Thread by @tribunaltweets2

Giggle v Tickle Appeal Day 3 (Part 2 second part of morning) 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:

Equality Aus:
Given that the stat is always speaking, what ordinary meaning changes over time.
Re GI, that speaks at the end of designated sex at birth. The text shows designation of sex is a social act, performed by someone on behalf of someone else on the basis of markers.

So, an intersex person may not know they are intersex until later in life when trying to become pregnant.
If sex meant biol at birth, it contains substantial surplusite. ... Correctly construes sex is determined at time of alleged discrimination.

Our 4th prop is that GI... is a much broader concept than sex. GI discrim recog that they experience unique forms of discrimination. There is no reason to believe that one protected attribute ends when one begins.

5th prop it is critical to keep 3 notions separate.
1. burden of proof
2. standard of persuasion re bal of probs
3. matter to be proved. The effect to be assessed of the likelihood of effect of disadvantage... The proper construction of persons must be applied.

Argument that it is deceptive has been dealt with by eg ACCC and other cases.
The comparison cannot be btwn a TW ...
It may be btwn a TW and a female from birth with a female GI.

NH - now has 45 minutes.
We have just heard from Dr Higgins re 5b2.
Your Hon will recall being taken by Winnett to the Expl Mem p375-6 of supp materials. W made various subs saying they were contrary to our argument.
Memo from 30 March 1990 p370 of supp. This is important as

former test was a test of proportionality. The old section 5 is p30 in the same bundle. W observed that the test was being made easier so it must be more likely to catch. The test is described at para 17 at p376. It speaks of disadvantaging the other person cos of his/her sex.

And, not other 'persons'.
Then go to p382, your hons will find a report on the SDA bill Aug 1995, report to senate constut c'tee. Then go to p394, this is a report on prop bill. Pt 1.28 of para ? , shows is likely to have effect of disadvantaging the aggrieved person cos of his

or her sex. ... your hons will see the bill was dealing with the effect of the effect on an aggrieved person. It's highly likely that would have been an actual effect or one that was more likely than not to occur. ... The class was the aggrieved person who was able to come

forward. This has all been changed by committee. Go to p397 where there was a criticism of the proposed new definition (p348?). Discrimination is described due to individual rather than group.... ... Ms Hunter at 1.44 argued it is the complainant's group that IS disadvantaged.

'Persons' came in then rather than his/her or sex. Then re comparator groups, there isn't in effect a base group. What one was concerned with is that in direct discrim there is a true comparator gp. Whereas in indirect, where one is considering disadvantaged persons, who of

those persons? eg all women of a country town? One had to identify the appropriate group. We always accept that one has to identify the group in 5b2 who has the same GI as the aggrieved person. That is not a comparator group. It is a base group of the group of people who

share the same GI as the aggrieved person.
JP - asked for an example so she absolutely understands. I think there is no comp group, rather you look to determ if there is disadvant of aggriev person. Let's say person fem GI as male, ... ?
NH - Yes, as they have the same GI.

JP - asked again.
NH - Yes, compare with those with same protected characteristic.
The base group is defined by the condition. The C'tee adopted the approach of Ms Hunter eg 1.54. That leads to the introduction of 5b2.
The important point is, NO ref to some of the group.

NH - pt 1.44 complainant's group has occurred or is more likely to occur. No suggestion that the group is to be affected merely by the chance that some of them might be disadvantaged.
JK - we are talking about harm. Disad takes one to the condition. Does the condition bear more

heavily on one gp than another.
NH - the word gp is use to designate a group eg of persons. To call it a group, you have created a new analytical interrogation. eg the group is 'worse off'. How one determines is more metaphor than analysis. Other acts have gone to lengths to

deal with this problem. But this was drafted with effect to replace the individual with a multiplicity of individuals. That's why we say it's more likely they will be.
JP - can you explain why Parl would wish to extend this protection in context of the SDA and re CEDAW?

NH - they would want it as they would want to protect people. on the other hand they don't want to focus on mere possibilities.
JP - it was your construction of determining comparator.
NH - it's not vis a vis. He or she with the same characteristic that is more likely to be

NH - The affect is more likely to impact those w same GI.
JP - ... Why would the act afford protection to that circumstance?
NH - ... the only disadvantage we say there is in this case is that the respondent was excluded from the App. We say is that disadvantage more likely or

not fall upon the group of TW. They are the pool of 'persons' is theoretically the world / Australia. These are the base group. Is it more likely or not that TW will be excluded from this App. We say that's the test. There is no notion of some or a portion, as the disad is not

getting into the App. Our construction is entirely how this construction came into being by Parliament. It does not include putting into the words of 'some' etc. We say our construction is wholly consistent with the legislative history as I have just taken your Hons through.

NH - re 4bc, my friend W also went to this eg potential pregnancy, the fact the woman is likely or is perceived as being likely to become pregnant. Your hons will see that it is the fact that the woman MAY be capable. If there is a chance, it is really no different to (a).

NH - there is a distinctly different meaning if it is LIKELY. ? We say the aim is protective but not to subject people to the very serious finding of having been in engaged in discrimination on basis of one or more of these criteria.

NH - re 7d2, what we submit is that the natural and ordinary meaning of a sequence in that form with the word OR, is to exclude all of those operative provisions from any special measures under 1. The intro of AND would not be normal grammar... The classic argument would be you

NH - you only discriminate under one of them. So, OR is the ordinary grammatical meaning, not AND.
There has been no construction case in the history of English law where you could have done it better. This is a very efficient drafting device. The class of potential protected

NH - categories as they expand. This drafting is a convenient way of cataloguing.
My learned friend also took your Hons to Chelcho? which is in the Commissioner's bundle. ... the drafting of that legislation was so woeful that J Murphy (eg re who you got approval for in Melb

NH - ferry service), p29 of AHRC pagination. Refers to cf decision of high court had the words 'as the case may be' which made clear that was the intended operation, eg a step he took to make it work?
p30 or p12 in report, about at pt 4: this gives to the defn a sensible meaning

that should be given to the almost unintelligible Act of Parliament. We say, this principle is not an everyday application, to say that Parl was relying on this principle of 7d2 simply passes belief. We say they chose an efficient grammatical form that is clear. We say it is

NH - it is perfectly sensible. ... The question is the extent of the departure. When there is, not a lot of assistance can be granted from the purposes as to the extent.
JP - said she didn't have details as didnt have super human powers.
NH - Your Hons task is how far there has

NH - there has been a departure and it is circular for your hons to determine the correction.

NH - in effect, it can't be the purpose to allow a special measure to advance the equality of women and men that has the result of the indirect discrim of 5b2 to allow re GI. Our response is why not?
Take the reln btwn a special measure for the subst equality of women.

Depends on the ends sought to be achieved by the creator of that measure. Purpose is formed through consideration of what they want to do. If it is a protected one, that could be (and we say if purpose is to protect biol women) you will of necessity if you have some effect on

persons of GI as they are various, temporal, and not attached to sex etc. eg people can come to be effected by these measures not at time of their creation...
We submit it can't have been Parl's intention for protected measure for women to be embarrassed by the intro of GI prots.

And can't imagine reverse. eg take an example of GI. If that GI is attached to a sex eg a TW but the purpose for eg GI special measure is to protect TW. Will immediately be challengable under s5 by construction. eg someone could complain that they are excluded on grounds of sex.

NH - Take eg yest of special measure of gym for women. A man could come along and say I have a cisgender GI. That disadvantages me and all other with my GI, and therefore the measure is bad. That follows logically from the position advanced by the SDAC. Huge blowback.

NH - you might get substantial equality... If I set up the gym, a gay man may come and say "I am adversely affected by that and people like me are too."
JP - I think you've been making the same point for a long time. ... I've asked for an efficient use of the time.

NH - referring to the intro of the new measures indicated otherwise than simply adding two new measures eg GI and ISex.
The structure was already in place.
Lastly, s33 of the original Act referred to by learned friends: said it was equiv to words referred to 'in each case',

NH - with respect, they are not. It is with respect to the structure of the legislation.
Lastly, 5b1b and c, re GI. This case is not concerned with these. only 5b1a as if one goes to pleading in the case and the way His Hon dealt with it and look at the 5b1 case, the case plead

NH - was by reason of her GI and not by reason of a characteristic or by an imputed characteristic. That's how His Hon dealt with it. (not by reference to more erudite questions raised here)

NH - Ms W also said you can get around all the problems by constructing purposes, attributing purposes in relation to all the special measures. Whereas, purposes are not something you can 'backfill' in a way that are destructive of the purposes of the legislation.

Court is temp adjourned with livestream directed by JP to stay live.

GC - missed some. The respondents embraced the exclusion. It was put squarely that this was an App that excluded TW as they are not women and special measure in d1a allowed them to do so.
NH - objection you are not allowed to reply on the facts.
JP - to respond to matters raised

NH - it should be re my reply on the legal submissions and not a reply on the appeal. That was the basis on which this was done.
JP - but you were given a fair degree of liberty.
NH - I replied strictly within the rules of law.
GC - I am replying in relation to NH replies today.

JP - there was ref made to the pleadings re s5a by NH. GC - He said there wasn't a pleaded case re gendered discrim. para 38
JP - conferred w colleagues.
GC - para 38 of our pleading re s5b2, in breach of s22 of the Act, ... it is likely to continue to disad TW as denied access.

JP - point now made.
GC - NH construction of s5b2 arose in context that intervenors made subs around' discordance'. This discord is the cause of discrim. Indirect: impact on TW due to the effect of the discord experienced by people with GI.

The requirement to look like women, does not remove... (technical difficulties) ... It is not nec to find a comparator.. The condition itself is a requirement that someone's appearance accords with their sex at birth. eg the users of App must have consistent appearance.

GC - so it is direct discrim.
Re CEDAW protecting TWs, we draw your attention to the amendment to the SDA in s 4 which changed the meaning of relevant international instrument (If you look at s41 SDA, pdf 107, p107.) means article 26 of ICCPR (in same bundle p1415 tab 199) and

'all persons are equal before the law..."
J Bromw did refer to this. There is no need to just protect women. It is not mutually exclusive to also protect persons of GI.
Those are the subs for RT.

JP - Court will reserve its decision.
May I thank for all the work etc... and the court is deeply appreciative of that assistance.

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