated against Ms Tickle directly but not on the ground of her gender identity.  Rather Ms Grover and Giggle contended that they had discriminated directly against Ms Tickle on the basis of her sex which they considered to be irrevocably synonymous with her assigned sex at birth (i.e. a male): PJ [75].  This was a central pillar of their case.

83 The primary judge rejected this argument, holding at [76]-[77] that:

As already outlined, the respondent’s contention that Ms Tickle’s claim was properly one of sex discrimination under s 5 misunderstands the meaning of the word “sex” in the SDA, and must be rejected. The gender identity discrimination provisions cannot be evaded by creating false distinctions that are not supported by any of the terms of the SDA, properly understood.

The respondents’ argument is contrary to the express terms of s 5B as well.  The words by reason of in s 5B(1) point to the requirement for a causal connection between a person’s gender identity, or a characteristic that generally appertains or is imputed to persons of that gender identity, and the less favourable treatment by the alleged discriminator:  Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 at 322 (Lockhart J).  It is not a “but for” test as this would be to improperly focus on the consequences for the complainant, rather than the “real reason” for the alleged discriminator’s conduct:  Purvis v New South Wales [2003] HCA 62; 217 CLR 92 at [166] (McHugh and Kirby JJ).  Identifying whether the treatment occurred by reason of gender identity requires an examination of the relevant circumstances, but there is no requirement for a specific kind of intention or motive:  Mt Isa Mines at 322.  As Gummow, Hayne and Heydon JJ noted in Purvis in part of [236]:

the central question will always be — why was the aggrieved person treated as he or she was?  If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person’s disability? Motive, purpose, effect may all bear on that question.  But it would be a mistake to treat those words as substitutes for the statutory expression “because of”.

(Emphasis in the original.)

84 Importantly for present purposes, the primary judge then held at [78]-[79] that:

It is implicit in s 5B(1) that the discriminator actually be aware of a person’s gender identity, or the characteristic that generally appertains or is imputed to persons of the same gender identity.  But that awareness is different from a requirement that a person have some additional belief about the legitimacy of that gender identity.  In short, if it were established that the respondents had been aware of Ms Tickle’s gender identity, but dismissed its legitimacy and for that reason excluded her from the Giggle App, her case of direct discrimination would likely have succeeded.

I should also note that Ms Tickle’s direct discrimination case is pleaded as discrimination on the basis of her gender identity, not a characteristic imputed or appertaining to it.  It follows that it is therefore necessary for her to establish that the respondents had knowledge of her gender identity.

(Emphasis added; see also PJ at [49])

85 The primary judge held at PJ [131] that Ms Tickle’s case of direct discrimination must fail because she had not established that Giggle and Ms Grover had actual knowledge or awareness of her gender identity which Giggle and Ms Grover denied: see PJ at [49].  Specifically, at [131], his Honour held that:

Ms Grover’s evidence is that she cannot remember blocking Ms Tickle, but the decision would have been based only on Ms Tickle’s selfie, and that she was reviewing large numbers of selfies quickly.  Further, she gave evidence that she did not recall Ms Tickle from their earlier Twitter exchange, and that nothing on Ms Tickle’s Giggle App profile pointed to her being a transgender woman.  I am left to conclude that it is most likely she did not know that Ms Tickle was a transgender woman when she reviewed her selfie, and instead excluded her on the quick or reflexive decision that she appeared to Ms Grover to be a male.  Of course, given Ms Grover’s views, her decision almost certainly would have been the same had she been aware of Ms Tickle’s gender identity.  For Ms Grover, there is no legitimate distinction between transgender women and cisgender men.  Denial in the legitimacy of that distinction would be no answer to a case of direct discrimination, if awareness of Ms Tickle’s gender identity had been established.  Nonetheless, the direct discrimination case must fail on the more basic evidential basis that it has not been established that Ms Grover was aware of Ms Tickle’s gender identity at the time she blocked her from the Giggle App.  The exclusion, therefore, was not proven to be by reason of Ms Tickle’s gender identity.

(Emphasis added.)

86 Having explained (in line with the authorities) that the central issue is Ms Grover and Giggle’s real reason for treating Ms Tickle in the way that she was, the primary judge’s reasons for rejecting Ms Tickle’s direct discrimination case therefore reduce to the following propositions:

(1)    implicit in s 5B(1) is the requirement that the discriminator have actual knowledge or awareness of a person’s gender identity or of the characteristic that generally appertains or is imputed to persons of the same gender identity;

(2)    Ms Tickle alleged direct discrimination on the basis of her gender identity under sub-section 5B(1)(a) and not a characteristic imputed or appertaining to it under sub-sections 5B(1)(b) and (c);

(3)    it follows that it was necessary for Ms Tickle to establish that Ms Grover and Giggle had actual knowledge or awareness of her gender identity; and

(4)    Ms Tickle’s direct discrimination case must therefore fail because she had established only that she was excluded by Ms Grover on a quick reflexive decision that she appeared to be male, and not because Ms Grover was actually aware of Ms Tickle’s gender identity as a transgender woman.

87 Furthermore, while the primary judge expressed the view that Ms Tickle had abandoned her claims to have been subjected to direct discrimination under s 5B(1) of the SDA, his Honour did not reject the direct discrimination claim on this basis.  Instead, his Honour proceeded on the basis that Ms Tickle put a direct discrimination case based solely on s 5B(1)(a) as explained above.

7.2    Overview of reasons for upholding the cross-appeal

88 Contrary to the primary judgment, I am satisfied that Ms Grover and Giggle engaged in unlawful, direct discrimination against Ms Tickle contrary to ss 5B(1) and 22 of the SDA by denying her access to the Giggle App and in subsequently refusing to readmit her.  It follows that the cross-appeal should be upheld.  In particular:

(1)    “gender identity” under the SDA is not limited to a person’s gender-related sense of self, but extends (relevantly) to their gender-related appearance;

(2)    Ms Tickle did not essentially abandon any case of direct discrimination under s 5(1) of the SDA;

(3)    the primary judge erred in holding that Ms Tickle’s claims of direct discrimination were limited to a claim under s 5B(1)(a) of the SDA and should have held that they included a claim of direct discrimination based on gender related appearance under s 5B(1)(b) or (c);

(4)    the primary judge erred insofar as his Honour held that knowledge that a person identified as a transgender woman was necessary to establish direct discrimination under s 5B(1)(b) or (c) of the SDA; and

(5)    in circumstances where Ms Tickle, as a transgender woman, identifies as female and alleges that she has been subjected to direct discrimination by reason of her gender-related appearance, the appropriate comparator for the purposes of assessing whether Ms Tickle has been treated “less favourably” is a cisgender woman whose gender-related appearance is perceived as female, and not a cisgender man.

89 I set out seriatim below my reasons for reaching each of these conclusions.

7.3    Does the term “gender identity” extend beyond a person’s gender-related sense of self to their gender-related presentation?

90 The term “gender identity” is defined in s 4(1) of the SDA and bears repeating:

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.

91 Ms Grover and Giggle contend that s 22 of the SDA protects against discrimination on the ground of gender identity only in terms of the subjective perception of self, relevantly self-identification as a transgender woman.  That understanding of the operation of the SDA is developed, in particular, in their submissions in support of the appeal challenging the primary judge’s finding of indirect discrimination, even though the same understanding also underpins their submissions in opposition to the cross-appeal alleging direct discrimination.  For example, Ms Grover and Giggle contend the primary judge erred in that his Honour held that the Imposed Condition’s discriminatory effect “was inferred from the fact of [Ms Grover’s] exclusion and the assumption that the [Imposed] Condition would similarly exclude others perceived as male with the ‘gender identity’ of ‘transgender woman’.”  Equally, in the context of direct discrimination, Ms Grover and Giggle contend that it is an error to infer from an exclusion based on a person’s appearance that the person was excluded by reason of their gender identity as a transgender woman.

92 These submissions should be rejected.   It is clear that the SDA protects not only gender identity in what might be described as the narrow sense of self-perception but also gender identity in its expanded sense as expressed by outward characteristics such as appearance for the following reasons.

93 In line with the principles of statutory construction outlined above, the starting point is the text, context and purpose of the legislation.  In this regard, the language that has “actually been employed in the text of legislation is the surest guide to legislative intention”: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ).

94 In addition to referring to a person’s “gender related identity”, the statutory definition of gender identity expressly includes the person’s gender-related appearance, mannerisms and the like.  As is apparent, therefore, the words “gender related” not only qualify the word “identity” in the statutory definition of “gender identity”, but also the words “appearance, or mannerisms”. So much is clear from the phrase, “or other gender-related characteristics” in the statutory definition (emphasis added).  Contrary to Ms Grover and Giggle’s submissions, I did not understand Ms Tickle or the Commissioner to contend otherwise.  As the 2013 Explanatory Memorandum explained at [13]:

“Gender” is used in this definition rather than “sex” as it is a different concept, understood to be part of a person’s social identity (rather than biological characteristics).  Gender refers to the way a person presents and is recognised in the community.  A person’s gender might include outward social markers, including their name, outward appearance, mannerisms and dress.  It also recognises that a person’s sex and gender may not necessarily be the same.  Some people may identify as a different gender to their birth sex and some people may identify as neither male nor female.

95 Further and importantly, the statutory definition recognises that a person’s gender identity may manifest itself in that person seeking to match their sense of self by changing their physical gender-related appearance, including by medical intervention such as surgical procedures and hormone treatments (as recognised, for example, in For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16; [2025] 2 WLR 879 at [87]).  This, in turn, implicitly recognises that cisgender men and women generally have different physical features, and that exhibiting physical features typically associated with a cisgender man or woman is a characteristic that appertains generally to, or is generally imputed to, transgender men and women respectively.  As Allsop J (as his Honour then was) held in Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186 at [167]-[168], “generally” as referred to in s 5B(1)(b) and (c) means “extensively” and “in a general sense”, that is, “some characteristic that is imputed (not always, but extensively or usually)”.

96 This construction also accords with, and best promotes, the evident purpose of the SDA.  The reason why the SDA extends protection to the person’s gender-related appearance and mannerisms under the umbrella of gender identity is precisely because it is the variance between those outward characteristics stereotypically imputed to a certain gender, on the one hand, and the gender with which a person subjectively identifies, on the other hand, that often leads to discrimination.  As the 2013 Explanatory Memorandum at [11] explained:

This definition provides maximum protection for gender diverse people.  It includes the way a person expresses or presents their gender and recognises that a person may not identify as either male or female.  This acknowledges that it is often the discord between a person’s gender presentation and their identity which is the cause of the discrimination.

(Emphasis added.)

97 Thus, by including a person’s gender-related appearance as part of a person’s gender identity, the statutory definition recognises, as the Commissioner explained, that:

Treating a person differently on the basis of ‘perceived visual cues of [their] femaleness’ or ‘maleness’ can ground gender-identity discrimination because these cues are the central means available to an outsider to judge whether the person identifies as (eg) a woman or a man, and thus a key catalyst for their adverse differential treatment on gender identity grounds (as not ‘really’ being a woman or a man).  In this way, that conduct is treatment on the basis of the person’s ‘gender identity’, or of an imputed characteristic’ of the person’s gender identity, within s 5B(1).

98 It follows therefore that limiting the concept of gender identity to a person’s gender-related sense of self would not only ignore the express terms of the definition of gender identity, but it would not further the object of the SDA in s 3(b) “to eliminate, so far as is possible, discrimination against persons on the ground of … gender identity”.  As such, even if that construction were an available constructional choice, which in my view it is not, the broader construction of gender identity which includes gender-related presentation or appearance must be preferred:  Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 at 235 (Dawson J).  Ms Grover’s and Giggle’s submission to the contrary must be rejected.  As the High Court held in Theiss v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664; (2014) 306 ALR 594; at [23]:

Objective discernment of statutory purpose is integral to contextual construction.  The requirement of s 15AA of the Acts Interpretation Act 1901 (Cth) that “the interpretation that would best achieve the purpose or object of [an] Act (whether or not that purpose or object is expressly stated…) is to be preferred to each other interpretation” is in that respect a particular statutory reflection of a general systemic principle.  For:

“it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.”

(Quoting Cabell v Markham (1945) 148 F (2d) 737 at 739.)

7.4    Did Ms Tickle essentially abandon any case of direct discrimination and conflate her claims of direct and indirect discrimination?  (Cross-appeal ground 2)

99 Ms Grover and Giggle submit first that the proceedings below “were conducted on the clear basis that the claim advanced was one of indirect discrimination under s 5B(2)”.  Secondly, and in the alternative, they submit that the primary judge correctly held at [79] that “Ms Tickle’s direct discrimination case is pleaded as discrimination on the basis of her gender identity, not a characteristic imputed or appertaining to it.”  This is because, in their submission, paragraph 35 of the amended statement of claim pleaded only that Ms Grover and Giggle discriminated against Ms Tickle in breach of s 22 of the SDA “on the basis of her gender identity, within the meaning of section 5B(1) of the SDA”.  Thus, Ms Grover and Giggle contend that grounds 1, 2 and 3 of the cross-appeal should be limited to a consideration of whether there was direct discrimination on the ground of gender identity under subsection 5B(1)(a) of the SDA, and do not extend to discrimination on the ground of gender-related characteristics (relevantly appearance) under subsections 5B(1)(b) and/or (c).

100 The pleadings of direct and indirect discrimination are found at [34]-[37] of the amended statement of claim and read as follows:

34.    The First Respondent on instruction of or at the will of the Second Respondent imposed a condition that to be allowed Ordinary Access to the Giggle App, a user must be either:

a.    be a cisgendered female; or

b.    be determined as having cisgendered physical characteristics by the Second Respondent on review of a photograph provided during the Application Process.

(Imposed Condition)

35.    In breach of section 22 of the SDA, the First and/or Second Respondent discriminated against the Applicant on the basis of her gender identity, within the meaning of section 5B(1) of the SDA, by:

a.    using the Imposed Condition;

b.    excluding her from using and accessing the Giggle App which was otherwise available to cisgender women; and

c.    not responding to the Applicant’s requests for access.

36.    In the premises, the Applicant was treated less favourably than cisgender women.

37.    The First and/or Second Respondent treated the Applicant less favourably than cisgender women because the Applicant is a transgender woman.

38.    In breach of section 22 of the SDA, the First and/or Second Respondent discriminated against the Applicant on the basis of her gender identity, within the meaning of section 5B(2) of the SDA, by the Imposed Condition, which has disadvantaged and is likely to continue to disadvantage transgender women because:

a.    they will not be able to gain Ordinary Access to the Giggle App; and

b.    they are vulnerable to disparaging conclusions and exclusion based on their appearance.

39.    Unlike transgender women, cisgender women:

a.    would not have had their access to the Giggle App restricted or physical characteristics questioned by the First and/or Second Respondent; and

b.    the First and/or Second Respondent would have engaged with cisgender women and responded to their queries regarding access to the Giggle App.

(Emphasis in the original.)

101 The primary judge considered that the pleadings were confusing and that they conflated direct and indirect discrimination.  Specifically, his Honour relevantly held at [46] that:

Doing the best I can with the pleadings, given the deficiencies identified above, Ms Tickle alleges that:

(a)    a condition was imposed by Giggle, on the instruction, or at the will, of Ms Grover – that is, she primarily makes a claim of indirect discrimination by the imposition of a condition;

(b)    the condition was that, to be allowed ordinary access to the Giggle App, a user had to be a cisgendered female, or be determined as having cisgendered female physical characteristics by Ms Grover on a review of the selfie photograph …

(c)    in breach of s 22 of the SDA, Giggle and/or Ms Grover discriminated against Ms Tickle on the basis of her gender identity by imposing that condition, excluding her from using and assessing the Giggle App which was otherwise available to cisgender women and by not responding to her requests for access;

(d)    by the imposed condition, Ms Tickle was treated less favourably than cisgender women because she is a transgender woman …

102 With respect to (d), the primary judge noted that the pleading “seems inherently not just a claim of indirect discrimination, but abandoning a claim of direct discrimination” (referring to the fact that discrimination cannot be both direct and indirect): PJ at [46(d)].  Similarly, the primary judge observed at [12(a)] that Ms Tickle’s claim of direct discrimination “was not really the case that she brought”.

103 The primary judge’s observation that Ms Tickle’s pleadings essentially abandoned a claim of direct discrimination was not essential to his Honour’s decision.  Thus, despite his criticisms of the pleadings, the primary judge considered whether Ms Tickle’s claim of direct discrimination had been established.  Nonetheless, the primary judge did so on the basis that Ms Tickle’s direct discrimination case was limited to whether she had been treated less favourably by reason of her gender identity as a transgender woman under s 5B(1)(a), and not by reason of her gender-related appearance, mannerisms, or other gender-related characteristics which his Honour did not consider to have been raised.

104 I respectfully disagree with the primary judge’s reading of paragraph 35 of the pleadings.  While I agree with the primary judge that the pleadings were not well drafted, in my view paragraph 35 of the amended statement of claim did plead a case of direct discrimination raising s 5B(1)(a), (b) and (c) of the SDA and did so with sufficient clarity to fairly put Giggle and Ms Grover on notice of this claim.  Nor did Ms Tickle conflate her claims of indirect and direct discrimination.

105 First, Ms Tickle separately pleaded that she had been discriminated against contrary to s 22 of the SDA on the basis of her gender identity within the meaning of s 5B(1) or (alternatively) within the meaning of s 5B(2).

106 Secondly, the pleading of discrimination under s 5B(1) was to the effect that the Imposed Condition discriminated on its face against transgender women because the requirement that they be cisgender women or be assessed by Ms Grover as having the physical characteristics of a cisgender woman was used to exclude Ms Tickle from using and accessing the Giggle App.  In other words, the Imposed Condition as pleaded in paragraph 34 of the amended statement of claim was not on its face neutral.   Further, the condition was imposed and applied precisely because Ms Grover and Giggle did not regard transgender women as women and therefore considered that they should not be permitted to access and use the Giggle App, as Ms Grover and Giggle accepted (and I shortly explain).  The Imposed Condition, in other words, was pleaded as the mechanism by which Ms Grover and Giggle intentionally sought to exclude transgender women from using the Giggle App because they regarded them as men and to limit access to the Giggle App to cisgender women.

107 Thirdly, the primary judge appears to have regarded the pleadings at [35]-[37] as inherently raising a case of indirect discrimination because the pleading of discrimination for the purposes of s 5B(1) centred on the imposition of a “condition”.  In this regard, I agree that it is necessary to establish that a “condition, requirement or practice” has been imposed in an indirect discrimination case under s 5B(2) but not in a direct discrimination case under s 5B(1).  However, the critical element prescribed by s 5B(2) is not the imposition of a “condition, requirement or practice” per se, but rather that the “condition, requirement or practice” has a particular “effect”.  Relatedly, it does not follow that, because the imposition of a condition is not a requirement for establishing direct discrimination under s 5B(1) that a person cannot directly discriminate by reason of imposing a condition.

108 To give a simple example, a barber’s shop may directly discriminate against transgender men by adopting a policy that services are available only to those men who are cisgender men and applying that rule or policy to refuse services to a transgender man.  In this example, the barber shop’s policy that its services are only provided to cisgender men may equally be characterised as it imposing a “condition, requirement or practice” that a customer be a cisgender man before the barber’s shop will provide services.  However, the fact that such a policy may be characterised in such terms cannot negate the fact that the barber’s shop in such a case has engaged in direct discrimination.  The critical factor here is that the condition, requirement or practice is not facially neutral but expressly discriminates on the basis of a protected characteristic of a prospective customer.

109 Fourthly and consistently with this construction, s 22(1)(b) of the SDA expressly provides that it is unlawful to discriminate (among other things) in the “terms or conditions” on which services are made available to a person irrespective of whether the discrimination is direct or indirect.  As such, s 22(1)(b) leaves open the question of whether, in such a case, the conditions give rise to direct or indirect discrimination.  That question will turn instead upon whether the criteria in s 5B(1) or (2) are met.

110 It follows that I do not accept Ms Grover and Giggle’s submission that Ms Tickle’s case at trial is properly characterised only as a claim of indirect discrimination.   I therefore disagree with the primary judge’s obiter comments to this effect.

111 Finally, it is convenient to deal at this point with the contention by Ms Grover and Giggle that the primary judge erred in his characterisation of the Imposed Condition, as established by the evidence. Relevantly, in assessing the evidence, the primary judge upheld the condition as framed by Ms Tickle at [135]-[136]:

As to exclusion, ordinarily there is a need for a careful comparator exercise to be carried out, in order to identify how and why a condition, requirement or practice imposed or proposed to be imposed has or is likely to have the effect of disadvantaging the person indirectly discriminated against, or persons who have the same characteristics of the aggrieved person, here having the same gender identity as Ms Tickle, namely that of a transgender woman. This requirement must still be addressed, but on the way in which the evidence has unfolded and the competing arguments advanced, it is straightforward. That is because, in substance, as opposed to any pleading or argumentative form to the contrary, the existence of the condition and its effect is not disputed or otherwise in issue.  It is not denied or otherwise in doubt that the basis for the exclusion of Ms Tickle was that she was perceived to have a male appearance, that is, she was perceived to have been male at birth.  Indeed, this was the very essence of the respondents’ case.

Nor do the respondents deny in this proceeding that the effect of this condition was that it would not just exclude men who were male sex at birth, but also transgender women too, including transgender women who are legally regarded as female.

112 Ms Grover and Giggle reject this characterisation of the Imposed Condition.  In their submission, the Imposed Condition is not supported by the factual findings and Ms Grover’s evidence was that “the App was open to transgender men and non-binary females, and that many applicants with presentations non-conforming to stereotypes of ‘femaleness’ were allowed to remain”.

113 That submission must be rejected.  The primary judge accepted at PJ [92] Ms Grover’s evidence that she initially intended “transitioned” transgender women to be granted access to the Giggle App (which his Honour understood to mean those who had undertaken sexual reassignment surgery), as opposed to “self-ID only” transgender women (who had not).  However, the primary judge found that, in or around June 2020, Giggle had adopted a view that no transgender women should be given access to the Giggle App.  This reflects Ms Grover’s position in cross-examination that she viewed any transgender woman as a man even if that person had transitioned genders medically, socially and legally:  PJ [93].  Further, Ms Grover and Giggle accepted at trial and on appeal that their intention was to exclude cisgender men and transgender women from accessing the Giggle App.  As such, Ms Grover and Giggle accepted the substance of the Imposed Condition. Thus, for example, the primary judge accepted Ms Grover’s evidence when asked about why Ms Tickle was removed on viewing her selfie, that “the same as removing all males, yes”: PJ at [126].  His Honour understood this to mean that “Ms Grover believes she would have removed Ms Tickle with the intention of effecting the Giggle App’s rule that it be female only” in line with her evidence that Ms Tickle was removed because Ms Grover perceived Ms Tickle’s selfie to be a photograph of a male: PJ at [126].  His Honour’s understanding in this regard was clearly correct.

7.5    Did the primary judge err in finding that Ms Tickle was limited to a direct discrimination case under s 5B(1)(a)?  (Cross-appeal ground 1)

114 Contrary to the primary judge’s reasons and Ms Grover and Giggle’s submissions, I also consider that Ms Tickle’s pleadings were not limited to raising a case of direct discrimination by reason of Ms Tickle’s gender identity for the purposes of s 5B(1)(a) as a transgender woman given the following matters.

115 First, in support of her direct discrimination case Ms Tickle expressly pleaded that she was excluded from, and not readmitted to, the Giggle App on the basis of her gender identity by reason of her failure to comply with a condition that she “be determined as having cisgendered physical characteristics” for the purposes of s 5B(1) of the SDA:  see paragraph 34 of the amended statement of claim (quoted at paragraph 100 above).  Accordingly, the pleading of direct discrimination expressly relied upon “gender-related … appearance” as a ground on which discrimination was alleged.

116 Secondly, the chapeau to the pleading of direct discrimination at paragraph 35 of the amended statement of claim is not limited to discrimination within the meaning of s 5B(1)(a) but is expressed generally to refer to s 5B(1).  In turn, discrimination on the ground of gender identity in s 5B(1) itself includes discrimination on the basis of “a characteristic that appertains generally to” or “is generally imputed to” persons who have the same gender identity as the aggrieved person.  In the case of gender identity, Parliament expressly included outward gender-related characteristics such as appearance and mannerisms among the protected characteristics in the statutory definition of “gender identity”:  see Part 7.3 above.

117 It follows, in my view, that the pleadings at paragraphs 34 to 36 of the amended statement of claim squarely pleaded a case of direct discrimination:

(1)    The so-called Imposed Condition was that a person be a cisgender woman or be determined as having visible physical characteristics of a cisgendered woman;

(2)    The Imposed Condition was therefore not facially neutral but directed at excluding those who were not cisgendered women including transgender women;

(3)    The Imposed Condition was imposed deliberately “on instruction of or at the will of” Ms Grover; and

(4)    Ms Grover and Giggle applied that condition directly to exclude Ms Tickle on the basis of her gender-related appearance.

118 Leaving aside the fact that Ms Grover (and by her, Giggle) do not accept the legitimacy of cisgender and transgender women for present purposes, the facts underpinning points (1) to (4) above were otherwise accepted by Ms Grover and Giggle.  Thus, as earlier explained, the primary judge expressly found that the essence of Ms Grover’s and Giggle’s case was that “the basis for the exclusion of Ms Tickle was that she was perceived to have a male appearance, that is, she was perceived to have been male at birth”: PJ at [135].  Similarly, at [130] of the primary judgment, the primary judge held that “Ms Grover embraced the fact that Giggle had a policy of excluding all people who were male sex at birth at the time Ms Tickle was removed, and this included, as Ms Grover made clear in oral evidence and her blog post…, transgender women.”

7.6    Is knowledge of gender identity by the discriminator a requirement under s 5B(1)? (Cross-appeal ground 1)

7.6.1    The issue

119 Ms Tickle next contends that the primary judge wrongly held that, in order to establish direct discrimination under s 5B(1), it was necessary for her to prove that Ms Grover (and through her, Giggle) had actual knowledge of Ms Tickle’s gender identity as a transgender woman, which Ms Tickle had failed to do.

120 There is considerable force in the proposition that the primary judge considered that actual knowledge or actual awareness of Ms Tickle’s gender identity as a transgender woman was required only because his Honour considered that Ms Tickle’s direct discrimination case was limited to s 5B(1)(a).  By contrast, the primary judge apparently considered (in obiter) that s 5B(1)(b) and (c) implicitly require the discriminator to have actual knowledge or awareness of the characteristic that generally appertains or is imputed to persons of the same gender identity:  PJ at [78]-[79].   However, the primary judge did not address any claim of direct discrimination under s 5B(1)(b) or (c) because his Honour wrongly, for the reasons already given, considered that Ms Tickle did not allege direct discrimination on the basis of a characteristic generally appertaining, or imputed, to persons who have the same gender identity as Ms Tickle.

121 In any event, argument on the cross appeal proceeded on the basis that the primary judge imputed a requirement of actual knowledge of gender identity in this sense into the criteria for direct discrimination under each of s 5B(1)(a), (b) and (c).  Furthermore, this understanding of the primary judge’s reasons was embraced by Ms Grover and Giggle who argued that it was correct.

122 Ms Tickle submitted that this construction of s 5B(1)(a), (b) and (c) was wrong.  Her submissions in support of this aspect of her cross appeal may be summarised briefly as follows.

(1)    The broad definition of “gender identity” in the SDA “includes elements that are intrinsic to the sense of self and outward social markers” and its protective purpose would be undermined if knowledge of gender identity were required.

(2)    There is no provision of the SDA which imports a knowledge element into the test for direct discrimination and, to import such a requirement, would undermine the objects of the SDA.  Alternatively, if knowledge is required, “wilful blindness or reckless indifference” should suffice.

(3)    In any event, the evidence below was sufficient to support a finding of direct discrimination.

123 Ms Grover and Giggle contend that they excluded users “based on visual perception of sex, indifferent to any known or imputed gender identity, and therefore excluded all person [sic] with male appearance indifferent to their gender identity or any characteristic imputed to it.”  They submit that this does not constitute direct discrimination by reason of gender identity on a proper construction of s 5B(1).  Specifically, they submit that:

The cross-appeal, like the reasons below, proceeds from the flawed premise that any person excluded based on perceived sex is, by that fact alone, also discriminated against on the ground of “gender identity”.  That construction is untenable.  It disregards the statutory requirement that discrimination under s 5B must be “by reason of” a person’s “gender identity”, not simply by reason of the fact that they were perceived to be of the male or female sex by reason of their appearance and have a “gender identity”. It also assumes wrongly that “gender identity” presumes a homogeneity of presentation which conforms to conventional visual markers of sex.  It equally erases the deliberate distinction drawn by Parliament between “sex” and “gender identity” — a distinction which underpins the 2013 amendments and the SDA’s current structure.

(Emphasis added.)

124 Thus, Ms Grover and Giggle submit that the contention that adverse treatment of a person because their appearance does not conform to an observer’s expectation of a man or woman constitutes treatment by reason of gender identity because an identity has been wrongly imputed, overextends the principle of imputation in discrimination law.  Rather, in their submission “[t]he principle [of imputation] turns on the reason for the treatment, not its effect.  It is not sufficient that a person is misperceived; it must be shown that the treatment was by reason of a belief about ‘gender identity’- not merely by reason of sexed appearance.”

7.6.2    No knowledge requirement is implied

125 It is unnecessary in this case to determine whether the primary judge correctly held that knowledge of gender identity in the sense of self-perception is required to establish direct discrimination under s 5B(1)(a).  This is because in my view subsections 5B(1)(b) and (c) did not require Ms Tickle to establish that Ms Grover (and through her, Giggle) had actual knowledge that Ms Tickle is a transgender woman.

126 First, there is no express provision in the SDA importing an element of actual knowledge or actual awareness into the test for direct discrimination.  As such, any such element must be implied.

127 Secondly, from a textual perspective the argument appears to be that the requirement to prove actual knowledge of gender identity in a narrow sense (i.e. self-perception of gender) is implicit in the requirement that an aggrieved person must establish discrimination “on the ground” of their gender identity in the chapeau to s 5B(1).  However, that view would require the term “gender identity” in the chapeau to be construed without regard to the expanded definition of that phrase in s 4(1) of the SDA.  It would also ignore the fact that s 5B(1) does not simply proscribe discrimination “on the ground” of the aggrieved person’s gender identity; the section then sets out the circumstances in which a person will discriminate on that ground in subsections (a), (b) and (c), those subsections being preceded by the words “if, by reason of”.  On a natural and ordinary reading of the words, therefore, it suffices to establish direct discrimination under s 5B(1) if the discriminatory conduct occurs simply “by reason of” a characteristic of the kind described in subsections (b) or (c), as opposed to the aggrieved person’s self-perception of their gender which is covered by subsection (a).

128 Nor should the words “by reason of” in s 5B(1) be interpreted as requiring a subjective intention or motive on the part of the alleged discriminator.  By analogy, in determining whether less favourable treatment is “on the ground of the status” or  “by reason of the private life” of a person in s 17(1) of the Equal Opportunity Act 1984 (Vic), Mason CJ and Gaudron J in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359 emphasised the responsibility on courts to take account of and give effect to the statutory purpose of legislation protecting or enforcing human rights, and held that:

It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s. 17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated.  It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations.  A material difference in treatment that is so based sufficiently satisfies the notions of "on the ground of" and "by reason of".

129 Thirdly, this construction best promotes the beneficial and remedial purpose of the SDA:  see at paragraph 41 above.  As I have earlier explained, in defining direct discrimination to include discrimination by reason of characteristics of the kind described in subsections (b) and (c), s 5B(1) recognises that it is commonly the variance between a person’s gender-related outward characteristics, on the one hand, and the gender with which a person subjectively identifies, on the other hand, that leads to discrimination against transgender men and women.  Thus, direct discrimination under s 5B(1) not only protects against discrimination by reason of the aggrieved person’s gender identity in terms of their subjective sense of identity, but also by reason of a characteristic generally appertaining, or imputed, to persons with the same gender identity:  see paragraph 95 above.  In turn, the reference to characteristics in s 5B(1)(b) and (c) is plainly a reference to the gender-related characteristics which are included in the statutory definition of gender identity and extend to gender-related appearance and other outward social markers.  It follows that, in preventing discriminatory conduct by reference to a “characteristic” rather than the protected attribute itself, subsections (b) and (c) are concerned with addressing discrimination based on stereotyping:  Commonwealth v HREOC at 207 (Wilcox J).  As, for example, Mortimer J (as her Honour then was) said in Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; (2015) 327 ALR 460 at [195]:

At base, distinctions between protected attributes and real or perceived characteristics associated with those attributes permits the kind of stereotyping which anti-discrimination laws are designed to prevent.  If there is an apprehension about what an individual might do, or how she or he might act, because of views or behaviour attributed to people with the protected attribute of that individual, acting on such an apprehension is just as discriminatory as treatment because of what the individual has done, or how the individual has acted.

130 If, however, proof of actual knowledge that a person identifies relevantly as a transgender woman was required to establish discrimination under sub-sections 5B(1)(b) or (c), this purpose would not be achieved.  It would not suffice, for example, to establish discrimination under s 5B(1) for a transgender woman to establish that she was discriminated against because the discriminator did not consider her physical features to be sufficiently female or that her voice sounded too masculine.

131 Fourthly, s 5B(1) of the SDA (and its analogues under the SDA) should be construed in a way that allows for it to operate in a practical way within the settings with which the SDA deals: see, by analogy,  Watts v Australian Postal Corporation [2014] FCA 370; (2014) 222 FCR 220 at [32] (Mortimer J, as her Honour then was).  In this regard, unless gender identity is expressly disclosed, discriminators are likely to make impressionistic and unilateral judgements of a person’s gender.  Yet, as Ms Tickle submits, the fundamentally personal nature of gender identity means that a person’s gender identity may not be broadcast to the public at large; nor should an aggrieved person be required to disclose their gender identity so as to be protected against direct discrimination.  This is particularly so given that the forced disclosure of gender identity against a person’s will is itself a form of discrimination and part of the mischief which the 2013 Amendment Act was intended to remedy.  Conversely, actual knowledge of a person’s gender identity by the discriminator at the time of the offending conduct may be very difficult for an aggrieved person to prove, as Ms Tickle also contends.

132 It follows that importing into the test for discrimination in s 5B(1), a requirement that a discriminator actually know the aggrieved person’s gender identity would, relevantly, thwart or undermine the statutory object of eliminating discrimination on the ground of gender identity so far as is possible:  SDA s 3(b).  It would also be inconsistent with s 27 of the SDA which renders it unlawful for a person to request or require another person to provide information if the information would enable the requester to unlawfully discriminate.  As the Explanatory Memorandum to the 2013 Amendment Act explained at [63]:

For example, it would be unlawful for an employer to ask an applicant of female appearance with a masculine sounding voice for her medical history, but not to ask the same question of other applicants, in order to avoid hiring a transgender person.

(See also the example given in the note to s 27 of the SDA.)

133 Thus, while the employer in this example would not know whether the female applicant was a transgender woman at the time of asking their question, s 27 nonetheless renders the employer’s conduct in asking the question unlawful where the question was asked because the a particular aspect of the applicant’s presentation raised a suspicion in the employer’s mind that the person may be transgender and the employer did not want to engage a person with that gender identity.

134 Fifthly, I agree with Ms Tickle’s submission that to require knowledge or awareness of gender identity would, in some cases, enable a person to evade the proscriptions against discrimination on the ground of a protected attribute such as gender identity simply by asserting that they had no knowledge of the protected attribute.  The point was aptly illustrated by Ms Tickle in explaining that:

To put it more starkly, as was the case here, Ms Grover denies that persons other than cisgender women can be female.  Ms Grover and Giggle therefore view transgender women as (biological) men.  Ms Grover is the sole director and CEO of Giggle and was at all material times its “controlling mind”.  How could Ms Grover and Giggle ever discriminate by reason of Ms Tickle’s gender identity as a transgender woman, in circumstances where they do not accept the existence of the protected attribute?

135 As this example highlights, to hold that a person who denied the existence of the gender identity could thereby evade a contravention of the SDA cannot be seen to promote the statutory object of eliminating discrimination on the ground of gender identity so far as possible.  To the contrary, it would permit conduct which was liable to perpetuate discrimination on that ground.

136 It follows for these reasons that in my view there is no basis on which to imply a requirement that the discriminator have actual knowledge of a person’s gender identity (relevantly, as a transgender woman) into s 5B(1) of the SDA, at least where it is sought, as here, to establish discrimination by reason of the characteristics referred to in s 5B(1)(b) or (c).

7.7    Less favourable treatment under s 5B(1):  who is the proper comparator?

137 It will be recalled that in order to establish direct discrimination under s 5B(1), it is also necessary to establish that the discriminator has treated the aggrieved person “less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity.”  As such, it is necessary to ask under s 5B(1):  who is the person with a different gender identity who is the proper comparator for the aggrieved person?

138 The primary judge did not embark upon the question of who was the appropriate comparator for the purposes of s 5B(1) because his Honour held that the direct discrimination claim must be dismissed by reason of Ms Tickle’s failure to establish actual knowledge of gender identity.  While the comparator in cases of direct and indirect discrimination may not always align, his Honour held at [80] in the context of Ms Tickle’s indirect discrimination claim that the proper comparator “is self-evident:  cisgender women.  That enables the treatment of transgender women to be compared to the treatment of cisgender women by the application of the imposed condition as to appearance.”  On the cross-appeal, Ms Tickle contends that the same comparator (cisgender women) is appropriate in this case for the purposes of her direct discrimination claim under s 5B(1).  On Ms Tickle’s case, therefore, the criterion of less favourable treatment would be made out because a cisgender woman would not have been excluded from the Giggle App.

139 On the other hand, Ms Grover and Giggle submit that the proper comparator is a cisgender man and, as they would have excluded such a person from accessing the Giggle App, Ms Tickle is unable to establish that she was treated less favourably.  Ms Grover and Giggle also contend that the primary judge failed to engage with Ms Tickle’s alleged assumption that the proper comparator is necessarily a cisgender woman where the comparator will depend on the context and may include individuals with other identities such as non-binary or gender fluid.  However, this submission must fail because there is no such assumption made by Ms Tickle or the primary judge.  Furthermore, I agree with the contention by Ms Grover and Giggle that “[t]o universalise ‘cisgender woman’ as the baseline comparator is to erase the very diversity s 5B was intended to protect”.  As the Commissioner submits, the appropriate comparator will depend upon the circumstances including how an aggrieved person frames their own gender identity.  In the context of discrimination based on gender-related appearance under s 5(1)(b) or (c), the appropriate comparator is a person who experiences no discord between their gendered self-identification and perceived presentation.

140 It follows that I agree with Ms Tickle that the appropriate comparator for Ms Tickle as a transgender woman seeking access to the Giggle App under s 5B(1) is a cisgender woman seeking access to the Giggle App, and not a cisgender man.  This approach is consistent with my findings above that part of the discriminatory mischief which the 2013 Amendment Act was intended to address was treatment of transgender people in accordance with their assigned sex at birth, rather than their gender-related self-identification.  A comparison between a transgender woman and cisgender man in a case such as the present would, in effect, re-enact that discrimination and invalidate the gender identity and/or gender presentation of a transgender woman.  Such an approach is in tension with the protective purposes of the SDA in relation to gender-diverse people.

141 This conclusion is also supported by the way in which courts have interpreted and applied analogous discrimination statutes.  The decision in Woodforth v Queensland [2017] QCA 100; (2018) 1 Qd R 289 is a case in point.  In that case, the applicant, who suffered from a severe hearing impediment, claimed direct discrimination under the Anti-Discrimination Act 1991 (Qld) (ADA (Qld)) on the basis that she was treated less favourably by the police in investigating various complaints because of her inability to communicate by conventional speech.  The Appeal Tribunal had rejected her claim on the basis that the relevant comparator was a person who was not hearing impaired but had communication difficulties, applying the High Court’s decision in Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92.

142 However, McMurdo JA in Woodforth (with whose reasons Holmes CJ and Bond J agreed) held that the Appeal Tribunal had erred in overlooking the combined operation of ss 8 and 10 of the ADA (Qld) which proscribed discrimination on the basis of a “characteristic” of a disability, in contrast to the Disability Discrimination Act 1992 (Cth) (DDA (Cth)) considered in Purvis.  As a result, McMurdo JA held at [53] that:

In the present case [s 10 of the ADA (Qld)] proscribed discrimination on the basis of the applicant’s inability to communicate by speech.  That proscription would be ineffective if the characteristic of a disability was also to be treated as a “circumstance” in the comparison for the purposes of s 10.  It would mean that there could not be direct discrimination on the basis of a characteristic of an impairment, because the comparator also would be a person with that characteristic.

143 For this reason, McMurdo JA held at [57] that the appropriate comparison was between the applicant as a person with a hearing impairment and an inability to communicate effectively by conventional speech, on the one hand, and a person without that impairment and that characteristic, on the other hand.  Her Honour also held that the decision in Purvis, where there was no provision proscribing discrimination on the basis of a characteristic of a disability, was distinguishable (as it is from the present case for the same reasons).  In Purvis, the plurality (Gummow, Hayne and Heydon JJ) had held in relation to a claim of direct discrimination under s 5(1) of the DDA (Cth) that the relevant comparator was a person without the aggrieved person’s disability who engaged in the same violent behaviour towards staff and others as the aggrieved person, despite that behaviour being a symptom of his disability.

144 In circumstances where s 5B of the SDA similarly proscribes discrimination on the basis of a “characteristic”, Woodforth therefore supports the conclusion that the appropriate comparator in the present case is a person who has a different gender identity and a different outward manifestation of that identity, in that they lack the appearance-based characteristics stereotypically imputed to transgender women.  Because those characteristics may include, for example, a discriminator’s perception that certain physical features are associated with a person who was assigned the male sex at birth, the appropriate comparator is someone who lacks those characteristics, being a cisgender woman.

145 Another way of conceptualising this comparator is that the requirement that the comparison be undertaken in circumstances “that are the same or are not materially different” means in the present case that the comparison be drawn between a transgender woman and a cisgender woman.  This is because the “circumstances” for present purposes involve applying for access to the Giggle App based on a bona fide attempt to access the Giggle App stemming from Ms Tickle’s self-identification as a woman.  Conversely, the “circumstances” would be “materially different” if a transgender woman seeking access to the Giggle App was compared to a cisgender man who was trying to access the Giggle App, but not on the basis of any bona fide purpose or belief that he was entitled to be admitted to the women’s only app.

146 In short, on either analysis, a cisgender woman is the appropriate comparator for the purposes of determining whether Ms Tickle was treated less favourably so as to meet this criterion for direct discrimination under s 5B(1) of the SDA.

7.8    Did the primary judge err in failing to uphold Ms Tickle’s claims of direct discrimination?

7.8.1    Relevant principles for revisiting factual findings on appeal

147 As the Full Court (White, Gleeson and Wheelahan JJ) held in Nationwide News Pty Ltd v Rush [2020] FCAFC 115; (2020) 380 ALR 432 at [89]-[90], the relevant principles with respect to the approach required of an appellate court in determining challenges to findings of fact made by a trial judge are settled.  Relevantly, in Fox v Percy [2003] HCA 22; 214 CLR 118 at [25]–[26], Gleeson CJ, Gummow and Kirby JJ explained that:

Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”. In Warren v Coombes [(1979) 142 CLR 531], the majority of this Court reiterated the rule that:

[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.  In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.

As this Court there said, that approach was “not only sound in law, but beneficial in … operation”.

After Warren v Coombes a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not.

148 These principles were affirmed in the joint judgment of Bell, Gageler, Nettle and Edelman JJ in Lee v Lee [2019] HCA 289; (2019) 266 CLR 129 at [55] as follows:

A court of appeal is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are “glaringly improbable” or “contrary to compelling inferences” is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.  Thereafter, “in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge” …

(Citations omitted)

149 As I explain, this is a case where this Court is “in as good a position as the trial judge” to draw inferences based upon undisputed facts and findings by the primary judge.

7.8.2    Did the primary judge err in failing to hold that the exclusion of Ms Tickle on Ms Grover’s first visual review constituted direct discrimination? (Cross-appeal ground 1)

150 Applying the findings above as to the proper construction of s 5B(1) and the statutory definition of gender identity, in my view the primary judge ought to have found that the exclusion of Ms Tickle by Ms Grover on her manual review of Ms Tickle’s selfie constituted direct discrimination.

151 Ms Tickle was initially excluded from the Giggle App at some point before 4 October 2021, most likely in September 2021 after Ms Grover reviewed her photograph for the first time.  At first instance, Ms Grover gave evidence that “the photograph would have come up in a daily users, and so we would just look”.  The primary judge describes Ms Grover’s evidence as to this exclusion at [126] of the primary judgment:

When asked about the reason for removing Ms Tickle on viewing her application photograph Ms Grover said “the same as removing all males, yes”.  As Ms Grover has otherwise in her evidence stated that she does not specifically remember removing Ms Tickle from the Giggle App, I take this answer to mean that Ms Grover believes she would have removed Ms Tickle with the intention of effecting the Giggle App’s rule that it be female only.  In other words, I accept Ms Grover’s evidence that the likely reason for the applicant’s removal from the Giggle App based upon her application selfie was not for the reason that Ms Tickle is a transgender woman, but rather because Ms Grover perceived the selfie to be a photograph of a male and would have removed Ms Tickle for that reason.  This accords with [Giggle and Ms Grover’s] statement in their written submissions that Ms Tickle was excluded from the Giggle App by Ms Grover upon her visual perception of Ms Tickle’s male sex.

152 However, for the reasons earlier held, it was not necessary for Ms Grover (and through her, Giggle) to know of Ms Tickle’s gender identity for direct discrimination to be established.  It was sufficient to show only that Ms Grover and Giggle had a policy of excluding transgender women from the Giggle App, and applied that policy to Ms Tickle by denying her access to the Giggle App on the basis of Ms Grover’s visual perception that Ms Tickle was a man and, therefore, her gender-related appearance.  This was clearly established on the evidence and accepted by the primary judge.

153 First, as the primary judge held at [100], Ms Grover and Giggle “adopted early on an explicit policy of excluding transgender women from access to the Giggle App”. The intent behind that policy is directly discriminatory, because it is based on treating transgender women “the same as … all males” (PJ at [126]), i.e., by drawing no distinction between transgender women and cisgender men.  For this reason, the condition of admission applied by Ms Grover – being the requirement that a person appears, on a manual review of their selfie, to have been assigned the female sex at birth – is not facially neutral.  The condition is not merely a condition that transgender women find difficult to meet; it is specifically intended to give effect to Ms Grover and Giggle’s policy of excluding transgender women from the Giggle App in circumstances where they do not accept transgender women as women.

154 Secondly, it is irrelevant if the dominant or substantial reason for Ms Grover’s manual review of selfies in accordance with the Giggle App policy was to exclude men because it is not necessary to establish that a “reason” for discriminatory conduct is the dominant or substantial reason: s 8 of the SDA.  It is sufficient to establish that one reason for the policy was the exclusion of transgender women.

155 Thirdly:

(1)    Ms Grover agreed in evidence that “[t]he reason for the removal [of Ms Tickle] was an examination of the photograph” and that, when she examined the photograph, she “decided that [Ms Tickle] was not a woman and removed [Ms Tickle] from the app”.

(2)    Ms Grover gave evidence that the reason for Ms Tickle’s removal was based on Ms Grover looking at the photograph and this was “the same as removing all males”; and

(3)    it was Ms Grover’s evidence that “I would have seen the photo and just gone, “Male,” and blocked”.

156 As such, Ms Grover’s evidence itself established that she removed Ms Tickle from the Giggle App on the basis of her perception of Ms Tickle’s appearance as a cisgender man.  This suffices to establish less favourable treatment for the purposes of ss 5B(1)(b) or (c) of Ms Tickle by Ms Grover based on physical characteristics which Ms Grover considered were associated with persons assigned male at birth.  Such physical features appertain generally to transgender women by reason of the discordance which transgender women tend to experience between their self-identification and their gender presentation, and the difficulties they face in the process of, and after, transition.

157 It follows that in excluding Ms Tickle from the Giggle App, Ms Grover and Giggle treated Ms Tickle less favourably than a cisgender woman by reason of her gender-related appearance and therefore her gender identity as defined in s 4(1).  Respectfully, therefore, I consider that the primary judge erred in failing to hold that the exclusion of Ms Tickle from the Giggle App on Ms Grover’s first visual review constituted direct discrimination in relation to a refusal of services under s 5B(1)(b) or (c) and s 22 of the SDA.

7.8.3    Did the primary judge err in failing to hold that the alleged refusal to readmit Ms Tickle constituted direct discrimination? (Cross-appeal ground 3)

158 In relation to the failure to readmit Ms Tickle to the Giggle App following Ms Tickle’s requests, the primary judge held at [132]:

However, that claim of direct discrimination by reason of not being readmitted to use the Giggle App suffers from a shortfall of evidence establishing Ms Tickle’s messages made the respondents aware of her gender identity, and that there was no response to Ms Tickle’s inquiries by reason of her gender identity. There was also no evidence as to any actual decision not to readmit, nor any reason for non-readmission beyond the reason for exclusion in the first place, namely that Ms Grover considered Ms Tickle had the appearance of a cisgender man.

159 In my view, and contrary to the approach of the primary judge, Ms Tickle has established the second instance of direct discrimination.  Although I have found that knowledge or suspicion of an aggrieved person’s gender identity is not a necessary condition of direct discrimination, it may further clarify the “reason” for discriminatory conduct.  In this regard, the evidence clearly established that Ms Grover was on notice of Ms Tickle’s self-identification as a woman, based on Ms Grover’s own assumption (explained further at paragraph 168 below) that Ms Tickle was (or may be) a woman before reviewing Ms Tickle’s selfie on or after 4 October 2021.

160 The evidence establishes that Ms Grover’s behaviour, as exhibited in correspondence with Ms Tickle, abruptly changed upon review of Ms Tickle’s selfie.  The primary judge found that Ms Tickle sent an email to Ms Grover’s email address and a Giggle email address on 4 October 2021, after Ms Tickle noticed in September 2021 that her access to the Giggle App had been restricted and she had received no response to her in-App message (which the primary judge was not satisfied had been received).   That email stated:

Hi Sall,

I sent this message through your app a week ago and haven’t received a response as yet.  Sorry to disturb you, but would you mind passing it on to the appropriate person please?  I couldn’t find any other way of contacting tech support.

Thanks in advance!

Cheers,
Roxy.

161 The in-App message referred to in the email stated that:

I downloaded your app earlier this year and have skimmed the discussion threads in Giggle Talk but due to having a super busy year I haven’t had time to join in.  I now thankfully have more spare time so I wanted to start contributing.  I tried to set up a username a few times this weekend but I kept on getting an error message… something like “user blocked”?  Are you able to help please?

162 On 4 October 2021, Ms Grover replied:

Hi Roxy,

I am so sorry for this!

Can you send me your phone number and I will personally look into it right now.

163 Ms Tickle provided her phone number on 11 October 2021.  Ms Tickle then followed up her request on 16, 20, 22, 28 and 29 October 2021, and on 5 November 2021.  In these messages, Ms Tickle refers to getting the “user blocked” error messages again when she tried to set up her username and requested assistance “to see if we can work out what is going wrong”.   In relation to these emails, Ms Grover stated in cross-examination that “[s]ending eight emails to a female only app when you’re aware that it’s a female only app and you’re also aware that you’re biologically male is not polite, in my opinion”.

164 In relation to her perspective on the exchanges in October 2021, Ms Grover deposed at [69]-[72] of her Affidavit of 23 October 2023:

I did not become aware of the Applicant joining the App until I received texts and calls to my phone in October 2021.  The messages were to the effect that the member had been removed from the App.  I did not answer the calls or respond to the texts.  I did not keep these texts.

I had the Applicant's phone number from the text, so I typed it into Athena, the Giggle server.  I looked the onboarding picture and saw a male person. …

I called my Dad and told him that a man had said he was a Giggle user and had been removed from the App. I told my Dad that a man had called and texted my phone. My Dad told me to block his phone number and ignore him, and that is what I did.

I felt very scared, threatened, and harassed that this man had called and text my phone. The thoughts going through my mind were "is this person going to turn up at my house?" I found the texting and calling myself to be a gross invasion of privacy and overstepping my boundaries. I had no idea how this man had obtained my personal mobile phone number. As far as I am aware my phone number is not publicly available anywhere. I was scared. I was repulsed. I did not even think to keep the text. I think I deleted it. I have searched my phone and I have no record of it.

(I note that page 1 of Mr Grover’s affidavit of 23 October 2023 appears to be erroneously dated 23 October 2022.)

165 This evidence was accepted by the primary judge, save that his Honour found that Ms Grover’s evidence that she had no idea how Ms Tickle had obtained her mobile phone number was “at best disingenuous” as she almost certainly obtained it by reason of Ms Grover communicating it to her: PJ [122].  Specifically, at PJ [121], the primary judge held that:

Ms Grover confirms that she received calls and texts from Ms Tickle in October 2021, which she did not keep.  She recalls entering the phone number which Ms Tickle used to make those calls into Athena [the Giggle App’s backend server] and viewing Ms Tickle’s onboarding selfie.  Ms Grover than called her father and told him that a man, who said that he was a Giggle App user and had been removed form the App, had called her.  Ms Grover’s father told her to block the phone number and ignore the telephone call and text she had received, which she did.

166 I note that the primary judge also found at [126] that “Ms Grover’s evidence is that she did not look again at Ms Tickle’s Giggle App selfie when she was contacted by Ms Tickle at a later date about her removal from the Giggle App.  There is no reason to doubt that evidence.”  It is difficult to explain this finding in light of the finding at [121].  However, given that the finding at [121] directly corresponds with the evidence of Ms Grover quoted at paragraph 165 above, I accept that finding.  The inconsistent finding at [126] that Ms Grover did not look at Ms Tickle’s Giggle App selfie again appears to have been an erroneous slip in his Honour’s reasons, and the parties did not contend that anything turned upon this inconsistency.

167 Several conclusions follow in my view.

168 First, Ms Grover’s initial email to Ms Tickle advising that she “will personally look into it right now” gives rise to a compelling inference that Ms Grover initially assumed that Ms Tickle was a woman or was at least prepared to entertain that possibility.  Notwithstanding the primary judge’s understandable finding that Ms Grover’s evidence that she felt scared and threatened “that this man had called and text my phone” was disingenuous, that evidence nonetheless strongly suggests that Ms Grover would not have interacted with Ms Tickle in their email chain absent her assumption at the time of those emails that Ms Tickle was, or may be, a woman and may therefore have been wrongly blocked from accessing the Giggle App.

169 Secondly, Ms Grover also gave evidence that, upon review of Ms Tickle’s photograph in response to Ms Tickle’s requests, Ms Grover then “saw a male person”.  In circumstances where Ms Grover assumed before review of the selfie that Ms Tickle was, or may be, a woman, her perception that Ms Tickle was a man on viewing Ms Tickle’s selfie arguably established that Ms Grover denied Ms Tickle’s self-identification as a woman in a manner prohibited by s 5B(1)(a) of the SDA and refused to readmit her for that reason.  In any event, the critical point is that Ms Grover’s change in behaviour following review of Ms Tickle’s selfie affords a compelling basis on which to infer that Ms Grover decided not to readmit Ms Tickle based on her perception that Ms Tickle had the physical gender-related appearance of a man and, therefore on the basis of a protected characteristic generally appertaining, or imputed generally, to a transgender woman such as Ms Tickle.  This is sufficient in turn to establish direct discrimination contrary to s 5B(1)(b) and (c) of the SDA and s 22 of the SDA, when read with the definition of gender identity in s 4(1).

170 Finally, it is not necessary to identify a specific date on which the decision not to readmit Ms Tickle was made by Ms Grover.  It suffices to point to Ms Grover’s own evidence that, following her review of Ms Tickle’s photograph, Ms Grover saw a man, blocked Ms Tickle’s phone number and ignored her.

171 For these reasons, and contrary to Ms Grover and Giggle’s submissions, it was not material that there was no cross-examination of Ms Grover on which particular aspects of Ms Tickle’s selfie might have led her to form the view that Ms Tickle is a man, such as the minutiae of details like the shape of Ms Tickle’s shirt or the length of her hair.  This is so because it was Ms Grover’s  own evidence that she perceived Ms Tickle as a man on review of her selfie at some time after 4 October 2021, notwithstanding that Ms Tickle presented herself as a woman in correspondence by the use of the name “Roxy” and her request to be granted access to the woman only Giggle App.  It is also not necessary to show that Ms Grover had actual knowledge that Ms Tickle was a transgender woman at any point for the reasons I have earlier given, which in any event is a form of gender identity that Ms Grover does not recognise.

172 As direct discrimination and indirect discrimination are mutually exclusive, it follows from my finding on the cross-appeal that this is a case of direct discrimination, that the primary judge erred in holding that this was a case of indirect discrimination.

8.    APPLICATIONS FOR LEAVE TO INTERVENE/APPEAR AS AMICUS CURIAE

8.1    Relevant principles

173 The principles regarding applications for leave to intervene or to appear as amicus curiae were explained by the High Court in Roadshow Films Pty Ltd v iiNet Limited [2011] HCA 54; (2011) 248 CLR 37 and may relevantly be summarised as follows.

(1)    “A non-party whose legal interest, for example, in other pending litigation is likely to be affected substantially by the outcome of the proceedings … will satisfy a precondition for leave to intervene” (at [2]).

(2)    Ordinarily an indirect or contingent affection of legal interests following the extra-curial operation of principles enunciated in the court’s decision or their effect on future litigation will not suffice (at [2]).

(3)    The court may grant leave to intervene where a person having the necessary legal interest establishes that the parties may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it in reaching a correct determination (at [3]).

(4)    While it is unnecessary for a person seeking to be heard as amicus curiae to establish a legal interest, the court will nonetheless need to be satisfied that “it will be significantly assisted by the submissions of the amicus and that any costs to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the expected assistance” (at [4]).

(5)    “[W]here the parties are large organisations represented by experienced lawyers, applications for leave to intervene or make submissions as amicus curiae should seldom be necessary or appropriate and if such applications are made it would ordinarily be expected that the applicant will identify with some particularity what it is that the applicant seeks to add to the arguments that the parties will advance” (at [6]).

8.2    The application by the Australian Christian Lobby for leave to appear as amicus and by the Free Speech Union for leave to intervene

174 By way of interlocutory applications lodged on 17 December 2024 and 5 April 2025 respectively, the Australian Christian Lobby (ACL) sought leave to appear as amicus (while not pressing its application to intervene) and the Free Speech Union (FSU) applied to intervene or to appear as amicus in the appeal.  The ACL filed written submissions on 26 February 2025 and then, in reply, on 2 April 2025.  The FSU filed submissions on 16 May 2025.

175 On 12 June 2025, the Full Court dismissed the interlocutory applications of the ACL and the FSU noting that it would provide reasons in its final reasons for judgment.

176 The ACL submitted that its proposed legal submissions were capable of significantly assisting the Court in relation to questions of law and arguments which were not fully advanced by the parties and were unlikely to be raised in the appeal, focusing upon the construction of s 7D and the validity of s 5B of the SDA.  The ACL also submitted that the case would affect its indirect interests in Christian and other faith-based bodies conducting same sex activities to the exclusion of transgender women.  The application by the ACL was opposed by Ms Tickle and ultimately by Ms Grover and Giggle.

177 The Court refused leave to the ACL to appear as amicus curiae having regard to a number of considerations including that:

(1)    the matters which the ACL sought to raise were unlikely to add to the parties’ submissions;

(2)    the parties have legal representation;

(3)    while the role of amicus is not to be partisan, the ACL’s submissions indicated that its role would be more akin to a party;

(4)    an amicus had already been appointed by the Court, being the Commissioner, who is a statutory officer and was appointed to provide non-partisan submissions; and

(5)    the ACL’s contentions as to the potential indirect effect on its interests were largely speculative in any event.

178 The FSU was also refused leave to intervene or to appear as amicus.  It accepted that it had no direct legal interest which would be affected by the appeal or cross-appeal.  However, the FSU submitted that it provided members with legal representation in strategic cases which involved freedoms which the FSU seeks to uphold, thereby protecting the interests of its members.  The FSU also submitted that its submissions would be useful and different, challenging the implicit assumption underlying the primary judgment that the establishment of online communities exclusively for members of a particular group could constitute unlawful discrimination in the provision of services or making available of facilities.  Furthermore, the FSU submitted that the primary judge had not considered the freedom of association in article 22 of the International Covenant on Civil and Political Rights.  Furthermore, the FSU was concerned that litigation of the present kind could chill free speech and wished to submit that the Court ought not to grant relief under s 46PO of the AHRC Act in cases which are primarily concerned with broader political concerns.

179 The application by the FSU was opposed by the parties.

180 Leave was refused on the bases that the FSU had not identified any legal interest which could be affected, and that the FSU sought to agitate issues not in dispute between the parties. Furthermore, as Ms Tickle submitted, there was no cogent basis on which the Court could find that she was not entitled to relief under s 46PO of the AHRC Act if she was otherwise successful.

8.3    The application by the Lesbian Action Group for leave to intervene

181 By way of interlocutory application lodged on 3 April 2025, the Lesbian Action Group (LAG) also sought leave to intervene.  The LAG wished to hold events excluding males of all orientations, heterosexual females, bisexuals, and transgender persons who identify as female. The LAG sought an exemption from the operation of the SDA from the AHRC which was ultimately refused on 12 October 2023.  The LAG subsequently sought review of the AHRC’s decision in the Administrative Review Tribunal (ART) (formerly the Administrative Appeal Tribunal (AAT)).  The merits review hearing was conducted on 2 and 3 September 2024, after delivery of the primary judgment.  The LAG could therefore make only a formal submission before the ART that the primary judgment in this case was wrong.  On 20 January 2025, the ART affirmed the AHRC’s decision.  The LAG contended that “by [Tickle], LAG lost an opportunity to argue before the AAT what it considered to be the proper interpretation of the gender identity protections that are found in the SD Act, and how they are to be interpreted together with the sex and sexual orientations based protections”.  In turn, on 17 February 2025, the LAG appealed the decision of the ART to this Court.  The LAG contended that the decision in the present appeal would effectively determine ground three of the LAG’s application in the Federal Court, namely, whether the SDA prioritises the protection and advancement of the human rights of members of the female sex and of lesbians, and, if so, whether the exemption power in s 44 should be administered accordingly.  I note that LAG’s application was ultimately allowed by a single judge on 15 April 2026 in Lesbian Action Group Inc v Australian Human Rights Commission [2026] FCA 432, after the hearing of the present appeal but before delivery of judgment, with ground three of the LAG’s application being held to be unnecessary to decide.

182 The interlocutory application by the LAG was supported by Ms Grover and Giggle but opposed by Ms Tickle.  Ms Tickle submitted that the LAG’s interests would only be indirectly or contingently affected, the parties to the appeal and cross-appeal had legal representation, and there was no reason to suggest that the Court would lack the assistance required to reach a correct determination.  Ms Tickle also submitted that the ability of the LAG to challenge the ART decision before the Federal Court and make submissions on that application would not be materially prejudiced by the Full Court refusing leave to the LAG to intervene in these proceedings.

183 On 12 June 2025, the Full Court granted leave to the LAG to intervene pursuant to r 9.12 of the Federal Court Rules 2011 (Cth) (FCR) on condition that the LAG’s written and oral submissions:

be limited to addressing issues raised on the appeal or the cross-appeal which are also relevant to the grounds pleaded in Lesbian Action Group Inc v Administrative Review Tribunal and Australian Human Rights Commission VID170/2025 …

184 Conditions limiting the length of written submissions and time for oral submissions were also imposed on the grant of leave to intervene.

185 In essence, the Court granted leave because the LAG had established that its interests would be prejudiced if it were not permitted to appear and make submissions.  This is because the Commissioner, who was a party to the LAG’s application for judicial review, was already an intervener on this appeal and therefore had the opportunity to make submissions on issues of construction relevant to the appeal which were also potentially relevant to the LAG’s application for judicial review.  The Court also took into account the limited written and oral submissions on which the LAG sought to rely and considered that its intervention would not unduly prolong the proceedings or disproportionately impact on the parties’ costs.

8.4    The application by Equality Australia Ltd for leave to intervene or to appear as amicus curiae

186 Finally, on 18 July 2025, Equality Australia Ltd filed an interlocutory application for leave to intervene or to appear as amicus curiae in this appeal.  In common with the position adopted by the LAG, Equality Australia’s proposed submissions centred on ground 2 of the appeal, being the meaning of the terms “sex”, “man” and “woman” for the purposes of s 5B(2) of the SDA.

187 The application by Equality Australia was supported by Ms Tickle but opposed by Ms Grover and Giggle.  Ms Grover and Giggle submitted that Equality Australia has no legal interest in the outcome of the appeal, that it seeks to advance a particular view in opposition to a party already granted leave to participate (which, as Ms Grover and Giggle submit, “is not the function of an amicus”), and that it proposes to play a role that “is not materially different from the function already discharged by the [Commissioner]”.  Ms Grover and Giggle further submitted that the issues which Equality Australia seek to address have “already been fully ventilated in the submissions of the parties and the [Commissioner]” and that consistency in the exercise of discretion under r 36.32 of the FCR requires the Court to refuse this interlocutory application.

188 The application by Equality Australia to intervene was granted at the commencement of the appeal on 4 August 2025 limited to the written submissions filed in advance of the hearing and a 10-minute oral address.  In essence, Equality Australia is a national organisation representing LGBTIQ+ people, including transgender and gender diverse people, who have a substantial interest in the interpretation of the SDA.  Equality Australia has also provided support to individuals who have relied upon the protections found in the SDA.  Equality Australia was particularly concerned to make submissions in response to the issues raised by ground 2 of the amended notice of appeal on the meaning of “sex” in the SDA, including in response to the submissions by the LAG.  Having read the submissions which Equality Australia wished to make, the Court accepted that Equality Australia had a useful and different perspective to offer on this issue, should it prove necessary to address it.

9.    COSTS

189 I agree with the orders as to costs proposed by Kennett and Abraham JJ for the reasons they give at [327]-[329] below.

10.    CONCLUSION

190 For the reasons set out above, I would dismiss the appeal, allow the cross-appeal, and substitute for the declaration made by the primary judge, a declaration that Ms Grover and Giggle engaged in unlawful direct discrimination against Ms Tickle contrary to s 22 of the SDA when read with s 5B(1) on the ground of Ms Tickle’s gender identity.  I also agree that the primary judge’s award of damages should be set aside and an award of general damages in the sum of $12,000 and aggravated damages in the sum of $8,000 be made in lieu thereof.

Associate:

Dated:    15 May 2026

REASONS FOR JUDGMENT

ABRAHAM AND KENNETT JJ:

Introduction

191 Giggle for Girls (the Giggle App) was a mobile phone application that provided access to functions such as online chat, the capacity to post content and comment on others’ posts and, for part of its existence, online dating. It was conceived as a safe online space for women, where women could interact without the presence of men. Anyone who sought to use the features of the Giggle App was required to register, which involved providing a mobile telephone number and uploading a photograph (referred to as a “selfie”). The selfie was used by the operator of the platform to verify that the person seeking to join was a woman. The Giggle App was operated by the first appellant, Giggle for Girls Pty Ltd (Giggle), which charged modest fees for access to some features. The second appellant (Ms Grover) is the founder and Chief Executive Officer of Giggle and was at all relevant times its controlling mind.

192 The respondent (Ms Tickle) was designated male at birth but since about June 2017 has identified as a woman including by taking social, medical and legal steps. In October 2019 she underwent gender affirming surgery. On 18 September 2020, her Queensland birth certificate was reissued under the Births, Deaths and Marriages Registration Act 2003 (Qld) (the Qld BDM Act), recognising her to be of the female sex. Ms Tickle uses female pronouns.

193 In about February 2021, Ms Tickle downloaded the Giggle App. She undertook the registration process, which included uploading a selfie. This photograph was assessed by third party artificial intelligence (AI) software designed to distinguish between the facial features of women and men. Ms Tickle gained access to the Giggle App.

194 In September or early October 2021 (after using some of the features of the Giggle App from time to time), Ms Tickle logged on to the App and found that she could no longer post content, comment on others’ posts or see comments made by others. Nor could she purchase “premium content”. As will appear below, this appears to have happened because a person at Giggle (probably Ms Grover) reviewed the selfie that she had uploaded and decided that she should be excluded. She attempted to contact Giggle using an in-app contact form but received no response. She sent several emails to Ms Grover and received a reply to one of them, and also tried to contact Ms Grover by telephone and SMS, but her earlier level of access to the App was not restored.

195 Ms Tickle made a complaint to the Australian Human Rights Commission (AHRC) under s 46P of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act) on 5 December 2021 alleging that, by being given only limited access to the Giggle App, she was being discriminated against on the ground of her gender identity. Her complaint was terminated under s 46PH of the AHRC Act by a delegate of the President of the AHRC on 5 April 2022, on the ground that there was no reasonable prospect of the matter being settled by conciliation.

196 Ms Tickle commenced proceedings in the Federal Court in December 2022 (by which time Giggle had ceased to make the Giggle App available to anyone). A judgment dealing with interlocutory issues was published on 1 June 2023 (Tickle v Giggle For Girls Pty Ltd [2023] FCA 553). The matter then proceeded to a final hearing in April 2024.

197 Reasons (Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 referred to below as J) were published, and an order made requiring Giggle and Ms Grover to pay damages in the sum of $10,000, on 23 August 2024. Having heard further from the parties on the appropriate form of a declaration, the primary judge made a declaration of contravention on 5 September 2024. The declaration was in the following terms.

The respondents, Ms Sally Grover and Giggle for Girls Pty Ltd, engaged in unlawful indirect discrimination against the applicant, Ms Roxanne Tickle, on the ground of her gender identity, contrary to s 22 of the Sex Discrimination Act 1984 (Cth), when read with s 5B(2) of that Act, by imposing a condition on the use of a service, the Giggle App, that users have the appearance of cisgender women, which had the effect of disadvantaging women with a transgender gender identity relative to women with a cisgender gender identity, resulting in the exclusion of Ms Tickle from the use of the Giggle App.

198 Giggle and Ms Grover appeal from those orders. Ms Tickle has filed a cross-appeal seeking a different form of declaration and a larger sum by way of damages.

The statutory scheme

199 Ms Tickle’s claim relies on the Sex Discrimination Act 1984 (Cth) (the SDA). To understand the issues that were agitated below and in the appeal, it is necessary to refer to some key provisions of that Act. (Reference is made here to the provisions as in force in October 2021, when the exclusion of Ms Tickle from services provided by the Giggle App took place.)

200 The relevant operative provision is s 22, which provides as follows.

22 Goods, services and facilities

It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:

(a)    by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b)    in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)    in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

201 Section 22 is subject to various exemptions (ss 31-34, 36-37, 39-44 of the SDA) but none of these is presently relevant.

202 Discrimination on the various “grounds” referred to in s 22 is defined by ss 5 to 7AA of the SDA, each of which must be read with ss 7B to 7D. (Section 7A defines discrimination on the ground of family responsibilities, which is prohibited in some other operative provisions of the SDA but not in s 22.) Sections 5 and 5B are relevant here.

203 Section 5 provides as follows.

5 Sex discrimination

(1)    For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

(a)    the sex of the aggrieved person;

(b)    a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c)    a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.

(2)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

(3)    This section has effect subject to sections 7B and 7D.

204 “Sex” is not defined in the SDA. Originally, “man” was defined in s 4 as “a member of the male sex” and “woman” as “a member of the female sex”. However, these definitions were repealed by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) (the 2013 Amending Act). The 2013 Amending Act also inserted into s 4 a definition of “intersex status” which envisages a person having features that are “neither wholly female nor wholly male” or a “combination of male and female” or “neither female nor male”. It also inserted a definition of “sexual orientation” which refers to “persons of a different sex” (as distinct from, eg “the opposite sex”). These definitions indicate that the SDA does not treat “sex” as a binary concept, a point which is discussed further below. Nor, as a matter of ordinary usage, is a person’s “sex” immutable: Secretary, Department of Social Security v “SRA” (1993) 43 FCR 299 at 304-305 (Black CJ), 325 (Lockhart J), 328 (Heerey J agreeing with both Black CJ and Lockhart J) (SRA).

205 Section 5B provides as follows.

5B Discrimination on the ground of gender identity

(1)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identity if, by reason of:

(a)    the aggrieved person’s gender identity; or

(b)    a characteristic that appertains generally to persons who have the same gender identity as the aggrieved person; or

(c)    a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity.

(2)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person’s gender identity if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the aggrieved person.

(3)    This section has effect subject to sections 7B and 7D.

206 “Gender identity” is defined in s 4 as follows:

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.

207 Sections 5(1) and 5B(1) define forms of what is referred to generally (including in these reasons) as “direct discrimination”. Sections 5(2) and 5B(2) are among the provisions of the SDA that identify what is termed “indirect discrimination” (that is, the imposition of a condition that is not overtly discriminatory but operates to the disadvantage of people with a particular characteristic). Sections 7B and 7C affect the application of provisions of the latter kind. They provide as follows.

7B Indirect discrimination: reasonableness test

(1)    A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 5A(2), 5B(2), 5C(2), 6(2), 7(2) or 7AA(2) if the condition, requirement or practice is reasonable in the circumstances.

(2)    The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:

(a)    the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and

(b)    the feasibility of overcoming or mitigating the disadvantage; and

(c)    whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

7C Burden of proof

In a proceeding under this Act, the burden of proving that an act does not constitute discrimination because of section 7B lies on the person who did the act.

208 Sections 5 and 5B are also (along with the other provisions that define various forms of discrimination) subject to s 7D. It provides as follows.

7D Special measures intended to achieve equality

(1)    A person may take special measures for the purpose of achieving substantive equality between:

(a)    men and women; or

(aa)    people who have different sexual orientations; or

(ab)    people who have different gender identities; or

(ac)    people who are of intersex status and people who are not; or

(b)    people who have different marital or relationship statuses; or

(c)    women who are pregnant and people who are not pregnant; or

(d)    women who are potentially pregnant and people who are not potentially pregnant; or

(e)    women who are breastfeeding and people who are not breastfeeding; or

(f)    people with family responsibilities and people without family responsibilities.

(2)    A person does not discriminate against another person under section 5, 5A, 5B, 5C, 6, 7, 7AA or 7A by taking special measures authorised by subsection (1).

(3)    A measure is to be treated as being taken for a purpose referred to in subsection (1) if it is taken:

(a)    solely for that purpose; or

(b)    for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.

(4)    This section does not authorise the taking, or further taking, of special measures for a purpose referred to in subsection (1) that is achieved.

209 Finally, s 8 provides that, in each of the provisions that define discrimination (including s 5 and s 5B), doing an act “by reason of a particular matter” includes doing the act by reason of two or more matters that include that matter. The particular matter (eg the person’s sex or gender identity) does not need to be the dominant or substantial reason for doing the act.

The issues in the proceeding below

210 Ms Tickle filed an amended statement of claim (ASOC) on 4 May 2023. The important allegations in that document, for present purposes, were as follows.

(a)    Ms Tickle “is a woman” (ASOC [6]).

(b)    Ms Tickle has since around 2017 “presented her physical appearance to be female” and “used the female name of ‘Roxanne Tickle’” (ASOC [7]).

(c)    Ms Tickle’s “gender-identity is female” (ASOC [10]).

(d)    Ms Tickle is protected from being unlawfully discriminated against because of her “perceived gender identity as a transgender person” (ASOC [11]).

(e)    Giggle restricted Ms Tickle’s access to the Giggle App because Ms Grover “treated [Ms Tickle] as if she was not a woman” (ASOC [24]).

(f)    Giggle on the instructions of Ms Grover (ASOC [34]):

… imposed a condition that to be allowed Ordinary Access to the Giggle App, a user must be either:

a.    be (sic) a cisgendered female; or

b.    be (sic) determined as having cisgendered physical characteristics by [Ms Grover] on review of a photograph provided during the Application Process.

(Imposed Condition)

(g)    Giggle and/or Ms Grover discriminated against Ms Tickle “on the basis of her gender identity, within the meaning of s 5B(1) of the SDA” by (ASOC [35]):

a.    using the Imposed Condition;

b.    excluding her from using and accessing the Giggle App which was otherwise available to cisgender women; and

c.    not responding to [Ms Tickle’s] requests for access.

(h)    Giggle and/or Ms Grover “treated [Ms Tickle] less favourably than cisgender women because [she] is a transgender woman” (ASOC [37]).

(i)    Giggle and/or Ms Grover discriminated against Ms Tickle “on the basis of her gender identity, within the meaning of s 5B(2) of the SDA” (ASOC [38]):

… by the Imposed Condition, which has disadvantaged and is likely to continue to disadvantage transgender women because:

a.    they will not be able to gain Ordinary Access to the Giggle App; and

b.    they are vulnerable to disparaging conclusions and exclusion based on their appearance.

211 The term “cisgender woman” appears to have been used here to denote a person who was designated female at birth and whose gender (or perhaps gender identity) corresponds to their sex registered at birth. The primary judge understood the expression in this way (at J [4]).

212 Giggle and Ms Grover filed a defence on 7 April 2023 which responded to the initial version of Ms Tickle’s statement of claim. The materials before us do not include an amended defence. In any event, as the primary judge observed, the defence consisted largely of blanket denials and did not assist significantly in identifying the issues that required resolution. Notably, Giggle and Ms Grover denied that Ms Tickle was a woman; that her gender identity was female; and that she was entitled to protection against discrimination on the basis of a “perceived gender identity as a transgender person”.

213 Giggle and Ms Grover also alleged in their defence that ss 5B and 5C of the SDA were constitutionally invalid.

214 The primary judge was critical of Ms Tickle’s pleaded case because it “did not clearly or coherently distinguish between direct and indirect discrimination, instead confusing the two” (at J [41]). The allegation of direct discrimination in ASOC [35] was directed to s 5B(1) but was particularised by reference to the imposition of a condition, which is a feature of s 5B(2). On the other hand, as his Honour noted at J [42], the requirements of the “imposed condition” did not seem to relate to indirect discrimination because they amounted to a “policy of direct discrimination”. These shortcomings had not been identified by Giggle and Ms Grover. His Honour said at J [43]:

When these pleading problems were pointed out in the course of closing submissions, senior counsel for Ms Tickle maintained claims of both direct and indirect discrimination, asserting that these were pleaded in the alternative, but the substance of the case advanced ultimately only really relied upon indirect discrimination.

215 The primary judge summarised his understanding of Ms Tickle’s case as follows (at J [46]).

Doing the best that I can with the pleadings, given the deficiencies identified above, Ms Tickle alleges that:

(a)    a condition was imposed by Giggle, on the instruction, or at the will, of Ms Grover — that is, she primarily makes a claim of indirect discrimination by the imposition of a condition;

(b)    the condition was that, to be allowed ordinary access to the Giggle App, a user had to be a cisgendered female, or be determined as having cisgendered female physical characteristics by Ms Grover on a review of the selfie photograph provided by a prospective App user during the process of applying to use the Giggle App — this aspect of Ms Grover reviewing photographs at the registration stage, as opposed to a later review of the AI approvals, is not supported by the evidence;

(c)    in breach of s 22 of the SDA, Giggle and/or Ms Grover discriminated against Ms Tickle on the basis of her gender identity by imposing that condition, excluding her from using and assessing the Giggle App which was otherwise available to cisgender women and by not responding to her requests for access;

(d)    by the imposed condition, Ms Tickle was treated less favourably than cisgender women because she is a transgender woman — noting that this very pleading seems inherently not just a claim of indirect discrimination, but abandoning a claim of direct discrimination, and also noting that it has to be one or the other (or neither), but cannot be both at the same time as they are mutually exclusive: see Sklavos v Australasian College of Dermatologists (2017) 256 FCR 247 at [14]-[16] (Bromberg J, Griffiths and Bromwich JJ agreeing on this point) [(Sklavos)], and the authorities there cited;

(e)    imposing that condition constituted a breach of the prohibition of discrimination on the ground of gender identity in s 22 of the SDA, as the condition disadvantaged transgender women because they are not be (sic) able to gain ordinary access to the Giggle App and are vulnerable to disparaging conclusions and exclusion based on their appearance;

(f)    unlike transgender women, cisgender women would not have their access to the Giggle App restricted, or their claim to be a woman questioned on the basis of their physical appearance by Giggle and/or Ms Grover, and either or both of them would have engaged with cisgender women and responded to their queries regarding exclusion from the Giggle App — again, apparently not advancing a claim of direct discrimination.

216 The “condition” alleged to have been imposed had two elements: that users must be cisgender women and that they must have the appearance (through their selfies) of cisgender women. His Honour observed at J [47] that the first element was in substance akin to a direct discrimination claim (involving the existence and application of a policy of excluding transgender women) and that it also did not engage with how, according to the evidence, Ms Tickle had been excluded (the examination of her selfie only after she had been granted access). This, his Honour said at J [48], left the second element as the “true thrust” of Ms Tickle’s case on indirect discrimination.

217 Giggle and Ms Grover’s substantive case, summarised by the primary judge at J [49], was that Ms Tickle was removed from the Giggle App because she was an “adult human male”. Giggle and Ms Grover rejected any use of the word “woman” in relation to Ms Tickle and thus do not appear to have engaged with the detail of her case. They did, however, expressly deny that they had any knowledge of Ms Tickle’s gender identity at the time she was removed from the Giggle App.

218 The foundation of Giggle and Ms Grover’s case was a proposition that sex is fixed at birth. It followed from this that Ms Tickle was a man and that therefore, to the extent she was discriminated against, it was a case of sex discrimination under s 5 and not gender identity discrimination under s 5B. Ms Tickle, on the other hand, eschewed reliance on s 5 and relied only on s 5B on the basis that she was a woman (see J [52]-[54]).

219 Giggle and Ms Grover also submitted that the Giggle App was a “special measure” for the purpose of achieving substantive equality between men and women, within the meaning of s 7D(1)(a) of the SDA (see J [85]). This clearly aligned with their theory of the case (that Ms Tickle was a man). However, as will appear below, it faced significant difficulties to the extent that it was put as an answer to discrimination on the ground of gender identity.

The evidence and the facts found by the primary judge

220 His Honour observed at J [50] that the facts were disputed only at the periphery. Nevertheless, his Honour summarised the evidence with great care at J [87]-[148]. It is not necessary for us to repeat this exercise. We set out here the findings that we consider necessary, for the purposes of the appeal, to fill out the brief summary of events at the beginning of these reasons.

The Giggle App

221 Ms Grover gave evidence about deciding to use the AI software (which was referred to as Kairos) as a way of making an app exclusively for women possible. She said that, at this time, she had “no idea that males could be considered to be women” (at J [91]). His Honour observed that this evidence was open to challenge on the basis that it appeared inconsistent with a blog post written by Ms Grover in 2020, but that it was not challenged (at J [92]). We therefore understand his Honour to have accepted that this was Ms Grover’s understanding in 2020 and 2021.

222 The Giggle App’s terms of use included a statement that an account creator must be over 16 years of age and “must be female” (at J [99]). His Honour observed that Giggle and Ms Grover appeared to have adopted early on “an explicit policy of excluding transgender women from access to the Giggle App” (at J [100]). However, Ms Grover had not been cross-examined as to whether this was in fact a policy and whether it had been implemented. The Court was left to speculate on this.

223 A selfie uploaded by a person seeking to register on the Giggle App would be reviewed by Kairos, which was designed and used to determine whether the person in the uploaded selfie appeared to be female or male. It purported to detect the gender of each face with 94 percent accuracy. Ms Grover selected this accuracy level so that the system in order to minimise the chance of women being denied access because of poor quality photographs (at J [101]).

224 If Kairos determined that the person seeking to register appeared female, it would grant access to the Giggle App. If the person was rejected, they would see a pop-up alert saying “oops you have not been verified please try again” and would not gain access to the App (although they could try again with a different selfie). Giggle did not receive a notification when a potential user was rejected. However, if a potential user was rejected by Kairos (and, presumably, if they took this up with Giggle by email), it was possible for staff at Giggle to gain access to their profile (at J [102]).

225 In addition to the screening by Kairos, Ms Grover and others at Giggle reviewed the selfies uploaded by people who had been granted access. This was to ensure that men had not “bypassed” the AI screening. If one of these reviews identified a man (which we take to mean a photograph that showed somebody who in the reviewer’s opinion was a man), he would be blocked from using the Giggle App. His Honour considered it more probable than not that, as a practical matter, most of the time it was Ms Grover who performed these reviews (at J [103]).

226 When a user was blocked, they could not use the in-app messaging function (at J [105]) but would “often” email Giggle. Ms Grover could use their telephone number to find their profile and look at their selfie. Her evidence (which, we understand from J [104], was not challenged) was that in these cases Ms Grover would restore the user’s access if they looked female and reject them if they looked male (or ask them to submit another photograph if it seemed ambiguous).

227 The Giggle App was taken offline in August 2022. The reasons why this happened are not relevant to the appeal but involved (according to Ms Grover) an inundation of male users who left one star reviews (at J [106]). Ms Grover also gave (unchallenged) evidence that the Giggle App would not be reopened until Giggle could be certain that it was lawful for it to exclude all “males” (including, evidently, Ms Tickle) (at J [107]).

The removal of Ms Tickle

228 As noted earlier, Ms Tickle downloaded the Giggle App in February 2021 and completed the in-app registration progress (at J [110]-[111]). There was no direct evidence of any review of Ms Tickle’s selfie by a human at this stage and his Honour did not accept that it was more likely than not that such a review occurred (at J [112]). Ms Tickle periodically opened the App in the months following her registration, but found that there were not many users to connect with and lost interest (at J [113]). Ms Grover’s subsequent review of Ms Tickle’s profile (at the time of the AHRC complaint) found that she had made no posts and had no interactions or connections with other users (at J [114]). Sometime between July and September 2021, Ms Tickle noticed that her access had been restricted: she was not able to post content, make comments or read other users’ comments (at J [115]).

229 How the Giggle App blocking mechanism actually worked was not explored in the evidence, but his Honour was prepared to infer that Ms Tickle’s limited access was a consequence of a decision to block her (at J [116]). Ms Grover gave evidence that she did not remember blocking Ms Tickle (at J [117], [125]-[126]). There was therefore uncertainty as to when this had occurred and by exactly what process. However, Ms Grover agreed that Ms Tickle “would have been removed” from the App when she reviewed her photograph and described this as “the same as removing all males” (at J [125]-[126]).

230 The primary judge understood this to mean that Ms Grover believed she would have removed Ms Tickle “with the intention of effecting the Giggle App’s rule that it be female only” (at J [126]). His Honour therefore accepted that “the likely reason for [Ms Tickle’s] removal from the Giggle App based upon her application selfie was not for the reason that Ms Tickle is a transgender woman, but rather because Ms Grover perceived the selfie to be a photograph of a male and would have removed Ms Tickle for that reason” (at J [126]). The apparent inconsistency between the evidence about the process of review of new users’ selfies and the fact that Ms Tickle was able to use the Giggle App for some months was explicable on the basis that Kairos granted access to Ms Tickle in February 2021, but a large number of people were seeking to join and Ms Grover did not get around to reviewing Ms Tickle’s selfie until much later in the year (at J [127]).

The decision not to re-admit Ms Tickle

231 Upon finding her access restricted, Ms Tickle tried to contact Giggle through the in-app contact form. The primary judge was not prepared to find that these messages had been received, noting the evidence that the in-app contact form did not work for users who had been blocked (at J [118]). Then, on 4 October 2021, Ms Tickle sent an email to Ms Grover’s address and to the address from which she had earlier received a welcome email from Giggle (at J [119]). Her email attached a message she had tried to send through the in-app contact form and asked Ms Grover to refer it to “the appropriate person”. She received a response from Ms Grover to the effect that, if she sent her mobile phone number, Ms Grover would “personally look into it right now”. The primary judge accepted that there was an occasion Ms Grover attempted to call Ms Tickle, but the call was not answered. Having missed the call, Ms Tickle sent a text to Ms Grover, apologising and enquired about a suitable time to return the call (J [119]). There was a series of further attempts by Ms Tickle to contact Ms Grover by email, texts and phone calls which does not need to be recounted here.

232 Ms Grover recalled using the telephone number Ms Tickle had provided to look up her profile and view her onboarding selfie. She then told her father that “a man … had called her” (at J [121]), which we take to mean that at that time (October 2021) Ms Grover thought Ms Tickle’s selfie was a photograph of a man. (Indeed, a paragraph of Ms Grover’s affidavit to which the primary judge did not refer makes this point even more clearly: she said “I looked [at] the onboarding picture and saw a male person”.) She blocked Ms Tickle’s telephone number and did not contact Ms Tickle again or respond to her other messages. While his Honour’s findings do not expressly identify a decision to refuse to re-admit Ms Tickle to the Giggle App, it is implicit in this evidence (which we do not understand to have been challenged or doubted) that Ms Grover viewed Ms Tickle’s photograph with the intention of determining whether her access should be restored and decided that it should not.

233 At J [126] the primary judge recorded Ms Grover as having given evidence that she did not look again at Ms Tickle’s selfie when contacted by her after her removal from the Giggle App (and observed that there was no reason to doubt that evidence). However, this is inconsistent with the evidence recorded at J [121] (mentioned in the previous paragraph), which is before the Court in the appeal and to which we have had regard. It appears to be a minor slip on his Honour’s part, upon which nothing turns.

Summary

234 The primary judge summarised his findings concerning the exclusion of Ms Tickle as follows (at J [128]).

(a)    Ms Tickle’s inability to access certain features on the Giggle App was a consequence of her being blocked from that App;

(b)    that block occurred when Ms Grover made a decision to remove Ms Tickle from the App after reviewing her onboarding selfie and concluding that she was male;

(c)    that review and block occurred at some point before 4 October 2021, most likely in September 2021;

(d)    Ms Tickle subsequently contacted Ms Grover about being denied access and provided her mobile phone number to Ms Grover; and

(e)    Ms Grover also provided her mobile phone number to Ms Tickle by way of the signature block in her reply email to Ms Tickle.

The primary judge’s conclusions on the issues in dispute

Gender identity discrimination

235 The primary judge rejected at the outset the conceptual underpinning of Giggle and Ms Grover’s case (that Ms Tickle, having been designated male at birth, was a man and not a woman and any discrimination against her was therefore based on “sex”). In this connection his Honour expressly accepted a series of propositions advanced by the Sex Discrimination Commissioner (the Commissioner), intervening, concerning the concept of sex for the purposes of the SDA (at J [55]-[61]). These included, relevantly, that sex is not immutable. Proceeding from these propositions, his Honour also accepted a submission by the Commissioner that it was unnecessary to determine the metes and bounds of the meaning of sex because the fact that Ms Tickle was recorded as female on her updated birth certificate was sufficient for her to be, at law, “of the female sex” (at J [63]). This was the effect of s 24(4) of the Qld BDM Act (which, his Honour noted at J [62], was mirrored in like legislation in other States and Territories). The starting point for his Honour’s analysis was therefore that Ms Tickle was a woman who was alleged to have been treated differently to other women (on the direct discrimination case) or subjected to a condition that caused her to be disadvantaged in comparison with other women (on the indirect discrimination case). This, in substance, was also how Ms Tickle framed the case.

236 The primary judge said at J [129] that, in the light of the findings set out above, he was unable to accept that any direct discrimination occurred (noting that it was not the main thrust of Ms Tickle’s case). His Honour said:

The evidence did not establish that Ms Tickle was excluded from the Giggle App by reason of her gender identity, although it remains possible that this was the real but unproven reason. Rather, the evidence goes no further than establishing that her exclusion was likely to have been a byproduct of excluding those who were perceived as being men, by the use of visual criteria that failed to distinguish between cisgender men and transgender women.

237 As his Honour observed at J [130]-[131], there was a lack of evidence about the actual decision to exclude Ms Tickle, although Ms Grover seemed to embrace the fact that Giggle had a policy of excluding all people who were designated male at birth. His Honour said at J [131]:

I am left to conclude that it is most likely she did not know that Ms Tickle was a transgender woman when she reviewed her selfie, and instead excluded her on the quick or reflexive decision that she appeared to Ms Grover to be a male … For Ms Grover, there is no legitimate distinction between transgender women and cisgender men. Denial in (sic) the legitimacy of that distinction would be no answer to a case of direct discrimination, if awareness of Ms Tickle’s gender identity had been established. Nonetheless, the direct discrimination case must fail on the more basic evidential basis that it has not been established that Ms Grover was aware of Ms Tickle’s gender identity at the time she blocked her from the Giggle App. The exclusion, therefore, was not proven to be by reason of Ms Tickle’s gender identity.

(Emphasis added.)

238 The italicised section of this extract reflected a conclusion the primary judge had earlier reached concerning the construction of s 5B(1). Having referred to some of the case law on the meaning of the expression “by reason of” (which appears in s 5B(1) as well as the equivalent provisions in ss 5, 5A, 5C, 6 and 7AA), his Honour said at J [78]:

It is implicit in s 5B(1) that the discriminator actually be aware of a person’s gender identity, or the characteristic that generally appertains or is imputed to persons of the same gender identity.

239 The same problem faced Ms Tickle’s claim that the decision not to re-admit her to the Giggle App involved direct discrimination. His Honour also noted that there was a lack of evidence of any actual decision not to re-admit or the reasons for such a decision (at J [132]).

240 His Honour considered the position in relation to indirect discrimination to be “the polar opposite”. He said at J [134]:

Ignorance of Ms Tickle’s gender identity is no defence to the indirect discrimination claim; indeed, it is a significant part of the reason why her case succeeds. The imposed condition of needing to appear to be a cisgendered female in photos submitted to the Giggle App had the effect of disadvantaging transgender women who did not meet that condition, and in particular Ms Tickle.

241 This finding, however, did not extend to the refusal to re-admit Ms Tickle, because of the paucity of evidence as to any such decision (at J [134]).

242 His Honour then noted that, ordinarily, a finding as to indirect discrimination requires a “careful comparator exercise” in order to establish how and why a condition, requirement or practice has or is likely to have the effect of disadvantaging the person discriminated against or other persons having the same gender identity (here, that of a transgender woman). However, in the present case, that point was “straightforward”. His Honour explained this as follows at J [135]-[136].

That is because, in substance, as opposed to any pleading or argumentative form to the contrary, the existence of the condition and its effect is not disputed or otherwise in issue. It is not denied or otherwise in doubt that the basis for the exclusion of Ms Tickle was that she was perceived to have a male appearance, that is, she was perceived to have been male at birth. Indeed, this was the very essence of the respondents’ case.

Nor do the respondents deny in this proceeding that the effect of this condition was that it would not just exclude men who were male sex at birth, but also transgender women too, including transgender women who are legally regarded as female. Indeed, it was not direct discrimination only because, on the evidence before me, it was not established that the respondents were aware that Ms Tickle was a woman, so that her gender identity was not established to be any part of the reason for her exclusion. The respondents not only did not deny this as a possible or likely outcome of the condition, but embraced it as being a legitimate and desirable thing to happen. They saw, and continue to see, nothing wrong in not drawing or attempting to draw this distinction.

Special measure under s 7D

243 As noted earlier, Giggle and Ms Grover argued that the Giggle App constituted a “special measure” within the meaning of s 7D of the SDA, on the footing that it existed for the purpose of achieving substantive equality between men and women (s 7D(1)(a)). Relying on s 7D(2), this was said to stand in the way of a conclusion that the exclusion of Ms Tickle constituted discrimination under s 5B. His Honour regarded this contention as “plainly untenable” for reasons of statutory construction (at J [86]). In essence, his Honour held that s 7D(1) and (2) needed to be read together so that a special measure directed at one of the forms of “substantive equality” referred to in subsection (1) is exempt from being found to constitute discrimination under the corresponding provision in ss 5 to 7A but not from being found to constitute discrimination under other provisions.

Constitutional issues and damages

244 At J [149]-[196] the primary judge considered the arguments concerning the validity of relevant provisions of the SDA.

245 His Honour held that these provisions were supported by s 51(xxix) of the Constitution (the external affairs power) and the challenge to validity therefore failed (at J [188]). His Honour also held that, in their application to Giggle, the provisions were supported by s 51(xx) (the corporations power) (at J [196]).

246 His Honour also considered and rejected a contention that s 24 of the Qld BDM Act was rendered invalid by s 109 of the Constitution by reason of inconsistency with provisions of the SDA (at J [197]-[204]).

247 These aspects of his Honour’s reasons do not need to be discussed in any detail here. His Honour’s approach to the assessment of damages will be discussed, to the extent necessary, in the course of our reasoning on that issue.

The issues in the appeal

The appeal

248 The notice of appeal filed on 2 October 2024 raised six grounds. Three of these (which related to the primary judge’s rejection of an affidavit and his Honour’s conclusions on the constitutional issues), along with an aspect of ground 1 (which raised an issue concerning the pleadings) were ultimately not pressed.

249 At the hearing of the appeal, Giggle and Ms Grover sought to rely on an amended notice of appeal which deleted the abandoned grounds and introduced a new ground. Leave to introduce the new ground was refused. We gratefully adopt Perry J’s explanation of the reasons for that refusal (at [21]-[23]).

250 The grounds of appeal, therefore, are as follows.

(a)    Ground 1 alleges error in making a declaration to the effect that Giggle and Ms Grover had engaged in unlawful indirect discrimination on the ground of gender identity, on the basis that:

(i)    the impugned conduct did not as a matter of law constitute discrimination on the ground of gender identity within the meaning of s 5B(2); and

(ii)    the “imposed condition” on which the declaration was based was not proved.

(b)    Ground 2 alleges error by the primary judge in accepting propositions about the meaning of “sex” for the purposes of the SDA (including that sex is not defined to being a biological or binary concept and that sex is “changeable”) and by taking into account the operation of s 24 of the Qld BDM Act and cognate provisions in other State and Territory legislation in construing the meaning of “sex”.

(c)    Ground 3 alleges that the primary judge erred by failing to find that:

(i)    the Giggle App was a “special measure” within s 7D; or

(ii)    the “imposed condition” was “reasonable” for the purposes of s 7B of the SDA.

251 As explained in the reasons of Perry J at [34], the second limb of ground 3 seeks to raise a point that was not pleaded below and only fleetingly referred to in closing submissions. For the reasons set out by her Honour, we would refuse leave to raise this issue in the appeal.

The cross-appeal

252 Ms Tickle filed a notice of cross-appeal on 19 February 2025. The cross-appeal seeks that the declaration made by the primary judge be set aside and replaced by a declaration that Giggle and Ms Grover directly discriminated against Ms Tickle on the ground of her gender identity. It also seeks that the damages award be increased to at least $30,000 in general damages and at least $10,000 in aggravated damages.

253 Grounds 1 to 3 support the making of a different declaration.

(a)    Ground 1 alleges that findings made by the primary judge incontrovertibly supported a conclusion that Giggle and Ms Grover were actuated to exclude Ms Tickle on the ground of her appearance, with or without regard to her designated sex at birth.

(b)    Ground 2 alleges that his Honour erred in finding that Ms Tickle had conflated her claims of direct and indirect discrimination and essentially abandoned the direct discrimination case.

(c)    Ground 3 alleges that the primary judge erred in failing to conclude that Giggle and Ms Grover engaged in either direct or indirect discrimination against Ms Tickle on the ground of her gender identity by not re-admitting her to the Giggle App (it should possibly therefore be understood as a de facto notice of contention in so far as it supports a finding of indirect discrimination).

254 Ground 4 supports the proposed increase of the damages award. It alleges error by reason of:

(a)    the asserted errors as to the characterisation of the discrimination as indirect rather than direct;

(b)    alleged inadequate weighting of the evidence in support of each of the heads of general and specific damages; and

(c)    otherwise, manifest inadequacy in the circumstances.

Interventions

255 The Commissioner was granted leave to appear as amicus curiae in the appeal. The Lesbian Action Group and Equality Australia Ltd were granted leave to intervene in the appeal. Each made submissions on the construction of relevant provisions of the SDA. The reasons why the Court granted these applications, and refused applications by two other entities, are set out in the reasons of Perry J at [174]-[188].

Direct discrimination

256 It is apparent from the evidence summarised above that Ms Grover saw Ms Tickle as a man and was motivated to exclude her from the Giggle App for that reason. The primary judge concluded that Ms Grover had a genuine belief that Ms Tickle was a man, not a woman (at J [30]), and this was not challenged in the appeal.

257 The case might possibly therefore be understood as one of direct discrimination on the ground of sex under s 5(1): the exclusion of Ms Tickle from the Giggle App was motivated by the consideration that she was perceived by the person making the decision (whether correctly or not) to be a man. However, that would involve a novel argument that the “sex of the aggrieved person” referred to in s 5(1)(a) can include a sex imputed to that person by the discriminator even if the imputation might be wrong; and it could only succeed by overcoming the argument that the Giggle App constitutes a “special measure” for achieving substantive equality between women and men within s 7D(1)(a). In any event, Ms Tickle did not advance any such case. She relied only on s 5B and therefore on the concept of discrimination on the ground of gender identity.

258 Section 5 can therefore be put to one side. The suggestion of Giggle and Ms Grover that Ms Tickle’s case was really one of sex discrimination (because, on their case, she was a man) does not assist (although a similar point does need to be grappled with, as explained below). To show that one ground of prohibited discrimination was established (subject to the operation of s 7D) would not prevent discrimination on another ground being discerned in the same conduct.

Ms Tickle’s case

259 Putting aside the infelicity of ASOC [35] (which somewhat confusingly introduced the concept of a “condition” into a claim under s 5B(1), and did not expressly acknowledge that direct and indirect discrimination were true alternatives), it is reasonably clear that Ms Tickle was advancing a claim of direct discrimination. That claim was not abandoned.

260 The primary judge’s understanding that the “substance” of her case “only really relied on indirect discrimination” (at J [43]) seems to have arisen from the prominence of the asserted “imposed condition” in Ms Tickle’s pleadings and the centrality of decisions apparently made solely on the basis of her appearance. We do not understand the primary judge to have been suggesting that the direct discrimination claim had been abandoned and did not need to be addressed (noting that his Honour did address it). If that view was taken, it was incorrect and ground 2 of the cross-appeal should be upheld.

261 The “imposed condition” as formulated in ASOC [34] had two limbs, expressed as alternatives, one of which was that a user must “be a cisgendered female”. Whether that requirement was enforced so as to exclude Ms Tickle, and whether that enforcement amounted to discrimination against her “by reason of” her gender identity, are important questions in this part of the case. But equally, having (or not having) a particular appearance (the second limb) can be an aspect of a person’s “gender identity” (relevant to s 5B(1)) and not merely a “condition” whose imposition causes disadvantage for the purposes of s 5B(2).

The test in s 5B(1) and the evidence here

262 The concept of “gender identity” is defined in s 4 in terms of the “identity, appearance of mannerisms or other gender-related characteristics of a person”: it is clearly not limited to how a person “identifies” (in the sense of self-perception), but extends to how the person looks or behaves. Additionally, gender identity discrimination under s 5B(1) is defined to include discrimination by reason of a “characteristic that appertains generally” to persons with a particular identity or is “generally imputed” to persons who have that identity.

263 Ms Tickle’s pleaded case included allegations that her “gender-identity” was female (at ASOC [10]) and she had a “perceived gender identity as a transgender person” (at ASOC [11]). However, the core allegation (at ASOC [37]) was that she was “treated less favourably than cisgender women because [she] is a transgender woman”. Taking “transgender woman” to be the relevant “gender identity”, we understand that designation to refer in Ms Tickle’s case to an adult person who was designated male at birth and has undergone a process of transition (including medical intervention) and has a gender identity that is female. The aspects of s 5B(1) referred to in the previous paragraph mean that gender identity discrimination occurred if Ms Tickle was excluded from the Giggle App “by reason of” having “characteristics” (including as to “appearance or mannerisms”) that generally appertain to or are imputed to transgender women. Importantly, Ms Tickle’s pleaded case below was not limited to s 5B(1)(a).

264 Ms Grover, as the primary judge observed at J [130], “embraced the fact that Giggle had a policy of excluding all people who were male sex at birth at the time Ms Tickle was removed” and this included transgender women. At the same time, his Honour found that it had not been established that Ms Grover knew Ms Tickle specifically was a transgender woman (at J [131]). However, it is apparent that Ms Grover made her decisions in relation to Ms Tickle solely on the basis of viewing the latter’s onboarding selfie and her conviction that that photograph showed a male person (at J [131]). Ms Tickle’s selfie was in evidence and we were taken to it in the course of argument in the appeal. Although the photograph presents Ms Tickle as a woman (eg hair, clothing), there are features of her appearance that may be considered discordant with that presentation. Ms Tickle’s appearance, it may safely be concluded, was the reason why Ms Grover concluded that she was not entitled to remain as a user of the Giggle App; and that appearance had elements (“characteristics”) that generally appertain to, or at least are imputed to, transgender women – namely, for want of a better expression, male facial features.

265 For this reason, we do not consider (as the primary judge did: at J [131], [136]) that the failure to prove that Ms Grover knew Ms Tickle was a transgender woman (or “was aware of Ms Tickle’s gender identity”) was fatal to the direct discrimination claim. The jurisprudence concerning the meaning of “by reason of” in the definitional provisions of the SDA, and cognate expressions in other anti-discrimination legislation, is subtle: the cases point to the need for a causal connection (eg Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 at 322-326 (Lockhart J, Black CJ agreeing at 307), 334 (Lee J); Waters v Public Transport Corporation (1991) 173 CLR 349 at 359-360 (Mason CJ and Gaudron J, Deane J agreeing at 382)) and for identification of the “real reason” for the discriminator’s conduct (eg Purvis v New South Wales [2003] HCA 62; 217 CLR 92 at [166] (McHugh and Kirby JJ), see also at [13] (Gleeson CJ), [236] (Gummow, Hayne and Heydon JJ)), leaving the role of intention and motive somewhat undefined. The cases are not, in our view, inconsistent with a finding of direct discrimination under one or other of ss 5-7AA of the SDA being made in circumstances where the fact that the aggrieved person has the relevant protected attribute has not crystallised in the mind of the discriminator – particularly a protected attribute as multifarious and cryptic as gender identity. It is not necessary to take that point any further, however, because it is clear that Ms Grover was subjectively motivated by Ms Tickle having characteristics appertaining to, or imputed to, transgender women in the sense referred to above.

The comparator

266 A necessary feature of discrimination under s 5B(1), however, is that the aggrieved person has been treated less favourably than the discriminator would, in the same circumstances, treat “a person who has a different gender identity”. There must be a comparator, real or hypothetical. Further, gender identity discrimination can only be identified if other differences between the aggrieved person and the comparator do not exist or can be excluded from the analysis so as to show gender identity as the point of difference which led (or would lead) to the different treatment.

267 The comparator referred to in Ms Tickle’s pleading is “a cisgender female”. It can be accepted that persons within that description correspond to those whom Ms Grover regarded as “women” and who (if they submitted a selfie that was sufficiently clear) were accepted as users of the Giggle App. The differential treatment of Ms Tickle in comparison to “a cisgender female” can only be attributed to her “gender identity” (rather than to some other, non-pleaded characteristic) if she too was a “female” at the time of that treatment.

268 It is for this reason that it is necessary to confront the argument, put at the forefront of Giggle and Ms Grover’s submissions below, that Ms Tickle “is not a woman” and “is a man”. If that argument is correct, it is difficult if not impossible to conclude that Ms Tickle was treated less favourably than a cisgender female because of her gender identity. That is because the differential treatment can just as readily be attributed to Ms Tickle’s sex.

269 Ground 2 of the notice of appeal takes issue with the primary judge’s findings as to whether Ms Tickle should be regarded as a woman, but does so in a somewhat elliptical way: for example, it does not directly allege that his Honour’s conclusion on the issue was wrong but takes issue with aspects of his reasoning. Additionally, while it was not abandoned, ground 2 was only pressed in a very limited (indeed somewhat nebulous) fashion. It was not separately developed in Giggle and Ms Grover’s written submissions; and senior counsel seemed to indicate in oral submissions that the primary relevance of the points raised in ground 2 was to Giggle and Ms Grover’s argument concerning s 7D and they might not need to be decided. The Court therefore did not have the benefit of detailed argument on the question whether, for the purpose of identifying discrimination under s 5B(1), Ms Tickle’s description of herself as a “transgender woman” was correct. Nevertheless the point is not conceded.

270 The answer to the question whether Ms Tickle was “female” or a “woman” at the time of her exclusion from the Giggle App depends to some extent on why the question is being asked. Here, the question is not asked for a scientific, ideological, political or religious purpose. It is asked for the purpose of resolving a dispute as to the application of s 5B(1). For that reason, although the SDA does not define “sex” and no longer contains a definition of “man” or “woman”, it is necessary to pay attention to how the SDA deals with concepts of sex and gender.

271 In this connection, we note that the primary judge appears to have regarded Ms Tickle’s recognition as female on her updated birth certificate as sufficient to require the conclusion that she was of the female sex (at J [62]). If that is the effect of his Honour’s reasoning, we respectfully disagree. Section 109 of the Constitution dictates that the SDA prevails over any status afforded by the law of a State to the extent of any inconsistency between them. To put it another way, in the absence of any express recognition or adoption in the SDA of status or entitlement conferred by State law, such a status or entitlement cannot directly control the operation of the SDA.

272 However, a consistent pattern of State and Territory laws on a topic may well be relevant to ascertaining the contemporary meaning of a term used in (or relevant to the operation of) a Commonwealth Act. In this regard, changes in the ordinary meaning of a word resulting from changing social conditions or attitudes may be relevant to the application of a statute even if those changes occur after the statute’s enactment (see eg Attorney-General (Cth) v Kevin and Jennifer [2003] FamCA 94; 172 FLR 300, where the expression “man” was given its ordinary contemporary meaning (as at 1999) in construing and applying the Marriage Act 1961 (Cth)). Accordingly, to the extent that the resolution of issues under the SDA depends on an understanding of whether a person is female or male, it is not irrelevant that each of the States and self-governing Territories has made provision for a person’s registered sex to change and for the person to be regarded, for the purposes of the law of that State or Territory, as being of the sex shown in their most recent updated birth certificate (see Births, Deaths and Marriages Registration Act 1995 (NSW) s 32I; Births, Deaths and Marriages Registration Act 2023 (Qld) s 58(1); Births, Deaths and Marriages Act 1996 (SA) s 29U; Births, Deaths and Marriages Registration Act 1999 (Tas) 28D(1); Births, Deaths and Marriages Registration Act 1996 (Vic) s 30G(3); Births, Deaths and Marriages Registration Act 1988 (WA) s 36S; Births, Deaths and Marriages Registration Act 1997 (ACT) s 29D(1); and Births, Deaths and Marriages Registration Act 1996 (NT) s 28H).

273 As noted above, the 2013 Amending Act removed the definitions of “man” and “woman”, introduced a concept of “intersex status”, and replaced references to “the opposite sex” with references to “a different sex”. The Explanatory Memorandum to the Bill for the 2013 Amending Act said in relation to the repeal of the definitions of “man” and “woman”:

These definitions are repealed in order to ensure that “man” and “woman” 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.

274 In explaining the new definition of “gender identity”, the Explanatory Memorandum said:

11.    This definition provides maximum protection for gender diverse people. It includes the way a person expresses or presents their gender and recognises that a person may not identify as either male or female. This acknowledges that it is often the discord between a person’s gender presentation and their identity which is the cause of the discrimination.

12.    The definition varies in a minor way from the definition in [the Anti-Discrimination Amendment Bill 2012 (Tas)]. It uses ‘a person’ rather than ‘an individual’ for consistency with the rest of the SDA, and removes the explicit reference to transsexualism and transgenderism. The definition is still intended to apply to transsexual and transgender persons, but the definition does not use these descriptions to ensure the definition is not unnecessarily limited in its application. This is also consistent with the approach taken in the definition of sexual orientation.

13.    ‘Gender’ is used in this definition rather than ‘sex’ as it is a different concept, understood to be part of a person’s social identity (rather than biological characteristics). Gender refers to the way a person presents and is recognised within the community. A person’s gender might include outward social markers, including their name, outward appearance, mannerisms and dress. It also recognises that a person’s sex and gender may not necessarily be the same. Some people may identify as a different gender to their birth sex and some people may identify as neither male nor female.

275 These passages serve to confirm that, to the extent that the SDA had previously embodied a concept of sex as involving binary categories fixed at birth, part of the intention of the 2013 amendments was to ensure that the Act would no longer embody or give effect to such a concept. There were express amendments recognising that sex might not be binary; the introduction of the concept of gender identity which, it was recognised, might in individual cases not align with a person’s designated sex at birth or their “gender presentation”; and references in the extrinsic materials to an intention for these amendments to assist in the protection of “transsexual and transgender persons”.

276 As the primary judge observed at J [58]-[59], referring to Commissioner of Stamps (South Australia) v Telegraph Investment Co Pty Limited (1995) 184 CLR 453 at 463 (Brennan CJ, Dawson and Toohey JJ), 479 (McHugh and Gummow JJ), existing references in the SDA to a person’s sex (eg in s 5) and to men and women (eg in s 7D) must be read together with the provisions inserted by the 2013 Amending Act and consistently with Parliament’s decision to delete definitions of some terms. Therefore, to the extent that the term “woman” appears in the SDA or the concept of womanhood is important to its operation, it is not to be understood by reference to any narrow or rigid conception of femaleness.

277 It may be that, in expressly declining to define concepts such as “man”, “woman”, “sex” and “gender”, the SDA contemplates these terms being given their ordinary meaning or at least gives the ordinary meaning some role to play. However, if the ordinary meanings of these terms were inconsistent with the understanding that emerges from the 2013 Amending Act (discussed above), the ordinary meaning would be displaced to that extent. In any event, as we have also noted above, the Full Court accepted as long ago as 1993, in SRA, that as a matter of common usage a person’s sex was not fixed by their sex at birth. On that basis, the Court in SRA held that a “male-to-female transsexual” who had undergone “sex re-assignment surgery” would come within the concept of “female married person” and therefore be entitled to a wife’s pension under the Social Security Act 1947 (Cth). The Secretary’s appeal in SRA was allowed because the respondent in that case had not undergone such surgery and was still, anatomically speaking, male.

278 Black CJ (with whom Heerey J agreed), having referred to dictionary definitions and the writings of medical and legal experts, said at 305:

This usage reflects, in my view, not only the significant incidence of sex reassignment surgery but a growing awareness in the community of the position of transsexuals and, most importantly, a perception that a male-to-female transsexual who has had a “sex change operation” or a “sex change” may appropriately be described in ordinary English as female. That is to say, the person may properly be described by the word appropriate to the person’s psychological sex and to external genital features which are now in conformity with the person’s psychological sex. This is particularly the case where, as here, a choice has to be made between two categories, neither of which is qualified - a choice between describing a person as, simply, either male or female.

Accordingly, I consider that whilst a pre-operative male-to-female transsexual cannot come within the category of eligibility for a wife’s pension under the Act, the respondent in this case would have come within that category had she successfully undergone the surgery that has been recommended for her.

279 Lockhart J (with whom Heerey J also agreed) said at 325:

Sex is not merely a matter of chromosomes, although chromosomes are a very relevant consideration. Sex is also partly a psychological question (a question of self perception) and partly a social question (how society perceives the individual).

The words “woman” and “female” are substantially synonymous. A woman is an adult female human being. In my opinion a woman or a female, as those terms are generally understood in Australia today, includes a person who, following surgery, has harmonised psychological and anatomical sex. A male-to-female transsexual, following reassignment surgery, is a woman and a female. A female-to-male transsexual, following such surgery, is a man and a male.

280 Ms Tickle, on this understanding, qualifies as a “woman” and “female”.

281 The meaning of an ordinary English expression is a question of fact (see eg Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2; 270 CLR 494 at [41] (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ)), and a conclusion on such a question is not something to which principles of stare decisis apply (see eg Herzfeld P and Prince T, Interpretation (3rd ed, Lawbook Co, 2024) at [33.70]). Single judges are therefore not “bound” by the observations in SRA set out above (which are, in any event, strictly obiter). However, previous decisions on the meaning of a word or phrase can, and often do, usefully guide a court in ascertaining its meaning (as in, eg, Equality Australia Ltd v Commissioner of the Australian Charities and Not-for-profits Commission [2024] FCAFC 115; 305 FCR 189 (Wheelahan, Hespe and Kennett JJ)). Senior counsel for Giggle and Ms Grover emphasised that the observations in SRA were factual findings and submitted that they were wrong. Because we are dealing with factual findings rather than propositions of law, it was not necessary for him to go so far as to submit that they were “clearly” or “plainly” wrong.

282 The argument that the members of the Court in SRA were wrong about the ordinary meaning of expressions such as “female” and “woman” did not really advance beyond assertion. That is perhaps not surprising, since the meaning of ordinary English expressions is generally not a matter to be proved by evidence (see Primary Health Care Ltd v Commonwealth [2017] FCAFC 174; 260 FCR 359 at [319]-[320] (Rangiah J) and the cases there cited). However, where an intermediate appellate court (especially an earlier Full Court of this Court) has expressed a view about the ordinary meaning of a word or phrase, the desirability of consistency and predictability in judicial decision-making suggests that a different view of the meaning of that word or phrase should not be adopted in the absence of a fairly strong reason to consider that the earlier court was wrong or that the meaning of the expression has changed. No real attempt was made to persuade us that the members of the Court in SRA had misread contemporary usages of “woman” and “female” in 1993, let alone that common usage since then had moved back towards more traditional understandings. Our own understanding is that, while there are clearly people who strongly believe that these terms should not be applied to any person who was not born female and object to such usage, acceptance that transgender people are properly referred to by descriptors applicable to members of the sex to which they have “transitioned” is, if anything, more widespread and more entrenched than it was when SRA was decided. That view is supported by the treatment of transgender people under State and Territory legislation referred to at [272] above. Indeed, it could be argued that ordinary usage in Australia now goes further and (contrary to the result in SRA) accepts a man who has adopted a female social presentation but not had gender affirming surgery as a “woman”. It is not necessary to decide that issue in the present case.

283 For these reasons, the evidence established that Ms Tickle was a woman within the ordinary meaning of that expression. The SDA did not call for any different conclusion. Her description of herself at ASOC [37] as a “transgender woman” was therefore correct; and the appropriate comparator, for the purposes of s 5B(1), was a woman with a different gender identity (eg, as she put it at ASOC [37], a “cisgender woman”).

Conclusion on direct discrimination

284 The evidence also established that Ms Tickle was excluded from the Giggle App (and not re-admitted when she took the matter up with Ms Grover) because of characteristics – what we have referred to above as male facial features – which appertain to or are imputed to transgender women but not cisgender women. She was treated less favourably than a cisgender woman would have been in the same circumstances “by reason of” those characteristics. Giggle and Ms Grover therefore discriminated against her on the ground of her gender identity within the meaning of s 5B(1).

285 Ground 1 of Ms Tickle’s cross-appeal should therefore be upheld. So too should ground 3, to the extent that it identifies the refusal to re-admit Ms Tickle as an additional instance of direct discrimination.

Indirect discrimination

286 The primary judge proceeded on the basis that direct discrimination under s 5B(1) and indirect discrimination under s 5B(2) were mutually exclusive: “it has to be one or the other (or neither), but cannot be both at the same time” (at J [46(d)]). His Honour cited Sklavos at J [14]-[16] (Bromberg J, Griffiths and Bromwich JJ agreeing) for this proposition. Sklavos was a decision under the Disability Discrimination Act 1992 (Cth), but the relevant passage has been cited for the same proposition in connection with the SDA (Leach v Burston [2022] FCA 87 at [198] (Halley J)) and treated by a leading text as establishing the proposition for anti-discrimination statutes generally (Ronalds C and Byrnes B, Discrimination Law and Practice (6th ed, Federation Press, 2024) at 30-31). This understanding was not challenged in the appeal and should be regarded as correct.

287 The conclusion that we have reached above concerning direct discrimination therefore entails that the declaration made by the primary judge to the effect that Giggle and Ms Grover contravened s 22 by way of indirect discrimination must be set aside. It is unnecessary to consider ground 1 of the appeal, or ground 3 in so far as it addresses reasonableness for the purposes of s 7B.

288 We would add that, unlike the primary judge, we see all of the evidence in this case as pointing away from indirect discrimination and towards direct discrimination. The “imposed condition” pleaded by Ms Tickle, as noted above, had as one of its limbs a requirement that a person seeking to become a user of the Giggle App must “be” a cisgender woman. The other limb (which his Honour seems to have found to be made out) was that the person be “determined as having cisgendered female physical characteristics” by Ms Grover’s review of their photograph. But a requirement of this kind made no sense in itself; and there was no evidence that Giggle and Ms Grover cared what potential users of the Giggle App looked like except in so far as physical appearance could be used to exclude people who on Ms Grover’s understanding were not women. Further, the purported condition was not facially neutral but overtly discriminatory and therefore not capable of being a “condition” for the purposes of indirect discrimination. That is, the purported “condition” was really no more than a decision-making tool for facilitating the exclusion of a category of persons on the ground that they did not come within Ms Grover’s conception of women. The result of applying the tool in that way was direct discrimination, as explained above.

Special measure: section 7D

289 Giggle and Ms Grover take issue with the construction of s 7D adopted by the primary judge. They contend that, if conduct constitutes the taking of a “special measure” to achieve “substantive equality between” the different groups of persons listed in any one of the paragraphs in s 7D(1) (here, “men and women” at paragraph (a)), the effect of s 7D(2) is that that conduct does not constitute discrimination under any of the sections listed in s 7D(2).

290 Giggle and Ms Grover’s construction works grammatically. The use of the disjunctive “or” in s 7D(2) is consistent with it. In other words, it does not strain the language of s 7D(2) to construe it as meaning that a special measure authorised by one or more of the paragraphs in s 7D(1) does not constitute discrimination under any of the sections referred to. Indeed, this is the more natural construction if s 7D(2) is read without reference to its context.

291 However, the construction of s 7D(2) that the primary judge adopted (described in the submissions as “distributive”) is also an available reading of the text of the subsection. Each paragraph of s 7D(1) has a clear conceptual link with one of the provisions mentioned in s 7D(2) (noting that paragraphs (c) and (d) both relate to the subject matter of s 7), and the provisions are listed in the same order as the corresponding paragraphs. Section 7D(2) can therefore be understood to embody an intention that a special measure for achieving substantive equality between men and women (s 7D(1)(a)) is to be taken not to constitute discrimination under s 5; a special measure for achieving substantive equality between people of different sexual orientations (s 7D(1)(b)) is to be taken not to constitute discrimination under s 5A; and so on. That construction is consistent with the maxim reddendo singula singulis (render each to each) (see Herzfeld and Prince, above, at [6.190]).

292 The context in which s 7D appears suggests that the construction adopted by the primary judge is preferable. The SDA is an anti-discrimination statute which, at least since the 2013 Amending Act, is designed to protect people against discrimination on a wide range of grounds. Nothing in the structure of the SDA suggests that it was intended to create a hierarchy of protected characteristics, or to license discrimination on one of the prohibited grounds on the footing that assistance is being given to the victims of another form of discrimination.

293 Giggle and Ms Grover’s construction leads to consequences which, while not necessarily absurd, appear surprising when compared to the preamble to the SDA and the objects set out in s 3. By a side wind, a provision encouraging measures to help eliminate one form of discriminatory conduct would authorise other forms of discriminatory conduct. To take one example (referred to in the submissions of the Commissioner), a women-only adult swimming class might well be found to be a special measure under s 7D(1)(a). It would still have that characterisation if it explicitly excluded lesbians and, on the construction of s 7D(2) advanced by Giggle and Ms Grover, would be found not to discriminate on the ground of sexual orientation (cf s 5A).

294 Meanwhile, the preamble to the SDA contains:

(a)    an express recognition of “the need to prohibit, so far as is possible, discrimination against people on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities” (emphasis added) in specified areas; and

(b)    an affirmation that every individual “has the right to the equal protection and equal benefit of the law, without discrimination on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities” (emphasis added).

295 Consistently with the preamble, one of the objects set out in s 3 is:

(b)    to eliminate, so far as is possible, discrimination against persons on the ground of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy or breastfeeding [in specified areas].

296 A construction of s 7D in which a measure designed to overcome the substantive effects of one of the forms of discrimination addressed by the SDA receives an exemption from the prohibitions on every other form of discrimination is difficult to reconcile with these statements of the Act’s purpose.

297 The submissions of Giggle and Ms Grover suggest that the SDA treats special measures as positive contributions to substantive equality and therefore regards them as non-discriminatory. It is true that the express effect of s 7D(2) is that a person who undertakes a special measure “does not discriminate” (not that the conduct is excused from the relevant prohibition). However, the argument that a special measure is a positive good (which the SDA therefore encourages) only really works in the context of an Act prohibiting discrimination on a single ground or a closely related set of grounds. It is very difficult to apply to an Act that addresses discrimination on several different grounds, in circumstances where the victim of one form of discrimination may be the perpetrator of another.

298 Section 7D was originally inserted by the Sex Discrimination Amendment Act 1995 (Cth) (the 1995 Amending Act). At the time of that Act, the SDA prohibited sex discrimination (s 5) and discrimination on the ground of marital status (s 6), pregnancy or potential pregnancy (s 7) and family responsibilities (s 7A). Section 7D as originally enacted contained reference only to ss 5, 6 and 7 (discrimination on the ground of sex, marital status and pregnancy or potential pregnancy). It replaced s 33, an earlier provision in relation to special measures which had provided an exemption from the anti-discrimination provisions. The Replacement Explanatory Memorandum to the Bill for the 1995 Amending Act (Replacement Explanatory Memorandum) observed that the new provision was “based on Australia’s international obligations to achieve equality, as required by international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women”.

299 At that time, also, to the extent that the SDA relied on s 51(xxix) of the Constitution, it only invoked the Convention on the Elimination of All Forms of Discrimination Against Women (1979) (CEDAW) (see s 9(10) of the SDA as it then stood, and the definition of “Convention” in s 4) (although the SDA was expressed by other provisions of s 9 to have effect to the extent permitted by a range of other heads of power). Section 7D as enacted can be taken to have been based on art 4(1) of CEDAW, which provides:

Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.

300 However, the paragraph of the Replacement Explanatory Memorandum set out above indicates that CEDAW was not the only international instrument in contemplation at that time. Further, the Sex and Age Discrimination Legislation Amendment Act 2011 (Cth) amended s 9(10) of the SDA so that it now gives relevant provisions effect to the extent that they “give effect to a relevant international instrument”. “Relevant international instrument” is defined in s 4 so as to encompass, in addition to CEDAW, the International Covenant on Civil and Political Rights (1966), the International Covenant on Economic, Social and Cultural Rights (1976), the Convention on the Rights of the Child (1989) and several International Labour Organization Conventions. Further amendments were made by the 2013 Amending Act so that the SDA now prohibits discrimination on grounds including intersex status and sexual orientation. Thus, while earlier versions of the SDA gave pre-eminence to the rights of women qua women (ie, to equality with men), no such pre-eminence can now be seen in the provisions of the Act or in the range of international obligations to which it seeks to give effect. The SDA in its current form seeks to provide the same measure of protection against several distinct forms of discrimination and its provisions may therefore limit the extent to which some understandings of women’s rights can be pursued. Whether that is a good thing is, of course, not a matter for this Court. The point of present significance is that the historical foundation of s 7D in art 4 of CEDAW does not have a bearing on the resolution of the present issue.

301 When s 7D is understood in its context, including the historical development of the SDA, it becomes apparent that the construction preferred by the primary judge is the correct one. It is therefore unnecessary to decide whether the Giggle App does constitute a “special measure” under s 7D(1)(a): even if it does, that provides no answer to Ms Tickle’s claims. Ground 3 of the appeal, in so far as it addresses s 7D, must therefore be rejected.

Assessment of damages

302 The primary judge erred in characterising the unlawful discrimination as indirect rather than direct, leading to the conclusion there were two acts of direct discrimination. Consequently, the award of damages by the primary judge is set aside as it has been made on an erroneous basis. It is for this Court to exercise the discretion to award damages. As explained earlier, Ms Tickle submits she should be awarded at least $30,000 in general damages, and $10,000 in aggravated damages.

303 There is no apparent dispute between the parties as to the principles applicable to assessing damages, but rather the issue is with their application to this case. It suffices then to recall particular features. The purpose of the statutory power to award damages for loss or damage under s 46PO(4)(d) of the AHRC Act is to compensate the applicant, not to punish the respondent: Wotton v Queensland (No 5) [2016] FCA 1457; 352 ALR 146 at [1788] (Wotton). Compensation may be awarded under s 46PO(4) for “injured feelings”, which carry a sense of injury, and therefore sufficient connection with the statutory concept of “loss” and “damage”: Wotton at [1622], adopting the term used by May LJ in Alexander v Home Office [1988] 1 WLR 968 at 975; 2 All ER 118 at 122. The Court in assessing the loss or damage is not doing so in a vacuum, “[i]t is done in order to give effect to a statute with a discernible purpose; and that purpose provides a guide as to the requirements of justice and equity in the case”: I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; 210 CLR 109 at [26] (Gleeson CJ) and see Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; 223 FCR 334 at [26] (Kenny J) (Richardson).

304 It is accepted that the manner in which a respondent conducts their case may exacerbate the hurt and injury suffered by the aggrieved party so as to warrant the award of additional compensation in the form of aggravated damages, including in discrimination cases: Triggell v Pheeney (1951) 82 CLR 497 (Triggell); Elliot v Nanda & Commonwealth [2001] FCA 418; 111 FCR 240 (Elliot); Kaplan v State of Victoria (No 8) [2023] FCA 1092 (Kaplan). Ms Tickle relies on the observations of Mortimer J in Wotton at [1733], recited by her Honour in Kaplan at [1762]:

In some cases, the aggravation comes not from conduct directly associated with or following on from the contravening conduct, but from subsequent conduct that has the same effect. In Elliott v Nanda (2001) 111 FCR 240; [2001] FCA 418 (Elliott) at [179]–[185], Moore J set out the kinds of additional circumstances which might justify such an award. All concerned the manner in which a respondent or defendant conducted proceedings brought against her, him or it. An example is Houda v New South Wales [2005] NSWSC 1053, in which aggravated damages of $20,000 were awarded for the way the defendant conducted its defence of the proceedings against the plaintiff.

305 Finally, it is necessary to consider the prevailing community standards when considering general and aggravated damages: Richardson at [96].

306 Ms Tickle in ground 4 of her cross-appeal contends that there were errors in the primary judge’s assessment of damages, including the weight given to her evidence, the finding that only a limited degree of harm occurred in relation to an incident during Ms Grover’s cross-examination when, confronted with an extremely tasteless candle incorporating a demeaning caricature of Ms Tickle (the laughing incident), and his Honour’s failure to conclude that Ms Grover’s subsequent conduct warranted an award of aggravated damages. In meeting this ground Giggle and Ms Grover also challenge aspects of the primary judge’s reasoning and assessment. Where relevant to our assessment of damages, we address the topics raised below.

307 First, the primary judge summarised Ms Tickle’s evidence relevant to the assessment of general and aggravated damages at J [217]. His Honour was critical about the extent and nature of the evidence (eg observing that Ms Tickle adduced no observational, medical or other expert evidence to quantify loss or damage (at J [217]), and that he was unable to attribute her hurt feelings to Giggle and Ms Grover (at J [227])). There is force in those criticisms, to which we will return. That said, the weight to be given to the evidence of Ms Tickle on the impact of the discrimination on her is, in the circumstances, now a matter for this Court. Given that the evidence was unchallenged as Ms Tickle was not required for cross-examination, this Court is in as good a position to assess its weight.

308 Second, the primary judge awarded what his Honour described as a modest award of compensatory damages (at J [227]). This appears to be based on the conclusion that the proceeding “was brought on a point of principle rather than due to any lasting hurt or disadvantage” (at J [228]). It may be, as the primary judge described at J [226] and [228], that Ms Tickle had given up using the Giggle App because she had found that there were not many users to connect with at the time and her evidence went no further than establishing she wanted the continued ability to access the Giggle App rather than having any express or implied intention to actually access it or otherwise use it. Even if that is so, it fails to recognise that, although Ms Tickle may bring this case as a point of principle, there is no basis to suggest that her seeking re-admission to the Giggle App was anything other than genuine. The extent of her intended future use of the Giggle App does not necessarily diminish hurt feelings caused by her removal from the Giggle App and the refusal to reinstate her, given the discriminatory basis of those actions.

309 Third, the primary judge did award aggravated damages for the laughing incident, although his Honour considered the additional harm caused was slight and unquantifiable. In doing so the primary judge took this factor into account in awarding the single amount of damages. That approach was open to the primary judge. Giggle and Ms Grover challenge this finding, submitting the act was simply a spontaneous courtroom response, which does not accord with the findings of the primary judge. We note that Ms Grover accepted in cross-examination that she had seen the candle before being shown it in Court. His Honour correctly described the caricature as offensive and belittling (at J [276]). On this, the primary judge has a significant advantage over this Court. It was the primary judge who saw and heard the cross-examination of Ms Grover and her reaction. His Honour saw how the events unfolded. Given the nature of the finding, the transcript of the events cannot put this Court in the same position: see eg Taylor v Killer Queen LLC [2026] HCA 5 at [222] (Jagot J); AA v The Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 at [75] (Gageler CJ, Jagot and Beech-Jones JJ). On this, deference should be given to the position of the primary judge. We do not disturb that finding.

310 Fourth, a significant part of Ms Tickle’s submissions was directed to the failure of the primary judge to find aggravated damages in respect to the conduct of Ms Grover when she misgendered Ms Tickle in Court. His Honour’s findings in respect to the submission that Ms Grover misgendering Ms Tickle during the hearing warranted aggravated damages are at J [268] and [274]:

This brings us to the second difficulty for this basis: although the statements by Ms Grover that Ms Tickle is not a woman were hurtful, they were made bona fide. As has been made evident in the conduct of these proceedings, what the word “woman” means is deeply contested, and there must be scope in which persons can put forward an argument, both in proceedings and in their public discussion of them, where it is genuinely held and a legitimate part of their case. That is to be contrasted with the requirement set out in Triggell at 514

…

In this case, nothing indicates that the respondents are not expressing a genuine, if (as I accept) hurtful, belief that Ms Tickle is a man. No submissions were made by Ms Tickle’s counsel to the contrary. While some of the ways in which the respondents expressed this belief could have been avoided, and in that sense were gratuitous, I am not satisfied that on a preponderance of the authorities that that is enough to found an award of aggravated damages

311 Paragraph J [268] addressed the conduct of Ms Grover in making public statements (addressed further at [317]-[319] below), with the passage at J [274] relating to the conduct during the hearing.

312 As is apparent from those passages, the basis on which aggravated damages were not awarded for this conduct is that the actions were bona fide: that they were based on a genuine belief. We do not accept that as a sufficient basis for finding that such conduct does not warrant awarding aggravated damages. In Triggell at 514, to which the primary judge referred in this connection, the Court was considering whether pleading and maintaining a defence of truth in a defamation case could constitute aggravating conduct. Absence of bona fides was therefore critical in the circumstances of Triggell, but the case does not on our reading stand for the proposition that a bona fide belief in the correctness of one’s position is a complete answer to a claim for aggravated damages. The majority in Triggell at 514 identified the conduct of the defendant that could not be taken into consideration in this connection as conduct “which was not merely bona fide but was justifiable or proper”.

313 The submissions regarding the character of the conduct alleged to aggravate the harm are to be considered in the context of the protective purposes of the SDA and the goals of eliminating discrimination, including gender identity-based discrimination.

314 This case concerns whether Ms Tickle had established discrimination by Ms Grover. As evident from the reasons in relation to the liability aspect of this appeal, this case is concerned with the meaning of various terms and provisions in the SDA. This is an argument based on the construction of the SDA. That Ms Grover was contending Ms Tickle was not a woman within the meaning of the SDA did not require her to repeatedly misgender Ms Tickle during the primary hearing. It was unnecessary for the bona fide conduct of her defence. Conducting her defence did not require Ms Grover to refer to Ms Tickle using male pronouns. Ms Grover is entitled to her beliefs, but the belief of Ms Grover was not relevant to the determination of the issue of statutory construction. Further, Ms Grover’s belief, accepting it was genuinely held, did not render her repeated misgendering of Ms Tickle a bona fide part of the conduct of her case. Some of her conduct was gratuitous, disrespectful and unnecessary to the conduct of her case. It did not advance her defence. The primary judge accepted that the conduct was hurtful to the applicant. In this respect the manner in which Ms Grover conducted her case aggravated the hurt suffered by Ms Tickle.

315 Fifth, part of the conduct relied on by Ms Tickle as a form of aggravation was statements made publicly by Ms Grover, and repeated in evidence, that she felt scared, threatened and harassed by Ms Tickle’s call and text, feared that Ms Tickle might confront her in person, and she had no idea how Ms Tickle obtained her personal mobile phone number (at J [122]). His Honour concluded at J [270]:

These comments can be distinguished from allegations made by Ms Grover that Ms Tickle had harassed her, which Ms Grover had alluded to in Twitter posts and in an interview published by the Weekend Australian Magazine. Ms Grover also accepted in oral evidence that she had stated in other interviews that she had been harassed by the applicant and that she was afraid of her, although these statements were not referred to in Ms Tickle’s affidavit. These statements were misleading to the extent to which they suggested that Ms Grover could really have no idea how Ms Tickle had received her mobile phone number. She had in fact provided it to Ms Tickle in an email exchange. Such an accusation was not a part of the respondents’ case (and it would have been improper if it had been), and I would find it very difficult to consider these statements bona fide, given Ms Grover must have been aware that her mobile phone number was included in her email signature even if she had forgotten the specifics of her email exchange with Ms Tickle at the time she made the statements in question. Ms Grover did not resile from those accusations in cross-examination, insisting that she did not know exactly how Ms Tickle had gotten her number. That was disingenuous.

316 The primary judge considered the comments while hurtful lacked a sufficient nexus with the unlawful discrimination he had found (at J [271]). However, in so far as the comments were made in evidence, Ms Grover in conducting her case persisted in the assertions, even though she must have known how Ms Tickle obtained her phone number. This relates to the series of emails Ms Tickle sent to Ms Grover as a result of being excluded from the App. It is linked to the discriminatory act of exclusion and the refusal to re-admit her to the App. We also note that the terms of the email exchanges are polite on their face. As is apparent from Ms Grover’s cross-examination, her assertion that the email exchanges were impolite was based on the fact that the person she was communicating with turned out to be (in her eyes) a man. This was not necessary to the conduct of her defence. It was part of the statements made by Ms Grover which at least impliedly portrayed Ms Tickle as a predatory male.

317 Sixth, as to the conduct of Ms Grover outside of the proceedings which is relied on by Ms Tickle, she submits Ms Grover engaged in a sustained attack on her integrity and gender identity which is related to the proceedings and that the conduct was improper, unjustifiable or lacking in bona fides. This is conduct which is said to have occurred over an extended period of time including the public and wide-reaching nature of Ms Grover’s comments about Ms Tickle, in the context of the proceedings. Ms Tickle submits that the comments were directed to her “integrity and gender identity, infused with innuendo [sic] that Ms Tickle, and indeed transgender women more generally, pose a threat or danger to cisgender women”. The damages which may be awarded to an applicant whose distress is made worse by the respondents’ conduct after the wrongful act or acts were committed, includes the conduct of the defence but is not limited to that: Triggell at 514; Taylor v August Pemberton Pty Ltd [2023] FCA 1313; 328 IR 1 at [524]; see Elliot at [179]-[185]; Magar v Khan [2025] FCA 874; 342 IR 403 at [208]. The subsequent conduct must, of course, have a sufficient nexus to the act of discrimination. That was what was found to be lacking by the primary judge.

318 In so far as the evidence of Ms Tickle relates to messages and conduct by persons other than Ms Grover, the primary judge concluded there is no evidence of a causal link to Ms Grover’s conduct (at J [256]-[257]), although his Honour found some of the messages were plainly offensive. In respect to merchandise, the primary judge did not accept that the products printed only with Team Giggle and nothing more caused further hurt to Ms Tickle. His Honour observed there was no evidence to that effect from Ms Tickle (at J [260]). In relation to other more offensive products, his Honour concluded there was no evidence to establish a sufficient nexus with the conduct of Ms Grover (at J [260]). Pausing there and bearing in mind the nature of damages pursuant to s 46PO(4), it is necessary to attribute liability for the alleged aggravating actions to Ms Grover. In relation to each of those categories there was no real submission on the appeal that attempted to establish a nexus. That said, in the evidence there is conduct by third parties which Ms Grover reposted to her X profile which can be attributed to her.

319 In respect to posts by Ms Grover commenting on the proceedings, his Honour found there were two difficulties. First, Ms Tickle’s evidence does not distinguish between the harm caused by Ms Grover’s posts and those of others (at J [262]-[267]). Second, although the statements made by Ms Grover that Ms Tickle is not a woman were hurtful and his Honour accepted Ms Tickle’s evidence as to their effect on her, they reflected bona fide beliefs (at J [268]-[270]). The primary judge regarded the position as different in relation to the comments referred to in the observation above (see J [125]-[126]). His Honour’s findings concerning bona fide belief are recited above at [310]. For the reasons already explained, bona fide belief in this context, where aspects of some of the comments were gratuitous in relation to the proceedings, does not preclude aggravated damages. Rather, many of the public statements of Ms Grover were not made at a general level but were directed to the actions the subject of Ms Tickle’s complaint to the AHRC and to Ms Tickle personally.

320 Returning to the overall assessment, the primary judge summarised the evidence at J [217], referring to the relevant passages in Ms Tickle’s affidavit. It is worth noting that these paragraphs immediately follow Ms Tickle referring to the fact “Ms Grover has publicly made statements about me and the complaint that I made to the AHRC”, identifying various public forums. The passages refer to statements both at the time of the acts of discrimination and after the AHRC complaint. As referred to above, the primary judge was critical of the evidence of harm (eg at J [217], [220]-[222], [233]).

321 The onus is on Ms Tickle to establish the harm as a result of the discrimination. The evidence is limited. In submissions, Ms Tickle described the evidence as succinct and powerful. The evidence is in many aspects composite in that it does not distinguish between harm caused by particular events and harm being aggravated by events. Some aspects address matters relevant to both general and aggravated damages. The issue arises that not all factual premises underpinning the evidence have been established as linked to the discrimination. No evidence was called in support, including no medical evidence in circumstances where Ms Tickle described being on anti-anxiety medication. While we accept, as the primary judge did, that harm was caused to Ms Tickle, the limitations of the evidence necessarily impede the Court’s ability to properly assess damages.

322 The discrimination went to Ms Tickle’s inherent sense of self and identity, which it can readily be accepted are matters of significance to her. Ms Tickle has established that she has suffered from two acts of direct discrimination based on her gender identity. The loss of access to the Giggle App may be modest, as described by the primary judge, but it can be accepted that the basis of her exclusion from the Giggle App was hurtful, in the manner she describes. Further, we accept that there is aggravating conduct. Ms Grover’s public commentary on the actions that are the subject of the complaint, which is related to Ms Tickle, includes aspects that are gratuitous to the proceedings. We accept that Ms Tickle has also established she suffered additional harm from that conduct. The commentary, and her evidence in the proceedings, used language which portrayed Ms Tickle as a predatory male, seemingly to justify her position. Ms Tickle’s description, that Ms Grover’s public statements evidenced a campaign against her in respect to the acts that are the basis of these proceedings, is apt. Again, this is gratuitous to the proceedings.

323 Taking into account the relevant considerations and in light of the evidence, we find the appropriate award of general damages is $12,000. The aggravating conduct described above, warrants an award of $8,000.

Resolution

Substantive orders

324 Our conclusion on the issue of direct discrimination above, together with the rejection of Giggle and Ms Grover’s argument on the effect of s 7D, leads to the conclusion that the declaration made by the primary judge should be set aside and a declaration should be made substantially in the terms sought by Ms Tickle’s cross appeal.

325 The order of the primary judge made on 23 August 2024 in relation to damages should be varied, with Giggle and Ms Grover to pay to Ms Tickle a sum of $20,000.

326 The appeal (which sought the setting aside of all orders made below and substitution of an order dismissing Ms Tickle’s application) should be dismissed.

Costs

327 While we would make a different declaration from that made by the primary judge, the result in practical terms is the same as the result below: substantial success for Ms Tickle including an award of damages in her favour. The costs orders that his Honour made (that Giggle and Ms Grover pay Ms Tickle’s costs, with the costs relating to certain issues being capped in accordance with an earlier order) should therefore not be disturbed.

328 The Court made an order on 30 July 2025 that the costs recoverable by any party from another party be limited to $50,000 in respect of each of the appeal and the cross-appeal. On our reading, those orders treat Giggle and Ms Grover as one “party” (noting that they have relied on the same notice of appeal and made joint submissions at every stage). Subject to these limits, Giggle and Ms Grover should be ordered to pay Ms Tickle’s costs of the appeal and the cross-appeal.

329 There should be no order as to costs for or against the interveners.

Associate:

Dated:    15 May 2026

SCHEDULE OF PARTIES