Thread by @tribunaltweets2

These are the Tribunal tweets for Federal Court case NSD1386/2024 Giggle for Girls & Anor v Roxanne Tickle. Heard by Full Bench of Australian Federal Court 4-7 August 2025. Livestreamed here. .
Justices Perry, Kennett and Abraham presiding (JP, JK, JA)youtube.com/live/ru6pc2tGK…

Giggle v Tickle appeal Monday afternoon part 3

NH Turning to 5b. 5b 1 deals with the act of a discriminator by reason of the purpose of the alleged discriminatory. Concerned with subsection 2. Deals with the act or behaviour of the discriminator that has the effect of disadvantaging the person from their GI.

Provision that is likely to have effect of disadvantaging person. Work 'likely' is considered under many contexts. Eg refers to examples. A range of possible meanings. Our submission is likely means more probably or not.

Our respondent refers to likely as a real chance.

Refers to Racial Discrimination act.
JP is your point about inclusion of the word reasonably?
NH provides copies. Section 18(c).
It says it is unlawful for a person to do an act that is reasonably unlikely to offend, insult etc.

NH a construction that leads to a mere likelihood of offending persons with a GI.
There is no facility with S 5 to deal with the likelihood of dealing with a subset of the group. All persons or if not how many.

JP our task is to find meaning within it.
How does the balance of probabilities effect it?
NH its a criterion that looks to affecting the preponderance of persons with a GI

NH does likely mean a balance of probability?
JK persons that are likely to be affected
JP is it a real chance that adding the preponderance of persons will change it?

JP do you have support for this construction?
NH case law says usual meaning of likely means balance of probabilities. then we have no other case that throws up the problem raised by these words

JP there might be a real chance a preponderance of persons will be affected?
NH if there is a real chance it would be difficult to prove. We say that just saying it means a real chance doesn't address the difficulty
does it mean all persons but it just says persons.

JP isn't it an argument that persons means some or all?
Either construction is equally tenable.
NH we submit that some or all isn't available.

JP we are required to interpret an act according to the purpose of the act.
NH A mere chance means if there were two other people in the world who might be affected. You can trivialise the meaning.

JP Discrimination law doesn't work in that way.
NH There is no comparator
JP How do you work out how someone is disadvantaged if there is no comparator

NH There is no need for a comparator.
JP is the comparator bw one tg person with another tg person?
NH is the posited condition that disadvantaged the claimant, would it be likely to disadvantage another person with the same GI

JP Person who identifies as a man you would look to compare it with a man. Doesn't sound like sex discrimination.

Disagreement between how the Act operates.
NH persons with the same GI. Problem is how many? Better meaning would be balance of probabilities.

NH turn to meaning of man and woman.
Definition was repealed in 2013? In 1984 woman means a member of the female sex irrespective of age. There has never been a definition of sex in the Act.

NH explanation of the repeal. It was intended that the ordinary meaning of man and woman would be taken. We argue the definition in the Act reflected the ordinary meaning.

NH reliance has been placed upon this repeal of the definition.
IN 2013 woman was intended to include transwoman.

NH Case law in the SRA (?) Finding the reference.
Decision in 1993 what is the meaning of man and woman is affected by the purpose of the legislation.

NH usage in relation to the word sex.
JK is there a particular part you want to highlight?
NH Judge Lockhart in the report. Reference is made to woman and female as synonymous. Has view on what those terms meant in 1993. Factual finding as the understanding of the day.

NH Its a matter for this court to determine the ordinary meaning of the terms.
Determining the ordinary meaning was in reference to legislation. Didn't refer to the dictionary.
This case was in context of various legislative meanings. There was a deliberate decision

in taking out the definitions that what would occur was the ordinary meaning.
NH argues it meant there was no change to the meaning of sex.

JP Use of different and opposite were qualifiers. The Parliament intended there would be a different meaning by changing the qualifiers.
NH the reference to intersex meant there were no qualifiers to the meaning of sex

NH the reason for the change from opposite to different was (refers to pages) Para 27.
JP Ensuring the provisions were consistent with introduction of GI and Intersex. Was it then intended the word would no longer have a binary meaning.

NH refers to second reading by Mr Dreyfus.
Intersex is a biology not a GI. The provisions do not create a third sex by any mean. They were not intending to change the meaning of sex from the binary.

NH All the provisions re discrimination. There was not any intention to change the meanings of other references to sex.
JP References to intersex did not intend to add another sex. Did not intend to narrowly define sex so as not to exclude transgender women

NH Definitions in the bill include the change from opposite to different.
Better view is to refer to what they don't say. They dont include a radical rewriting of the all the protections in regard to sex

NH IF 2013 changed the meaning of sex from binary. That would deprive transmen (natal women) of many of the protections of the Act.
eg section 7 refers to woman. If TW means woman. Then TM would be considered men and lose the protections related to women.

NH All the exceptions to the protections would alter if they were changed by the change from opposite to different. Would be surprising if this Act deprives people from protections

NH Intention was to protect people with GI, people with intersex status.
JP Re S 7. Protections in regard to breastfeeding etc. Could Parliament have intended the meaning of woman to be clear.
Why would specific provisions determine the meaning more generally of the term woman?

JP Have to interpret words not to exclude people from protections.
NH Accept that can have different meanings. But was this the intent of parliament?
JP Trying to determine what was the intent of Parliament

NH There is nothing in the materials that shows there was an intention to change the meanings of man and woman
JP How does this help with this appeal?

JP Have to conclude that S 7d was to advance all women.
NH If 7d 1a has to be for all women, have to conclude only applies to natal women.
JP You mean at birth was deemed to be a woman

NH Macquarie Dictionary definition of a woman. A female human being. Female by reference to birthing young etc. Evidence that ordinary meaning of the word remains what is was in 1994.

JP There will be a close analysis of the ordinary meaning.
NH There was no investigation of the ordinary meaning as appears in dictionaries.

NH Changes focus. Primary judge makes findings about the respondent and their history.
Describes the process by which the respondent was excluded from the App.
Found second appellant had no knowledge of the respondents GI

Not an issue that the App did not require users to prove they were female. Appellant did not go beyond the visual inspection of the 'selfie'.

Central to proving discrimination is a purely factual step.
Judgement was that cisfemale was a requirement.
Appellant did not require this. Judgement was contrary to the facts.

NH use of term cisgender in reasoning of the original judgement. Cisgender means female as registered at birth. Appellant based judgement on appearance as a female.

JP Wasn't his honour saying that the requirement of the selfie was that a person appeared to be cisgender and female at birth.
Users weren't required to provide a birth certificate. There was a reason for requiring the selfie. Looking to see if someone was born a female

NH looking to inform the reasoning of his honour. Reads from judgement.
First ground is that assumptions about transgender women were unexamined.
JP His honour has inferred the selfie is looking for female at birth

JP The act is concerned to address the possibility of people being discriminated against because of their gender presentation.
NH Concerned about the question of fact. Only condition that was applied was to determine if user was female.

NH Did this exclusion have an effect on other transgender people? But was only based on appearance so would not disadvantage other TW.
That issue wasn't investigated during the judgment.

NH Did the condition disadvantage TW or was it 'likely' to disadvantage TW?
NH No such exercise was engaged in. This is mandated by the Act s 5?

NH Concept of comparators diverted his honour from a proper enquiry. Ref to judgement. The exercise miscarried.

NH Special measures. Made submissions in this respect. The Giggle app was designed to provide a secure space for women. By reference to appearing as female.
JP What was the purpose of appearing female?

JP This is critical. Evidence of SG that App was meant to be a women only safe space. Did she want it to be a space for those who looked like women or for women who were born women?

JP What did she mean by women?
NH People she judged looked like women.
JP Having different discussions about what it meant. Did she mean appearance or born female?

NH Still comes under the special measures.
JP Can't rely a finding for one purpose and then disavow it for others. What was meant by the criteria she applied.

NH Evidence is in her affidavit. C 54 to 56. What we say is the intention or purpose was achieving substantive equality. The purpose was implemented through the App. The gatekeeper condition was appearing as a female. To share resources etc free from the male gaze

NH Concerned about disadvantages in the digital space experienced by women. Evidence from 14 witnesses
Set the parameters to ensure that female faces that were more masculine would get through the AI.

JP did she at any point explain what she meant by women.
NH She used a visual explanation of what women
JP Is there something in her evidence of what she meant?

NH conditions of entry to the App. Said 'you must be female'
JP Is it accurate to infer from that the reference to females were women who were born as females and remained as such in their identification

NH Evidence that people who were born female but no longer identified as such were allowed in the App
JP Wasn't his honour allowed to infer that women who were born female were only allowed on the App based on appearance?

JP No just the criterion but the purpose?
NH Intended that females were allowed on the App.
JP One thing to apply criteria, thats a tool.

NH Means used were central to the operation of the App. Intended to allow people who were natal females, wasn't the purpose.
A permissible purpose for a special measure.
JP to create something for people who looked like women

NH In a digital world cant examine everything.
JP You are content that the purpose of the App was to apply to people who were born women and the criteria was designed to determine that.

NH A special measure doesn't have to be for all women. The purpose was to set that up, to create a safe space where women could communicate with one another free of the presence of men. Affidavits re the conditions confronting women, abuse etc.

Women deterred from participating in the digital world due to trolling or harrassment from men. My clients purpose was to produce a service to create a space where women felt space. Not all women but for those who needed the space.

NH Affidavit from a woman seeking a safe place. Shared info re intimate matters until male people intruded with images etc that deterred her participation.
Other examples of finding Giggle a safe space until men intruded.

NH Other examples including a rape survivor, only participates in female only settings. Male presence upsetting.
Giggle created a protective support structure for women.

NH The App was a special measure allowing women to participate freely in the digital space.
Other affidavits from lesbian participants. Male intrusion into lesbian only events. Other refer to religious barriers, female only App only way to engage online

NH cites other evidence showing that the App was able to meet a need to advance equality in the online space and that was the purpose in setting it up.
The effect was to exclude women with male features.

that doesn't gainsay the purpose of the app and doesn't gainsay the real world purpose to meet the aims of section 7d.
Its unfortunate that certain people couldn't use it or get onto the App

NH Uncontested evidence that there was a real need for this special measure.
The court should find that you can have a subsection or class. This is the sort of measure that should apply.

Its a special measure due to the deplorable behaviour of men on the internet. So there can be no discrimination under the Act.
NH Gone over time. Will revise plan

JP What about the question of reasonableness?
NH S 5b is always subject to 7b. If its reasonable there is always no discrimination.
We bear the onus to establish reasonableness.

NH We have set out how we deal with the criteria. Your honours will see that is redolent in relation to the special measure.
We say if we are not a special measure, what we did was reasonable.

JP Refers to the judgement, respondent didn't make the case at that time.
NH It was always an issue and needs to be dealt with.
JP Difficult for his honour to deal with this when it wasn't raised in the original case

NH Finalises his submissions.

GC or BG begins their submission
Say this appeal must be dismissed. His honour was correct in saying sex was changeable.

Sex is not confined to being a biological concept. Sex in the SDA is not confined to being a binary concept. Our primary judge correctly found that the determination of a persons sex may take into account a range of factors including legal and presentation etc.

A real review of the evidence that under the SDA RT was a woman when she was joined the app and when she was excluded. Use of the female name, GRA surgery. She sees her self as a woman, legal status, her outward expression of female appearance in her clothing and hair.

RT joined the app, sent a selfie in a female top, female haircut. She presented her GI to the world and the Giggle app as a woman, her identity is as a woman and a TW. The ordinary meaning of women bears its ordinary meaning is orthodox.

Case law in an immigration case was that parent has an ordinary meaning. The court looks at the way it is understood in society. Its an evaluative process where you look at the facts and in this case RT is a woman.

Trial judge did not find that RT is a biological woman. She was born a male and her status as a female is legally unimpeachable.

The question of reasonableness. We cannot disagree with JP. There was no argument presented on this basis at the original trial.

There is no appealable error on this point. The appellants did not address this issue.
It was only in the closing submissions that it was raised.

JP It may be helpful tomorrow to show how it wasn't fairly raised. The High court says it cant be opened on appeal.
GC The amended notice of appeal does not seek leave to raise a new ground on appeal. In circumstances on which this matter wasn't raised before.

GC It would be prejudicial to run this ground. I can continue on this matter in the morning.
JP adjourned until 10 am tomorrow morning.

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