A transgender woman was treated “as a hostile invader” and directly discriminated against twice when she was excluded from a women-only social media app, a court has heard.
Giggle for Girls and its CEO, Sall Grover, are challenging Justice Robert Bromwich’s landmark federal court judgment that found Roxanne Tickle was indirectly discriminated against when she was barred from the platform in September 2021. The case was the first gender identity discrimination case to reach the federal court.
On the second day of the appeal hearing in Sydney, Tickle’s barrister, Georgina Costello KC, told the court her client was directly discriminated against, both when she was barred from the app and when the app refused to readmit her.
Costello said her client was treated “as a hostile invader”, rather than how a cisgender woman would have been treated when joining Giggle for Girls.
The court heard Tickle, who is from regional New South Wales, presented as a woman in an onboarding selfie she uploaded to the app, including by wearing a low-cut top and with her hair down. Grover checked the photo and barred Tickle from membership to the app.
Tickle then approached Grover multiple times asking for her membership to be reinstated. Grover’s actions in response were again in breach of the Sex Discrimination Act because she saw Tickle as a man, despite Tickle’s continued presentation and identity as a woman, the court heard.
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Costello said Bromwich erred when he did not consider evidence including that Tickle presented as a woman in her selfie, that she politely inquired as a female about her access to the app not functioning, and that Grover treated her as a woman when she said she would “look into” the issues.
“She thinks she’s dealing with a woman, then she looks at the photo and decides she is dealing with a man,” Costello said, adding that Grover had a “wilful blindness to gender identity”.
Tickle’s team put to the court that Grover knew she was dealing with a transgender woman – a claim that Grover has always denied.
Grover’s denial she knew Tickle was a transgender woman was “not a defence to direct discrimination”, Costello said. If it was, a person could simply deny knowledge of an attribute protected by the Sex Discrimination Act, which would subvert its function, the court heard.
In response to Costello’s arguments, Grover’s barrister, Noel Hutley SC, said Bromwich was correct in finding direct discrimination had not occurred and that his client was not aware Tickle was transgender.
When dealing with Tickle’s potential readmittance to the app, Grover was reacting to a photograph only, he said.
“My client looked at that and formed the view that the respondent was a male,” he told the court, adding that the organisation was having to review “thousands” of selfies a day.
He said Costello should have cross-examined Grover in court about her affidavit containing evidence she was aware of Tickle’s full name, had communicated with her as a female and only then saw her photo.
The court heard Tickle’s core sense of identity and self had been undermined by Grover’s actions.
Tickle is seeking a total of $40,000, which includes $30,000 in general damages, and $10,000 in aggravated damages. Her team will argue previously awarded damages of $10,000 are inappropriate and did not take into account Grover’s conduct around the proceedings.
The court’s attention was taken to a candle depicting a crude caricature of Tickle, on sale as part of fundraising efforts for Giggle’s campaign. In April 2024, the court was not shown the candle as Bromwich found it too offensive.
Tickle’s team claimed further damages should be awarded because of Grover’s continued campaign of misgendering of their client and because she laughed at the caricature in a full court room, “exacerbating the embarrassment and stress”.
Hutley said Grover’s laughter in court – described by Bromwich in his judgment as “obviously disingenuous … offensive and belittling” – should be excluded on the basis that it was the fault of Tickle’s counsel for submitting the candle as evidence.
The hearing continues.
