Giggle v Tickle appeal Monday morning part 2. (Opening remarks missed but seems the new ground will be dealt with “as they come to it”). GC some arguments no longer pressed (missed which ones).
NH we propose to look at the history of various provisions. Then proceed to appeal grounds: namely, the question of gender identity, the true meaning in the Act of the word sex, and woman, and man. Section 7d and b and section 5(??) of the Act. Then deal with appeal grounds 1-3
Ground 2 largely dealt with in earlier arguments on construction. JP is the argument that if you win on ground 2 you win? NH section 7d, we submit, operates if there is a special measure to take relevantly my client’s behaviour out of the purview of all of 5-7a, esp 5b.
Which JB rejected. Reading of 7(a???) doesn’t require that it operates for all women. Only a section of women. We understand that is accepted by the Commissioner. We do not know if it is accepted by the respondent. The section of those persons who are women could be represented
(Missed argument). Sthg about who is considered a woman for the purpose of the Act. To the extent that ‘woman’ is related to the meaning of the word ‘sex’ which in one view of JB’s judgment it appears to be, then we have to deal with that.
(Sthg about ground 2). The position we have taken is little different to the position taken by the Lesbian Action Group. You may not need to get to it (to what? not entirely clear).
Lastly we would deal with grounds 1-3 esp 2. Second stage where we deal with the construction argument that is how we propose to proceed. The matter arises from a relatively limited factual matrix. Identifies the appellants: giggle is the first.
The primary judge in para 95 of his reasons (p. 320 behind core 11 ??). in the passage quoted JB said SG described her vision for the app as follows… (ref to transcript of earlier judgment). As your honours know access to the app was restricted to users who based on a profile
Image appeared to be female. The second appellant was found to have removed one user (the current respondent) from the app on the perception of maleness. JP ? (Or JA?) did his honour find it was removed by SG? NH JB found that.
NH at trial the claim succeeded under 5b(2) of SDA, primary judge concluding that the giggle app imposed a condition (12b of the judgment) requiring users who “have the appearance of a cisgender woman”. JB found that this disadvantaged those with a gender identity of woman
And thus breached the SDA. Para 131 of the judgment, p. 328. At this early stage 3 features: 1/ finding of indirect discrimination made in absence of any evidence was in the relevant conditions in terms found by JB. 2/ assuming the condition was made as primary judge found,
It was made in the absence of evidence of disadvantage being imposed on the protected group referred to in 5b2. No undertaking was made to identify that group with precision or at all. No evidence was provided that persons sharing that protected attribute were excluded
Or on the alternative construction, not a remote possibility of that. The question will arise concerning what members of the group…. JB concluded an infringement of 5b2 on basis of respondents experience because this was all that there was evidence of
3/ JB rejected appellant’s reliance on section 7d which provides for measures to ensure addressing discrimination. JB view that 7a (???) could not (section missed due to livestream glitch)
NH could J take up the combined authorities list ? (Ref to where to locate this). JP I have a copy of the act and 2013 amendment. JK and JA asked for bundle and section numbers respectively.
NH start with objects in section 3. Objects of Act to give effect to certain provisions of CEDAW. The convention is a schedule to the act and has been at all times since 1984. Objects also refer to various bases in constitution and other relevant international instruments.
Objects to combat discrimination and promote recognition of the principle of equality between men and women. NH refers to a bundle of authorities including act as originally enacted with various materials and amendments along the way. (Supplementary bundle SDA 1984).
Refers J to various locations in the bundle. J having difficulty accessing electronically (lack of hyperlinks). Hiatus while they find it.
NH going back to the Act in current form, in section 4 interpretation, various definitions, some of which will be relevant. You will find in the print authorities bundle p. 5 definition of gender identity, next page is definition of intersex status. p 9 sexual orientation
Then section 4b which deals with potential pregnancy : refers to the fact (4B[c]) the woman is likely or perceived as being likely to become pregnant. We will refer back. Then articles that go to 7A. The heads of discrimination. Sex, SO (5a), Gi (5b), intersex (5c), then
Marital and relationship, pregnancy, breastfeeding and (missed). Distinction between direct discrimination (on basis on GI) picked up in operative sections 22. 5B ‘by reason of’. 5B(1) discriminator ‘by reason of’ treating person less favourably than the comparator class
That direct discrimination was not found but x-appeal seeks that finding here. Moving on to indirect if the discriminator proposes measures or conditions that has the effect of disadvantaging persons with same gender identity.
The section has the effect subject to 7b and 7d. There is no suggestion that these are a defence to an action for breach. They are part of the exercise of analysis. 7b. Only applies to indirect disc. In effect says a person does not discriminate by imposing a condition
That is likely to have disadvantaging effect if the condition is reasonable. Matters involved in deciding whether a condition is reasonable include the particular disadvantage and means of mitigating it. 7c imposes burden of proof on the actor. 7d says a person may take special
Measures for the purpose of achieving substantive equality between mentioned groups. Subsection 2, not discrimination if taking special measures authorised by subsection 1. (Appears in chapeau to 7d1).
History of 7d. Introduced in 1995 to replace former section 33, which had treated special measures as exempt in different structural way. special measures fall outside the statutory provisions of discrimination. 1995 implemented article 4(1) of CEDAW.
Adoption by states of temporary measures to achieve equality between men and women shall not constitute discrimination. If the purpose of achieving equality is present then the measure is excluded from discrimination. The only relevant aspect is purpose
Decision of justice crennan (sp?) in this court dealt with this matter. In agreed combined list at tab 86, p. 545. J still having difficulty finding. Lack of hyperlinks. NH in your honours hands as to how….. (hiatus while J searching)
JP this need not delay you. Decision in Jacombe (sp?) and clerical and administrative services union. Issue as to whether mandating 50% men and 50% women in positions was a special measure under the Act. Her honour found not a special measure for all women but a section of women
The section of women were women applying to be members of that union. NH historical development. Replacement of section 33 of 1984 act. (back to finding the material referenced with page and para numbers - another hiatus). Comment JK “it’s a pretty old act”.
JP if you refer to sthg and I have not been able to open it then tell me what it says. NH I will read it. (More discussion of location of item). 33 “nothing in division 1 or 2 renders it unlawful the purpose of which is to ensure that persons of a particular sex or marital status
Thread lost… following on discussion re para 33 of 1984 act. Part of NH words missed. Structurally if one met one of the purposes the act did not relevantly apply to others. That is the ordinary meaning of that section.
JP we must also consider purpose but what concerns me is that you have just addressed text. NH mentioned application of the treaty. JP that is a very broad and general purpose. Q re construction that if one purpose is met then disc not applying to other protected groups.
NH the effective and only consistent interpretation of the language is that if you meet *one* of the purposes then you are removed from having to apply the others because otherwise the concept of special measures ineffective
JP but why would we construe the act in that way? You are giving special measures very heightened significance: if you promote one group then the impact, even terrible consequences, on other groups don’t matter.
NH … there is necessarily compromise. JP as high court has told us, we need to look for a construction that is harmonious and consistent. You appear to have introduced an inconsistency, that one group’s interest can be advanced to the detriment of those of other groups.
JP special measures that advance one group without detriment to others need to be found. NH refers back to jacombe union case. If every single category has to be addressed then that special measure would certainly have failed if someone with a GI came forward
NH in other words the problem is, the moment you have special measures under 7d, they apply not only to section 1 but also subsection 2. Once one realises the implications and the breadth of categories covered in new act, such as JB has found and antithetical to original intent
Of act…. Render special measures inoperable. JP can you shed light on caselaw re equivalent provisions? e.g. race discrimination. NH no cases that have confronted this problem. JP surely there are cases in the racial disc act? NH ref high court measures for one group
…’of aborigines’ [sic] accepted even if not advantageous to all aborigines [sic]. NH sthg on incoherence of special measures if 7d truncated practically. It is central to appreciate that 7d removes the effect of the act not only under section 1
NH almost any special measure targeted at one group may well involve discrimination against another group mentioned in the act. In 1995 section 7d was introduced. 2nd reading speech in supplementary bundle of authorities p. 357. Extrinsic bundle
Introduction of structure which is 7d, the purpose. (Again time taken to find the ref). We say that explanation confirms that 7d was to perform a protective and enabling function not a restrictive one. JP do you want us to read that now? NH yes if convenient (time for reading)
The same proposition was reiterated in senate committee report on 1995 bill. no need to read them now but essentially the concept. The explanation confirmed that 7d was protective and enabling not restrictive. Measures to overcome structural discrimination not unlawful but
But to achieve the objects of the act. A special measure *will exclude someone*, necessarily, because otherwise it is not special. Therefore saying someone will be adversely affect diverts from the purpose of 7D 1(a).
In 2011 a series of amendments expanded the protections and to do so, broadened the constitutional foundations. Before, CEDAW was the basis. That amending legislation is in supp. Bundle at 545.
The 2011 amendments did not alter the structure, text or function of 7d which at the time did not go beyond the applications mandated by CEDAW. simply added extra heads of protection in form they appear in 7d(1). JB applied a finding of distributive effect
NH on to 2013 amendments. Introduced 3 new protected attributes, SO (5a), GI (5b) and intersex (5c). Supp bundle p 725, second reading speech of then AG Dreyfus of march (date?). the amendments did not repeal or alter existing ground under section 5 nor did it reframe 7d beyond
Adding new sub paras for new protected classes. In 744 in supp bundle. Items 45-47 explanation. 5 a b and c also made subject to 7 b and 7 c. 7d amended to include new heads of discrimination.
NH sections 14 to 20, you will see that sets out what is unlawful by way of disc. They interrelate with 5-7a. Stretches up into division 2. Note education at sect 21. And subsection 3. Exception in relation to education where the education is single sex. always present since 1984
Except ‘opposite’ in 1984 changed to ‘different’ in 2013. Subsection 3 of (didn’t catch section number) similar provision. Section 30 certain disc not unlawful. Same form as original act.
JP again, ‘different’ rather than ‘opposite’ sex. NH this is the only amendment to those sections since 1984. Also section 31, ‘nothing in division 1 or 2 renders it unlawful to discrminate against a man on the grounds of his sex’ (refs to pregnancy childbirth & breastfeeding)
Section 38 education institutions for religious purposes. Has been changed to deal with new categories of disc, 39 also (voluntary bodies). NH second topic construction arguments
Definition of GI: the act definition is cumulative and bounded by internal criteria: not related to all appearances etc but only those that are ‘gender related’. We argue that descriptor qualifies the rest. what matters is the personal dimension of the characteristic.
Ref to supp bundle p 739 paras 10-13. What we say on the true construction of this act (ref section 5) is that it protects people who have a GI from disadvantageous acts either section 1 or subsection 2 (purposive or effect). JP what do you mean by that?
To merely act disadvantageously to someone because of a mannerism is *only* disadvantageous if it relates to a GI. There is nothing wrong with acting adverse to a person who does not have a GI to which the act is directed.
Important to keep that distinction in mind at all times. JK how does that sit with 5b1. NH if by reason of a characteristic generally imputed to persons of the same GI as the aggrieved person. *Only* in relation to the GI
If the characteristic does not reflect a GI common to the group then no disc. JK so if you disc against someone because of their hair colour unless characteristic of persons with the same GI. NH yes. JK not sure where this is going.
NH important because of a shift from a characteristic to GI. so the characteristic has to be related directly to GI. Referred to justice turner referring to ‘cisgender’ woman. Which (words to the effect of this muddies the waters)
JP would it not be applicable to transgender people who have difficulty ‘passing’ in a way cisgender people would not. NH I am dealing with purposive interpretation. JP plain English please in relation to the scenario I have described
JP discordance between how an individual may identify and their gender presentation. NH until one knows what discordance one is talking about. JP physical appearance obviously. When one looks at the concept of GI what we have to do is find a way in which under this act
We can give a harmonious construction under 5b1 relating to the definition of GI. It seems to me that the discordance between how one presents and is perceived and how one identifies. NH if a person is treated adversely due to a discordance between appearance and GI, because
…you would know the person’s GI and would be conscious of the discordance. Your honour is talking about the reason for acting. Let us assume there is an apparent disconnection between outward appearance and GI, but for it to be disc, it would have to be common characteristic
NH if someone assumes your characteristics are discordant with your GI and they are not. JP I have to think about this. Disc law does not operate in a naturally intuitive manner. If someone is reacting on the basis of their concept of what a ciswoman looks like, would that not be
A situation that the legislation is directed towards. NH I hope I am making my point clear. JP imo nothing is clear in discrimination law and points to the difficulty of finding an appropriate comparator. NH subsection 2 calls for no comparator
And that absence of comparator was ignored by JB in original judgement. 1984 act contained a comparator in subsection 2 but now does not. NH there is no comparator identified in 5b2. There is a class of which you are a member but no comparator
JP do you have an authority that addresses this issue? NH no and this case throws up a unique set of problems. JP so you say there has been no consideration of this provision in SDA or analogous provisions? NH. That is what I am saying
NH 7d. Each of 5 to 7a are made subject to 7d. If you go to 7d, you will see that 7d1 (a-f) identifies a range of potential subjects of special measures. We submit subsection 2 is perfectly general. A person does not disc against persons by taking special measures authorised
In subsection 1. There is no funnelling (direct relationship mandated) between any one of them. It is wholly general. It is important to note that this section applies to both direct and indirect disc. A measure for one of the categories may well have an indirect effect for
Another category if the measure is applied for a relevant purpose. The risk of that is both obvious and if respondent lawyers are right on meaning of ‘likely’, even more obvious. (Will come back to this.)
NH they would say that the indirect effect of a measure in favour of women is to disadvantage persons of a particular GI, SO or even marital status, so on JB’s construction that cannot be a special measure. We say that leads to utter incoherence
One of the lesser examples. e.g. a hospital might establish a quiet room for breastfeeding mothers only. That could be a measure. JP but special measures are inherently temporary. NH cultural views with respect to breastfeeding may be changing
But breastfeeding could cause embarrassment to some. JP not a temporary measure. NH referred back to the union case as a temporary measure for equality for women. A person with a GI of which there are many could say it likely has an effect on him or her (let us say him).
Then that would be discriminatory. JP is not the disc on the basis of an arbitrary characteristic. But the special measures it is not arbitrary. That is the foundation of disc law - basis of an arbitrary characteristic outside someone’s control
NH the person I am positing with a GI, the putative special measure is likely to disadvantage this person who has a GI. Who is looking to the effect or ‘likely’ effect. Therefore the provision provided by justice crennan could today be considered discriminatory.
JP that is why special measures are a carve out. The crennan decision was to advance women, not people with a special GI. But through a distributive construction that would fail as a general measure. But when one goes to 7d
7d has always been that once you have a special measure it will disadvantage some people because it is special but it is a compromise in the legislation. In the union example the man with a GI may feel hard done by. JP you’ve made the point let’s move on
NH once that is appreciated, the construction of 7d is consistent with the language, with the history, and achieves the aim of special measures being able to realistically operate.
Submission on behalf of commissioner paras 33-37, this would permit ‘invidious discriminatory purposes to be advanced’. It is always dangerous to test such legislation by unlikely extreme examples conceived to throw a problem
If you go to paras 34 and 64-5 of Jacombe (union case), such an invidious purpose might speak to whether the measure was adapted to the purpose advanced. But that would be a factual enquiry. The commissioner used the example of a Womens leadership program
That excludes pregnant women or lesbians. JP but on your argument that may be to advance the interests of a subgroup. Doesn’t that highlight a practical issue. What if your purpose is in part to disadvantage one group not merely advantage another
NH, we still have to answer the question in 7d. The example is far fetched but if the purpose is to achieve substantial equality between men and women. If there is a real and substantial purpose to meet a real and substantial need
JP where your argument might break down: you are conflating consequential disadvantage with altruistic purpose. On its face that may satisfy special measures, but if your measures include the purpose of disadvantaging another group then why would the act allow that
JP how do you define purpose? NH has to be defined by its appropriateness in real world circumstances. JP but if one of your purposes is actively to disadvantage another protected group (under 5b for example) why would the act say that’s ok.
NH as I say it is a compromise. JP back to purpose: the section must be construed in a way that promotes the overall purposes of the act. JP if the purposes include (NH sthg totally malevolent) JP yes.
JP I am trying to get to the bottom of purpose, i fear you are conflating purpose and disadvantage. Why should an impermissible purpose be excluded from consideration of the special measure? NH in that case a factual enquiry would be need to determine whether the measure achieved
Substantive equality. In subsection 3 the possibility of ‘other purposes’ are considered as long as the objective is achieving substantive equality. JP so you are saying that special measures in 7d can include what would otherwise be unlawful discrimination.
JP so your construction is a broad open ended one. NH if the purpose is substantive. JP we will now adjourn until 2pm. @threadreaderapp please unroll
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