Tickle vs Giggle sounds like a children’s game. Game it is, but not for children. It is a high stakes Australian legal battle to determine what a woman is.

The first round was won in the Federal Court last week by transgender activist Roxanne Tickle. Justice Robert Bromwich ruled that the owner of a women-only app called “Giggle for Girls”, Sall Grover, must pay A$10,000 plus costs (capped at $50,000) to Tickle. Giggle allegedly discriminated against Tickle by excluding Tickle from the app.

Grover plans to appeal.

Tickle vs Giggle has attracted international attention and could influence the definition of “woman” in other jurisdictions. Here’s the background.

Tickle lives in Queensland. He was born as a male, but in 2017 began living as a woman. In 2018 the state government issued a new birth certificate with his current name. In 2019, he had gender-affirming surgery and in 2020 the state government reissued his birth certificate as a female. And in 2021 Tickle, now legally a “she”, signed up for the Giggle app.

Giggle was the brainchild of Sall Grover, an Australian who had worked for years in Hollywood as a scriptwriter. She had had her fill of #MeToo style abuse there and wanted to create a woman-only virtual space.

Applicants to Giggle were required to submit a photo which was screened with AI image recognition software. Tickle initially passed the vetting process, but Grover discovered that he (she insists on using that pronoun) had invaded Giggle’s space. She booted him off.

Tickle indignantly sued for $200,000 under the Sex Discrimination Act (SDA), alleging that exclusion from Giggle led to “constant anxiety and occasional suicidal thoughts”. Tickle also demanded that Grover issue a written apology. 

The SDA, which has been amended several times to make it more trans-friendly since it was promulgated in 1984, clearly protects transgender people. But the original idea of a Sex Discrimination Act was to protect women. The unamended 1984 version was binary to the bone. It said that the Act’s purpose was to promote equality between men and women and to eliminate discrimination against “persons” on the ground of sex, marital status or pregnancy. Paradoxically, then, a law written to protect women from male aggression has been transformed into a law to protect men who want to invade women's privacy. 

Grover maintains that she was excluding men from a women-only space.

The vision was [she said] to create a little corner of the Internet where women from all over the world could have a refuge away from men. It could be for serious reasons, very superficial reasons, or very practical reasons. It would be a place without harassment, “mansplaining”, “dick pics”, stalking, and aggression, and other male patterned online behaviour. A place to vent and get advice from other women and find out what was happening in the real world in a female-only environment.

In her view, Tickle was a man and therefore had no right to use the app. Tickle maintained that his birth certificate proves that he is a woman.

Both parties agreed that Tickle had been discriminated against; they differed on whether Tickle could change sex.

Justice Bromwich has backed the transgender side. For the past 30 or so years, he wrote, Australian legislation has assumed that sex is “changeable and not necessarily binary”. Sex is merely a matter of legal definition and has nothing to do with chromosomes, anatomy, genitalia, or hormones: “it is legally sufficient that Ms Tickle is recorded as female on her updated Queensland birth certificate for her to be, at law, of the female sex.” He went on to declare:

The concept of sex has broadened further over the 30 years since SRA, especially by reason of the wide scope that now exists for legally changing the sex of a person on official birth records. The acceptance that Ms Tickle is correctly described as a woman, reinforcing her gender identity status for the purposes of this proceeding, and therefore for the purposes of bringing her present claim of gender identity discrimination, is legally unimpeachable.

This sounds remarkably like Humpty-Dumpty lecturing Alice:

`When I use a word,' Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean--neither more nor less.'

Mark the word “scornful” – it describes the tone of Humpty-Dumpty Bromwich in this judgement.

Gender identity is well-trodden ground in the media, legal circles and university lecture rooms, but the fundamental question remains unanswered. If Roxanne Tickle can identify as the opposite sex, why can’t he identify as a snail or kangaroo or cockroach? Or as a kindergartener who needs to be adopted? Or as 95-year-old who needs a pension? Or as an Aboriginal? Justice Bromwich refused to engage with these obvious objections.