What is a woman? Australian court rules in groundbreaking case

A transgender woman from Australia has won a discrimination case against a women-only social media app after she was denied access on the grounds that she was male.

It is a landmark ruling on gender identity, and at the heart of the case was the increasingly contentious question: What is a woman?

In 2021, Roxanne Tickle downloaded “Giggle for Girls” – an app marketed as an online haven where women can share their experiences in a safe space where men are not allowed.

To gain access, she had to upload a selfie to prove she was a woman, which was evaluated by gender detection software designed to weed out men.

However, seven months later – after successfully joining the platform – her membership was revoked.

Tickle claimed that as a woman, she had a legal right to use services intended for women and that she had been discriminated against because of her gender identity.

She sued the social media platform and its CEO Sall Grover, demanding 200,000 Australian dollars (US$134,000 or £102,000) in damages. On Friday, the Federal Court found that she had been the victim of indirect discrimination and ordered the app to pay 10,000 Australian dollars plus costs.

But Giggles's lawyer argued that sex is a biological concept.

They openly admit that Tickle has been discriminated against – but on the basis of sex, not gender identity. Denying Tickle access to the app is legitimate gender discrimination, they say. The app is designed to exclude men, and because the founder perceives Tickle as male, she argues that denying her access to the app was legitimate.

This case, known as Tickle vs Giggle, is the first in which a case of alleged discrimination based on gender identity has been heard in a Federal Court in Australia.

It captures how one of the most bitter ideological debates – that of trans inclusion versus gender rights – can be played out in court.

Roxanne Tickle was born a man but changed her gender and has been living as a woman since 2017.

When she testified in court, she said: “Until this case, everyone treated me like a woman.”

“From time to time I get frowns, stares and questioning looks from people, which is quite unsettling… but they let me go about my business.”

But Sall Grover believes that no person has a gender or can change their gender – and this is the pillar of gender-critical ideology.

When Tickle’s lawyer Georgina Costello cross-examined KC Grover, she said:

“Even if a person who was assigned male at birth becomes a woman through surgery and hormone treatment, removes her beard, undergoes facial reconstruction, lets her hair grow long, wears makeup, wears women's clothing, calls herself a woman, introduces herself as a woman, uses female dressing rooms, changes her birth certificate – do you not accept that that is a woman?”

“No,” Grover replied.

She also said that she would no longer address Tickle as “Ms.” and that “Tickle is biologically male.”

Sall Grover identifies herself as a “TERF” – an acronym that stands for “trans-exclusionary radical feminist.” TERFs' views on gender identity are widely viewed as hostile toward transgender people.

“I am being taken to federal court by a man claiming to be a woman because he wants to use a women-only space I created,” she posted on X.

“There is no woman in the world who would have to sue me to use this women's space. It takes a man for this case to exist.”

She says she created her app, Giggle for Girls, in 2020 after enduring a lot of abuse from men on social media while working as a screenwriter in Hollywood.

“I wanted to create a safe space just for women in the palm of your hand,” she said.

“Tickle's belief that he is a woman is a legal fiction. His birth certificate was changed from male to female, but biologically he is and always will be a man.”

“We are committed to the safety of all women-only spaces, but also to the fundamental reality and truth that should be reflected in the law.”

Grover had previously stated that she would appeal the court's decision and take the case to the Supreme Court of Australia.

The outcome of this case could set a precedent for resolving conflicts between rights related to gender identity and gender-based rights in other countries.

To understand this, it is crucial to look at the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), an international treaty adopted by the United Nations in 1979 that is effectively an international charter of women's rights.

Giggle's defence argued that by ratifying CEDAW, Australia was committed to protecting women's rights, including in relation to single-gender spaces.

Therefore, today's ruling in Roxanne Tickle's favour will have implications for all 189 countries that have ratified CEDAW – from Brazil to India to South Africa.

When it comes to interpreting international treaties, national courts often look to other countries for guidance.

The Australian interpretation of the law in a case that attracted such media attention is likely to have global implications.

As more courts rule in favor of gender identity claims over time, other countries are more likely to follow suit.