Trans woman Roxanne Tickle takes female-only app Giggle to court after membership rejection

A trans woman’s legal case against the female-only networking app Giggle will challenge the protection of gender identity under the Sex Discrimination Act.

Giggle, founded by Gold Coast businesswoman Sall Grover, was set up to allow women and girls to chat online in an environment free of men and boys.

It requires users to upload a picture of themselves and ‘bio-metric gender verification software’ then determines whether the person is female.    

Trans woman Roxanne Tickle, who was refused access to the app, has taken Sall and Giggle to the Federal Court alleging unlawful discrimination under the Human Rights Commission Act.

The landmark case is set to test the conflict between sex and gender identity in Australian law, with Sall arguing the Sex Discrimination Act is constitutionally invalid.  

Changes made to the Sex Discrimination Act by the Gillard government in 2013 made it unlawful to discriminate against a person based on gender and removed the definitions of a man and woman. 

Sall’s legal team will argue those amendments go against the Conventions on the Elimination of All Forms of Violence Against Women (CEDAW), which the Act was created to put into effect.

Roxanne has been trying gain access to Giggle since early 2021 when she got through its automatic gender recognition technology.

The 53-year-old was removed from Giggle when a standard manual check was carried out.

Sall said she did not know at the time she removed Roxanne she was transgender, but merely saw an uploaded photo of a person she believed to be a man.

Roxanne, from Lismore in northern New South Wales, emailed and then texted Sall asking why she’d been removed.

Giggle was established by Gold Coast businesswoman Sall Grover (above) to allow women and girls to chat online in an environment free of men and boys. It requires users to upload a picture of themselves and software then determines whether the person is female

When Sall refused to allow her access, Roxanne filed a complaint with the Human Rights Commission.

Sall rejected conciliation and in October last year was served Federal Court documents.

Tickle had brought the same claim in July last year but withdrew it before the matter went to court. 

In Roxanne’s application for Giggle membership she said although her sex at birth was male, her birth certificate had been reissued to say she was female and a letter from her physician confirmed her gender was female.

‘I am legally permitted to identify as female,’ she wrote.

Roxanne said she had felt ‘increasingly uncomfortable’ by statements made by Sall on Twitter and in interviews with local and international media outlets, as well as posts by Sall and others on the Giggle app.      

In a new lawsuit filed in December Roxanne said she was seeking damages, a written apology and access to Giggle.

Sall’s legal team argues there is a clear conflict between the sex-based rights of women and the rights of those claiming a gender identity.

In Roxanne’s application for Giggle membership she said although her sex at birth was male, her birth certificate had been reissued to say she was female and a letter from her physician confirmed her gender was female. Roxanne is pictured

They claim Sall and Giggle have not discriminated against Roxanne on the basis of gender identity, but rather on the basis of her sex.

Discrimination on that basis is protected under the Act when it is deemed necessary to protect or achieve equality for women.

The case had its first hearing on February 18 when Giggle’s barrister Bridie Nolan told the court Sall planned to raise ‘constitutional matters’ and the attorney-general might wish to be heard.

Justice Robert Bromwich said: ‘This is the sort of case, without going into the ins and outs of it where there are likely to be… strongly held opposing views.’

Rachael Wong, CEO of Women’s Forum Australia, said the case would be the first opportunity to resolve the conflict between sex and gender and test whether sex was still a ‘protected attribute’ in Australia.  

‘If the laws that undermine sex-based rights are found to be unconstitutional or otherwise unlawful it could invalidate laws across the country providing protection for gender identity,’ Rachael said. 

Giggle was set up as an online environment free of men and boys

‘As a result the sex-based protections for women and girls would be reinstated when it comes to their rights to female-only spaces, services, sports and so on.

‘Any other case of a man trying to force himself into a female-only space would be seen as wildly inappropriate.’

Holly Lawford-Smith, Associate Professor in Political Philosophy at the University of Melbourne, said the Sex Discrimination Act protected trans people from being discriminated against on the basis of their gender identity.

‘It will be interesting to see if the courts interpret this as meaning, they cannot be recognised or treated as their sex for any purpose, whether by AI (artificial intelligence) or business offering single-sex services, Holly said.

‘There has been confusion among many service providers about how to deal with the interaction of sex and gender identity. 

‘Can a female-only app exclude all males? Or only the males who don’t also identify as women? This case is important because it will bring clarity on that issue.’

Rachael Wong, CEO of Women’s Forum Australia, said Roxanne’s case against Giggle would be the first opportunity to resolve the conflict between sex and gender and test whether sex was still a ‘protected attribute’ in Australia. Rachael is pictured

Holly said the case would determine whether sex and gender identity in law should be conflated, as it had since the Gillard government removed the definitions of man and woman in the Sex Discrimination Amendment Act 2013.

‘This case dramatises the problem at the heart of gender identity theory: that gender identity is private, so the individual is the authority on it,’ she said. 

‘An AI detecting gender ‘identity’ can only guess; a single-sex service provider must defer to the client. This makes single-sex service provision effectively impossible. 

‘Hopefully the courts will take the opportunity to address this bizarre and untenable situation’.

Roxanne said she was not able to comment and her lawyers, Barry Nilsson, also refused to comment on the case.

A spokesperson for the Australian Human Rights Commission said it was not appropriate for them to comment on the matter, which returns to court on April 28.