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Sall's X handle - @salltweets
A male named Roxy Tickle, who identifies as a woman, has brought a human rights claim against Sall Grover for not permitting him to use her female-only networking app, Giggle. He initially filed the complaint last year, but withdrew, due to funding reasons. He has now filed again, way out of time and is claiming that by excluding him, Sall is discriminating against him on the basis of his gender identity, which is a protected attribute under the Sex Discrimination Act.
However, Sall actually hasn’t discriminated against him on the basis of gender identity at all, but on the basis of his sex which is also a protected attribute under the Act and in relation to which differential treatment between men and women is not discriminatory where this is necessary to protect or achieve equality for women.
Indeed the Sex Discrimination Act was enacted in 1984 primarily to give effect to the international Convention on the Elimination of Discrimination Against Women(CEDAW), by addressing discrimination and inequality women faced on the basis of sex, for example in relation to biological and reproductive capacities like pregnancy and family responsibilities, in employment, education, facilities and services, and so on.
But then, Julia Gillard’s government made amendments to the Act in 2013, making it unlawful to discriminate against a person on the basis of gender identity. The new amendments also removed the biological definitions of man and woman, and so woman can now include a biological male who has a female gender identity. Sex, and women’s rights and protections on the basis of sex, therefore become meaningless, as does the original intention of the Act. This has left us with a clear conflict between the sex-based rights of women and the rights of those claiming a gender identity.
Not only will this case be the first opportunity we’ve had to resolve this conflict and to test whether sex is still a protected attribute in Australia, but because the Sex Discrimination Act was created pursuant to constitutional powers to legislate regarding international laws, and there is arguably no basis for gender identity protections under international law and certainly not under the Convention the Act was originally meant to give effect to, there is an argument to be made that the current gender identity protections are unconstitutional.
This is huge, because if laws that undermine sex-based rights, such as gender identity protections, are found to be unconstitutional or otherwise unlawful, this could render invalid laws in every state giving effect to protections for gender identity, as these are subsidiary to federal laws. As a result, the sex-based protections for women and girls would be re-instated when it comes to their rights to female-only spaces, services, sports and so on.
Summary
It is all a bit complicated, but essentially, there has been a conflict between anti-discrimination protections for sex and gender identity since the Sex Discrimination Act was amended in 2013. This case is the first opportunity we’ve had to resolve this conflict and to test whether sex is still a protected attribute in Australia. Parliament has arguably acted outside its constitutional powers in legislating gender identity as a protected characteristic in the Sex Discrimination Act which was designed to protect against sex discrimination, as protections for gender identity have no basis in CEDAW or other international instruments.
Details of first hearing
Tickle asked for an extension of time to bring his case against Sall. Sall’s team have asked Tickle to prove that he has the funds to bring his case (competency issue).
Tickle asked for a cost capping order, so that if he loses, there will be a cap on legal costs that he’ll be ordered to cover.
First two issues will be dealt at next hearing on 28 April. Sall’s team have asked that the cost capping be dealt with separately. The reason for this is that her team will be challenging the constitutional validity of gender identity as a protected characteristic under the Sex Discrimination Act, which means all the Attorney Generals of Australia will need to be notified of the proceedings and be given the opportunity to make submissions and possibly even attend the hearing and give evidence. In other words, this case has the potential to be monumental in terms of size and significance.
Judgement from Hearing: April 28 2023
Justice Bromwich has granted leave for Tickle to to bring his case against Sall personally and Giggle for Girls Pty Ltd. Cost capping has been awarded in the sum of $50,000, details of which will be posted soon. The trial date has now been set for April 9, 2024.
Importance of female-only spaces
The importance of single-sex spaces is universally recognised. The fact that we even have them acknowledges the biological sex differences between men and women, women’s inherent physical vulnerability relative to men, and the need to protect women’s rights, safety and privacy. Allowing men to self-identify as women and access women-only spaces, services and activities, has resulted in countless stories of harm all around the world, including in Australia. This ranges from women being excluded from their own sports, to women being sexually attacked in female-only spaces like prisons, refuges and hospital wards, to women being subjected to abuse, loss of employment and legal action for refusing to accept men can be women.
Women and girls have a right to feel safe and to be safe in services, facilities and activities that are intentionally dedicated to them.
Girls should be able to use intimate spaces like bathrooms in school without having to share these with male peers. Women who are detained in a vulnerable environments like a prison should not be locked up with male rapists, like is currently happening in Victoria. Women who are victims of male violence should be able to access a women’s refuge service without having to share these with men claiming to be women. Women and girls of all ages and ability should be able to fairly and safely participate in female-only sport. All organisations need to be legally allowed to say “no” to any male trying to access a part of society set aside for women and girls without the threat of legal action.
Women fought long and for sex-based rights and protections and these must not be displaced by men self-declaring a gender identity, which will then allow them to enter women’s spaces and services that they would have previously been excluded from on the basis of sex.
