Justice Robert Bromwich said Tickle’s claim of direct gender discrimination failed, but that her claim of “indirect gender identity discrimination” succeeded.
“The indirect discrimination cases succeeded because Ms. Tickle was excluded from the use of the Giggle app because she did not look sufficiently female, according to the respondents,” Justice Bromwich said in handing down the verdict in Sydney.
Grover has been ordered to pay $10,000 in compensation and legal costs—a fraction of the $200,000 claimed by Tickle.
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The judge also found that the meaning of “sex” could change.
“[The respondent’s] 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 court cases established that on its ordinary meaning, sex is changeable.”
The judge said the concept of sex had broadened “especially by reason of the wide scope that now exists for legally changing the sex of a person on official birth records.”
However, the judge also said it was outside his purview to consider “the general nature of biological sex.”
“The science behind that evidence is not, as far as it goes, in dispute. It is just that the issues in this case involve wider issues than biology,” he wrote.
“Ms. Tickle is a legal female, as reflected in her updated birth certificate issued under Queensland law. The discrimination complained of by Ms Tickle is on the basis of gender identity and not sex.”
