Thread by @tribunaltweets2

Day 2, part 2: 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…

Back after lunch. NH responds to GC suggestion about new arguments being put. 7D1a is the grounds relied upon. Bromwitch constructed the case as indirect discrimination which meant SG's team's case was not explored in detail. It was a special measure - as was argued.

NH Purpose of the special measure for the Giggle App and seeking to achieve substantial equality for women. Judge Abraham clarified substantial equality is between men and women. NH referred to authorities case law where some women don't wish to access both sex gyms.

NH explained that women are deterred from participating in social interactions on the internet with men. The objective of the app was to allow women to freely participate. This is to achieve substantive equality.

NH discusses affidavits which addressed the question that Giggle was reasonably and appropriately adapted to the purpose. Their honours must look at the entirety of the material which Bromwich did not. 7D can be a purpose to advance a section to the relevant class of people.

NH - Transgender women who do not meet the criteria of operation are excluded. This is accepted. The moment one allows for a class one allows for exclusion. Some women are excluded that is inherent to the whole exercise. Adaptation is not to the point.

NH alternative sections of the SDA could have been relied upon however 7D not 7B was relied upon. 7D is special measures (?). RT Counsel McDermott suggestion that adaptation of terms of entry to allow transgender women access misunderstands the purpose of special measures.

NH explains that it is perfectly permissible to discriminate against other categories under the special measures section of the SDA. An attempt to discriminate is consistent with the purpose of the Act.

NH rebutts Ms Costello's morning argument about the case run by SG's legal team before Bromwich. Reject the characterisation of GC's morning statements as not what was found by Bromwich. Referred to a number of examples.

NH the applicant was required to satisfy the requirements of 5B2 which came as a neccessary part of paragraph 32?. SG team maintain that denial. GC took their honours to paragraphs in the Bromwich judgement about a key dispute - the issue of gender identity & sex.

NH explains that Bromwich found the condition was needing to appear to be a cisgender woman in photographs and that transgender woman would be disadvantaged under this condition. Tickle was excluded and that demonstrated satisfaction of the test.

NH in any event handed up two pages of transcript of the submissions of Ms Nolan which dealt with the condition and the dispute between the parties about it.

NH turn to the cross appeal of the Tickle team. TUrn to the SDA - Section 5b - the purpose... if by reason the agreed persons gender identity. One can't discriminate against a person by reason of their gender identity we say unless you know it. One must be aware...

NH That's got to be THE reason that you treat the aggrieved person less favorably than - that's the point. The next point is that you act by reason of a characteristic that is generally imputed to persons that have that same characteristic.

NH Missed a bit. As Bromwich found SG had no knowledge of Tickle's gender identity it can't satisfy this test as THE reason. References to long hair and the T-shirt. Judge Perry interjected - and the name - NH clarified that no the name was not available.

His Honour found that the responded was excluded in all likely hood by SG reacting to the photograph and concluding that the respondent was a male. The selfie was provided, if your honours look at that the only finding was that SG looked at the image and formed the view that..

NH it was about the image not any characteristic generally related to gender identity. His honour was wholly correct to reject a finding of direct discrimination as the test for direct discrimination was not met.

NH His Honour looked at this and considered it in detail over many paragraphs in his honours reasons. NH asked their honours to take a moment to read through Bromwich's reasons for finding indirect discrimination.

NH all this taking place in a context where the evidence was as your honours will see at 127 where this organization was seeking to review thousands of selfies every day. Perry interjected between 50 and thousands per day. NH agreed precisely.

NH states Ms Costello didn't ask SG any questions about this matter. She left it on the email exchange documents.NH says Ms Costello's reference to the name of the respondent, the emails and the discordance of that with the photograph she should have cross examined.

Judge Kennett queried why it was on Ms Costello to cross examine Sall Grover about the selfie approval process. NH explained that in the context of many thousands of selfie approvals each day many more questions should have been put to SG.

Discussion about SG's evidence - no recollection of emails just viewing the selfie. Justice Kennett pressed point about why Ms Costello needed to cross examine. NT explained no questions about what was in Sall's mind at the time. Not in response to Tickle's affidavit.

Judge Perry pressed point in relation to case law about why Ms Costello wasn't required to x examine. NT responded that SG's decision-making process at the time needed exploration to be able to make a finding of Onus on GC to prove characteristic being discriminated against.

NT referenced test in the sex discrimination act you have to be disadvantaging someone of the same comparator gender identity by reason of that characteristic. The characteristic is appearing male. Perry discussed Roxie's hair length and dress.

Judge Perry referred again to Roxie's appearance. NT reminded that the SDA refers to the characteristic of someone with a gender identity do they generally look like males? Judge Kennett referred to SG's evidence about her non recollection of Tickle's attempt to join Giggle.

Kennett talked about looking at the photograph and calling her dad to say a man has tried to get access to Giggle. Judge Perry called for nuance in understanding why things are or aren't put to the respondent. NT agreed but said the section of the SDA has requirements.

NT asked what are the characteristics related to those with a gender identity which RT's team refer to: hair, top, cut of the top, face. Bromwich gave these matters detailed consideration. Indirect discrimination was the result as indirect discrimination is easier to prove.

NT turns to damages. Bromwich referred to remedies and damages at paragraph 205 - 277 - this was an exhaustive analysis of every one of the matters which are agitated before your honours in fact with one exception in relation to aggravated damages and community standards

NT dismisses RT's legal team's attack on Bromwich's thorough analysis of the damages required. NT agreed that Bromwich's reference to community standards was a stand out where in his reasons he was acutely aware of community understanding of the importance of this debate.

NT discussed SG's reflexive response to the photograph of the sweaty balls candle and Bromwich's decision in relation to this reaction. Despite the laughter in court Bromwich explained that RT's claim to distress, exhaustion and hurt feelings was only moderate.

NT continued to discuss what Bromwich has ordered in relation to damages and RT legal team's argument about higher damages. Judge Perry queried if further conduct by SG had been considered. NT advised no.

NT discussed in the world of damages his honour had considered the facts in great detail and made a synthesis and formed a judgement. Nothing has been raised that would allow the appeal court to change this decision of Bromwich in the initial case. No error has been committed.

NT discussed SG's laughter in response to Ms Costello's sweaty balls cross exam with the sweaty balls candle a crude matter. Judge Perry asserted SG made the candle. NT corrected Perry's misunderstanding - sweaty balls candle was made by an SG supporter. Giggling is involuntary.

Judges asked to be taken to the evidence on the sweaty balls candle to understand evidence Justice Bromwich was presented with. Transcript shows Ms Costello for her own purposes chose to take SG to the sweaty balls candle and read out the words "sweaty balls candle"

Judge Perry explained it is hard for the court to review the evidence that Justice Bromwich received as they were not there. NT explained that he raises the evidence to demonstrate that Ms Costello aggravated the conducted.

Judge Abraham explained that SG had seen the sweaty balls soy candle previously. NT agreed that was the case but that nonetheless Ms Costello had the choice to do so. But you can't then complain if the witness involuntarily laughed.

Judge Perry gave a hypothetical example if on cross examination a witness gave a stream of scorn against Ms Tickle. JT said that a laugh is a totally different thing to a tirade or matter of scorn. SG also apologised after she laughed. Not aggravating conduct.

NH said in his respectful submission stating that laughing is aggrevating conduct is highly novel and oppressive. Justice Kennett clarified that NH is presenting this argument in the context of the cross appeal and NH is calling for a reduction in the damages.

Georgina Costello reply on a cross appeal. Mr Hutley has said nothing in response to our cross appeal in relation to the non readmission.

SC for the Sex Discrimination Commissioner talking about considerations for the case, special measures, indirect and direct discrimination and different species and scope of the term women. Consider relevance of section 7b. Sex Discrimination Commissioner to intervene

SC asks if their honours have bundle of materials provided. Theme 1: Gender Identity Discrimination under section 5b. 11 propositions and overall conclusions. 1. Act is beneficial and remedial legislation. To eliminate discrimination on prescribed grounds whereever possible.

Authority in bundle on Western Australian case page 13, paragraph 24 dealing with a different statute the context is the case of legislation which protects human rights which is the same here. Statutory purpose must be considered.

2nd proposition around statutory construction and requiring missed it sorry.

Referencing various case law in bundle. Substantial evidence that discrimination against transgender people occurs in the community, it occurs in various areas of public life is highly damaging and legislation should seek to produce attitudinal change in Australia.

Sex Discrim SC people may not identify as male and female. It is often the discord between the person's sex defined at birth and their gender identity which causes the discrimination. Recognises that a person's sex and gender may not necessarily be the same.

SDA SC references the serious disadvantage members of the LGBTQIA+ community experience in society and advice from the Australian Human Rights Commission in its report on addressing SOGI discrimination - trans and intersex participants have unique challenges at work.

GI persons at work can be placed on a male ward as the health professionals see him as male. No info provided as to the sex or gender identity of the case study in the AHRC report. Suffering faced by TGD people is harmful and parliament aimed to address this.

SC for AHRC: Statutory text of gender identity - 2 parts - subjective or intrinsic identity - section 4. 2nd component outward manifestation to the world. Perceived identity: appearance, mannerism or other gender related characteristics.

SC for AHRC discussed definition of gender identity further and the potential for overlap between sex and gender identity. May be a link or perceived link between a persons gender and their designated sex at birth.

AHRC SC: Examples of gender identity - a broad set of gender identities are encompassed by this definition e.g. female, female/different assigned sex at birth - transgender, subset of A, being female, presently identifying as female - cis gender.

Further definitions which are hard to follow. Judge Perry asked for clarification. A GI could be labelled as transgender another possible GI conception is they have a gender expression that is intentioned with their physical characteristics or appearance.

AHRC SC: Comparator in relation to sections in the SDA must be a gender identity different to didn't catch Judge Kennett asked who the comparator is and asked if a number of different gender identities could be affected by a requirement for service is the question disadvantage?

AHRC SC Discrimination could be in relation to intrinsic sense of self, i.e. animus or policy against trans people. E.g. an employer might refuse to employ a transgender man - this would be direct discrimination.

AHRC SC the comparator in this workplace example above would be someone who wasn't trans i.e. the identity alligns with the sex at birth.

AHRC SC gave example of a transwoman seeking access to a swimming pool and that this would be discrimination because those who discriminated against the transwoman would not be recognising their self conceived gender identity.

AHRC SC gave further examples of in the swimming pool change room example which then became a man - not sure if this was a biological man or a trans man - i.e. a woman. Sorry - got confused.

AHRC SC concluded the analysis of statutory purpose was to prevent the invalidation experience as parliament took note of this. Namely - the experience of people whose gender identity does not allign with others perception of their physical sex.

AHRC SC stressed that in most circumstances in public life we just don't know what the gender identity is of the alleged victim and therefore the alleged discriminator must not deny awareness of the gender identity as a defence. This wasn't the purpose of parliament

AHRC SC by reason of characteristics for GI for those generally thought to be female in the change room example, where there is no discord between the gender identity and physical presentation of sex this is discrimination.

AHRC SC Discussion Section 5B does require a comparator. Reference to bundle case study an indirect discrimination claim, paragraph 170, the court said the relevant comparator is not between women & men. You identify the person's GI and look for disadvantage & compare with GI.

AHRC SC unpacks further comparator selection considering a range of factors including how the person defines their own GI and how the discriminator identifies the "victims" GI. Judge Perry seeks reference.

AHRC SC discussed possible requirement to consider "likely" to cause disadvantage. The Commissioner says that likely isn't the right term and that a meaning needs to be selected on the spectrum of meaning which is most apt to the context.

Commissioner calls for a liberal interpretation so as not to limit the opportunities for TGD people to prove disadvantage. Is disadvantage probably or a real chance? Better reading of what likely must mean in that context.

AHRC SC: Potential Pregnancy includes a reference to a woman who is or may be capable of become pregnant or wish to become pregnant. In this context likely is more than a mere possibility. Discussion of sexual harrassment and how statutory construction applies.

AHRC SC: Commissioner applies a test for indirect sex discrimination making the burden for a complainant less difficult to achieve. The test was amended in 1995 to assist complainants to prove indirect discrimination. Parliament intended to reduce burden.

AHRC SC: References paragraph 258, red pagination 153 concerns section of the racial discrimination act where the language is reasonably likely, this is relevant to the SDA and the meaning of likely. Reference other cases around the meaning of likely and the word reasonably.

AHRC SC: Responding to NH argument yesterday about a minimum number of persons disadvantaged, rejected this argument because of the commissioner's interpretation of the sex discrimination act. Only some persons in the class, the authorities are not prescriptive. Hickey & Hunt

Hickey & Hunt case relevant and referred to by SG's team, AHRC SC says that although no statistical data was produced at the hearing it is women who generally work on a part-time basis. There is no blanket rule about a proportion of the class affected or disadvantaged.

Another case referenced where disabled people were disadvantaged and yet in that case the Justice found that no proportion of the affected class applied.

AHRC SC discussing role of special measures under the Act. Commissioner states that special measures cannot be right under the act that people with different gender identities can be compared with men and women. It must be an advantaged and disadvantaged parties.

AHRC SC puts commissioners' position that special measures can be used between men and women but can't be used as a treatment to address gender identity. Support this argument by reference to text and purpose of legislation. Commissioner says structural inequality is against TGD

AHRC SC refers to structural inequality between men and women with the characteristic in relation to sex and the purpose of the SDA in this area is to equalise that structural inequality. Discuss other sections in relation to disadvantage, and other "heads of discrimination"

AHRC SC refers to these heads of discrimination which must all be considered when thinking about all the different sections of the SDA and when special measures can be used or not used. SC claims the construction is deliberate.

AHRC SC rebuts NH arguments yesterday and this morning. Refers to another case. Outlines Commissioners view on various interpretations of the SDA which is against SG's SC NH.

We're done! 10am tomorrow. @threadreaderapp