FEDERAL COURT OF AUSTRALIA
Giggle for Girls Pty Ltd v Tickle [2026] FCAFC 64
SUMMARY
In accordance with the practice of the Federal Court in some cases of public interest, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website together with this summary.
The appellants (Giggle for Girls Pty Ltd and Ms Sally Grover) operated an App called “Giggle”. The Giggle App was designed to be a safe online space exclusively for women. The respondent (Ms Roxanne 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) that records her as being of the female sex. Ms Tickle also uses, and is referred to by, female pronouns.
In early 2021, Ms Tickle registered as a user of the Giggle App which included uploading a self-taken photograph of her face, commonly known as a “selfie”. In September or early October 2021, her access was blocked. She sought to be re-admitted but this did not occur.
Ms Tickle sought declaratory relief and damages against the appellants under the Australian Human Rights Commission Act 1986 (Cth). This was on the basis that Giggle and Ms Grover had unlawfully discriminated against her on the ground of her gender identity in the provision of a service contrary to s 22 of the Sex Discrimination Act 1984 (Cth).
In August 2024, a judge of the Court found that the appellants had engaged in indirect discrimination under s 5B(2) of the Act contrary to s 22 in excluding Ms Tickle from the Giggle App because they had imposed a condition on access to the App that operated to disadvantage transgender women. In so holding, the primary judge rejected the appellants’ contention that they did not unlawfully discriminate against Ms Tickle because the App was (in the appellants’ submission) a special measure for promoting substantive equality between men and women under s 7D of the Act. Accordingly, his Honour declared that Ms Grover and Giggle had unlawfully engaged in indirect discrimination and awarded damages to Ms Tickle in the sum of $10,000.
Giggle and Ms Grover appealed from the primary judge’s decision. Ms Tickle cross-appealed, seeking a declaration that Giggle and Ms Grover had engaged in two counts of direct discrimination on the ground of gender identity under s 5B(1) of the Act by excluding her from the Giggle App and subsequently refusing to re-admit her. Ms Tickle also sought a larger award of damages.
Ms Tickle has been successful in her cross-appeal. Under the Act, gender identity is defined as meaning gender-related identity and gender-related characteristics including appearance. The Full Court has found that:
(a) Giggle and Ms Grover both excluded Ms Tickle from the Giggle App, and refused to readmit her, on the basis of her gender-related appearance by reference to her selfie; and
(b) this amounted to direct discrimination by reference to a characteristic that pertains to people of Ms Tickle’s gender identity, being transgender women.
The Court has also found that the primary judge was correct in his interpretation of s 7D dealing with special measures. 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.
Because the Court has found two instances of direct discrimination, it was necessary to re-assess damages. The Court has come to the view that the proper award, taking into account aggravating conduct by Ms Grover, is $20,000.
While this proceeding involved issues on which there are differing views within the community, it is important to emphasise that the questions for determination by the Court involved the construction and application of provisions of the Sex Discrimination Act. The Court has interpreted that Act in accordance with normal principles of statutory construction. The Court is not empowered to give effect to its own view about the desirability or otherwise of that law.
It should also be emphasised that this case is concerned with only one of the forms of discrimination covered by the Sex Discrimination Act, and with circumstances in which it has not been argued that any of the general exemptions under that Act apply. In addition, there is the capacity to grant exemptions from provisions of the Act on application (s 44). Ultimately, each case of alleged discrimination under the Act will fall to be determined in its own unique circumstances.
JUSTICES PERRY, ABRAHAM AND KENNETT
15 May 2026
SYDNEY
