Tickle v Giggle is an Australian law case regarding the legality of the trans-exclusionary membership policies used on an app platform.[1][2]
Background
In 2020, Sall Grover founded Giggle for Girls, a mobile app designed as a social networking platform for cisgender women.[3] The name, Giggle, is described as a collective noun for women,[4] with the app presented as catering only to cisgender women, offering a safe online space for them to connect and find support in various areas such as finding roommates, freelancing, emotional support, and activism.[4][5] Grover has said she was driven to develop a digital platform for cisgender women by her desire to guard against the advances of predatory men, a view that was informed by her experience with misogyny and sexual violence.[6]
The app's membership policies restricted access to adults assigned female at birth.[6] To verify users' birth sex, it relied on technology developed by Kairos, a company that offers facial recognition software.[6][7] The software was criticised by Giggle users for failing to identify women of colour as female.[7]
The app was particularly criticised for excluding transgender women.[8] In response to criticism, Grover said that the exclusion of trans women was intentional, began self-identifying as a trans-exclusionary radical feminist,[7] and referred to trans women as "males".[9]
By 2021, the app reportedly had 20,000 users from 88 countries.[10][11]
Grover decided to shut down the app in July 2022.[12] She has alleged that transgender activists have sent numerous rape threats and death threats in relation to the app's membership policy.[13]
April 2024: hearing began before Justice Robert Bromwich with Giggle and Grover represented by Bridie Nolan.[21] The court was required to examine the application of the Australian government's 2013 amendments to the 1984 Sex Discrimination Act.[22] The amendments, which relate to gender identity, have not been tested in court prior to this case. The court's decision was expected to determine if the social networking app may be considered as a special measure to advance women's equality under the Sex Discrimination Act, where the exclusion of men is permitted under law.[23] The hearing concluded after several days of arguments.[24][25]
The Australian Human Rights Commission (AHRC) participated in the legal case by sending representatives to the court, including Anna Cody, the Sex Discrimination Commissioner.[26] The commission's role in the case was extended as a 'friend of the court' (amicus curiae) to clarify the provisions in Australia's Sex Discrimination Act.[26] While the Commission sought earlier conciliation between the parties, it declined to offer submissions to the case.[15]
August 2024: On 23 August 2024, Bromwich handed down his verdict, finding that Tickle had been indirectly discriminated against under the Sex Discrimination Act. The court ordered Grover to pay A$10,000 to Tickle in damages, plus legal costs.[29]
In discussing his reasoning, Bromwich refuted Grover's arguments that sex was unchangeable, finding "These arguments failed because the view propounded by the respondents conflicted with a long history of cases decided by courts going back over 30 years. Those... cases established that on its ordinary meaning sex is changeable".[29]
Regarding the treatment of Giggle as a "special measure", Bromwich found that "even if the Giggle App could have been considered a special measure to achieve equality between men and women, that would not have allowed the respondents to discriminate on the basis of gender identity, which is distinct from discrimination against women on the basis of sex under the SDA. The respondents' argument therefore conflicted both with longstanding law as to how sex should be understood in the SDA, and the gender identity provisions of the SDA".
Bromwich found that Grover had behaved in an "offensive and belittling way" towards Tickle whilst in court by laughing at a caricature of Tickle.[30]
Bromwich also refuted both the constitutional challenges raised by Grover. Grover contended that section 22 of the Sex Discrimination Act was outside of the scope of Commonwealth authority, and so discrimination based on gender identity was not actionable under the constitution. Bromwich found that "section 22 is supported by the Commonwealth's external affairs power, as an enactment of Article 26 of the International Covenant on Civil and Political Rights (1966)", specifically as it states "the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status". Bromwich considered "other status" to encompass gender identity.[31]
The second constitutional challenge made by Grover was that there was "inconsistency between the Births, Deaths and Marriages Act 1994 (Qld) and the SDA". Bromwich found that there was no inconsistency, and that the "two statutes can and do operate harmoniously".[31]
Bromwich also stated in his judgement that Grover and her legal team had presented their case in a "disjointed and somewhat incoherent way".[30]
October 2024: Grover launched an appeal against the judgement.[32]
^ abcScheuerman, M. K., Pape, M., & Hanna, A. (2021). Auto-essentialization: Gender in automated facial analysis as extended colonial project. Big Data & Society, 8(2), 20539517211053712.
^Thieme, K., Saunders, M. A. S., & Ferreira, L. (2024). From language to algorithm: trans and non-binary identities in research on facial and gender recognition. AI and Ethics, 1-18.
