A landmark gender-versus-sex test case is underway in Australia where a trans-identified male has brought legal action against the founder of a female-only social networking app after being barred from using the platform.
Roxanne Tickle, a biological male who identifies as a woman, is suing Giggle app owner Sall Grover alleging unlawful discrimination under the Australian Human Rights Commission Act, reports the Daily Mail. Tickle was removed from Giggle in 2021 by Grover on the grounds of being male. Giggle was created for the purpose of giving women and girls an online space to gather away from the presence of males.
In order to gain access to the app, users must first upload a photograph of themselves, and "bio-metric gender verification software" then determines the sex of the person. In 2021, Tickle had successfully made it past the AI technology but was ejected after a manual check by Grover.
Grover says at the time she didn’t know Tickle was transgender, but instead saw a photograph of a person she believed was a man.
Grover’s legal team argues that Australia’s Sex Discrimination Act was made constitutionally invalid after gender identity was added as a protected characteristic in 2013 and the definitions of man and woman were removed.
According to the Daily Mail, Grover’s counsel will argue those amendments go against the Conventions on the Elimination of All Forms of Violence Against Women (CEDAW), which resulted in the Sex Discrimination Act being created.
This is the second time Tickle has filed legal action against Giggle. Last July, the trans-identified male filed a human rights complaint that resulted in Grover being served Federal Court documents in October, but Tickle withdrew the claim before it went to court.
However, Tickle filed a new lawsuit in December after reportedly feeling "increasingly uncomfortable" with statements Grover made on Twitter and in media interviews.
Tickle’s Giggle application included a letter from Tickle’s physician confirming that Tickle had a female gender and stated that a birth certificate had been reissued to reflect this.
"I am legally permitted to identify as female," said Tickle in the application.
Tickle is seeking damages, a written apology from Grover, and access to the female-only platform.
Grover’s legal team says there is a clear conflict between the sex-based rights of women and girls and the rights of males who claim to have a female gender identity.
The team argues that Tickle was not discriminated against on the basis of gender identity but rather on the basis of sex, which is a form of discrimination still permitted under the Act when it is considered necessary to protect women and girls.
The first hearing of the case took place on Feb 18, when Justice Robert Bromwich noted there were likely to be "strongly held opposing views."
Rachael Wong, CEO of Women’s Forum Australia, believes this case is an opportunity to resolve the conflict between sex and gender protections in law, and will be the test to determine whether sex is 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," Wong told the Daily Mail.
"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," she added.
Holly Lawford-Smith, Associate Professor in Political Philosophy at the University of Melbourne, thinks this case will bring clarity to the confusion surrounding the interaction between sex and gender in law. She said the Sex Discrimination Act protected transgender people from being discriminated against because 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," Lawford told the Daily Mail.
"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," she went on.
Lawford-Smith says 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."
"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," explained Lawford-Smith. "Hopefully the courts will take the opportunity to address this bizarre and untenable situation."
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