(d) Pleadings
41 Ms Tickle's case, as pleaded in her amended statement of claim in aspects that did not change with the amendments, did not clearly or coherently distinguish between direct and indirect discrimination, instead confusing the two. In particular, Ms Tickle pleaded reliance on s 5B(1) (direct discrimination) by reference to being discriminated against "on the basis of her gender identity", rather than the words in s 5B(1) "by reason of" that identity, and then particularised the conduct by reference to an imposed condition, which is a feature of s 5B(2) (indirect discrimination). That is, the terms of the two different forms of discrimination were conflated. The asserted imposed condition is that a person must be a cisgender woman or be determined as having cisgendered female physical characteristics by Ms Grover on review of their photograph.
42 The pleading of indirect discrimination refers to the outcome of not being able to gain ordinary access to the Giggle App by reason of the imposed condition, and to disparaging conclusions and exclusion based on appearance. The requirements of the imposed condition do not truly relate to indirect discrimination, referring to the adoption of a policy of direct discrimination instead.
43 None of these shortcomings were identified by the respondents and no objection was taken to the amended statement of claim until these issues were raised by the Court during closing submissions. When these pleading problems were pointed out in the course of closing submissions, senior counsel for Ms Tickle maintained claims of both direct and indirect discrimination, asserting that these were pleaded in the alternative, but the substance of the case advanced ultimately only really relied upon indirect discrimination.
44 As adverted to earlier in these reasons, the amended statement of claim uses the term cisgender, a word used in the community and in particular in discourse concerning gender identity, but not in the language of the SDA. As noted earlier in these reasons, the term cisgender refers to a person whose gender corresponds to the sex registered for them at birth: Tickle v Giggle No 1 at [11]. That is to be contrasted with a person whose gender does not correspond with their sex as registered at birth, a status commonly described as transgender to reflect that difference, although Ms Tickle's preference is simply to describe herself as a woman without that qualification or explanation. By contrast, the respondents' defence uses the terms "adult male human" and "adult female human", adhering to the sex of a person as registered at birth, disregarding legislative language in the SDA to the contrary, and ignoring recognition of changes to sex pursuant to the Qld BDM Registration Act as a basis for being called female (or male) under the SDA.
45 The respondents object to the use of the terms cisgender and transgender. They anchor all the terminology they use to a person's sex at birth, contending the word "man" can only mean an adult human male, and the word "woman" can only mean an adult human female. They do not accept that this can ever change, contending that biology at birth permanently dictates the language that must be used to describe a person, irrespective of legislative departures from this stance. They assert that s 5 of the SDA, describing sex discrimination, precludes Ms Tickle bringing a case relying upon s 5B, describing gender identity discrimination, an argument to which I will return.
46 Doing the best that I can with the pleadings, given the deficiencies identified above, Ms Tickle alleges that:
(a) a condition was imposed by Giggle, on the instruction, or at the will, of Ms Grover - that is, she primarily makes a claim of indirect discrimination by the imposition of a condition;
(b) the condition was that, to be allowed ordinary access to the Giggle App, a user had to be a cisgendered female, or be determined as having cisgendered female physical characteristics by Ms Grover on a review of the selfie photograph provided by a prospective App user during the process of applying to use the Giggle App - this aspect of Ms Grover reviewing photographs at the registration stage, as opposed to a later review of the AI approvals, is not supported by the evidence;
(c) in breach of s 22 of the SDA, Giggle and/or Ms Grover discriminated against Ms Tickle on the basis of her gender identity by imposing that condition, excluding her from using and assessing the Giggle App which was otherwise available to cisgender women and by not responding to her requests for access;
(d) by the imposed condition, Ms Tickle was treated less favourably than cisgender women because she is a transgender woman - noting that this very pleading seems inherently not just a claim of indirect discrimination, but abandoning a claim of direct discrimination, and also noting that it has to be one or the other (or neither), but cannot be both at the same time as they are mutually exclusive: see Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; 256 FCR 247 at [14]-[16] (Bromberg J, Griffiths and Bromwich JJ agreeing on this point), and the authorities there cited;
(e) imposing that condition constituted a breach of the prohibition of discrimination on the ground of gender identity in s 22 of the SDA, as the condition disadvantaged transgender women because they are not be able to gain ordinary access to the Giggle App and are vulnerable to disparaging conclusions and exclusion based on their appearance;
(f) unlike transgender women, cisgender women would not have their access to the Giggle App restricted, or their claim to be a woman questioned on the basis of their physical appearance by Giggle and/or Ms Grover, and either or both of them would have engaged with cisgender women and responded to their queries regarding exclusion from the Giggle App - again, apparently not advancing a claim of direct discrimination.
47 Ms Tickle points to two requirements that make up the imposed condition she alleges gave rise to indirect discrimination: the requirement that Giggle App users be cisgender women, and the requirement that they appear, on examination of their photograph, to be cisgender women. The difficulty for the first requirement in the indirect discrimination claim is twofold:
(a) it more properly relates to a direct discrimination claim, requiring proof of both the existence and application of a policy of excluding transgender women; and
(b) more importantly, it does not engage with how she was actually removed from being able to use the Giggle App, which was on the examination of her selfie photograph only after she had been granted access.
48 Neither difficulty was averted to by the respondents. That leaves the second requirement, being the true thrust of Ms Tickle's indirect discrimination case, being that the respondents imposed a condition on users, on inspection of their photos by Ms Grover, that they appeared to be cisgender women.
49 The respondents' substantive case, drawn more from their submissions than their pleading which is largely an exercise in blanket denial, is that Ms Tickle was granted ordinary access to the Giggle App via the AI assessment process, and that she was removed from the Giggle App because she was an adult human male, the respondents rejecting altogether the use of the word woman to describe Ms Tickle. All of Ms Tickle's allegations summarised above are flatly denied in that context. Importantly, the respondents deny that they were aware of Ms Tickle's gender identity at the time she was removed from the Giggle App. As will be seen, this would be capable of being a complete answer to Ms Tickle's case of direct discrimination, but does not address Ms Tickle's case of indirect discrimination. To the contrary, as advanced by their pleaded defence and the way in which they ran their case, they have tended to help Ms Tickle to establish indirect discrimination.
50 It is apparent that a key dispute is not one of what has taken place, except on the periphery, but rather one of characterisation, with the respondents essentially taking issue with the very concept of gender identity. They appear to contend that a claim of gender identity discrimination can be answered by asserting that sex discrimination occurred, and that the kind of sex discrimination they engaged in is a special measures exception under s 7D of the SDA. That is manifested in part by the respondents' constitutional challenge to the validity of s 5B (really a challenge to the validity of s 22) as being beyond the legislative power of the Commonwealth, and in part by the interpretation they give to the operation of ss 5 and 5B of the SDA. That challenge, addressed below, is in part a reflection of the respondents having no real answer to the case of indirect discrimination on the undisputed and proven facts.
51 The parties' competing arguments as to the interpretation of ss 5 and 5B, as put in relation to the respondents' objection to competency, were summarised in Tickle v Giggle No 1 at [15]-[17], and noted at [18] to be irreconcilable:
[17] The applicant's response is to agree that for the purposes of s 5 of the SD Act, a person's sex is that of a man or a woman, and it is for that reason that the case is not framed by reference to s 5, noting that there is no barrier to a transgender woman being a woman for the purposes of sex discrimination. Rather, the applicant argues, the case alleges gender discrimination on the basis that the applicant is a transgender woman, not a cisgender woman. The case is instead brought under s 5B because the condition complained about is that it has allowed a transgender woman to be treated less favourably than a cisgender woman. The applicant alleges being removed from the App upon the basis of gender identity as a transgender woman, which does not, on that case, in any way pertain to the treatment of a man.
[18] The difference between the applicant's case and the respondents' case is stark and wholly irreconcilable. One will ultimately be found to be right, and the other wrong. This is not the point at which that determination is to be made unless the applicant's case is manifestly untenable. The arguments for the respondents do not go so far as to convince me that is so, largely because the SD Act deliberately draws a distinction between sex discrimination and gender discrimination, for which the metes and bounds of the latter have not been tested. Nor can they be appropriately tested in the course of a relatively short interlocutory dispute.
52 The respondents' position on that issue was put more cogently and coherently at that interlocutory stage than at trial. Given that deficiency, I presume in their favour that their position remained unchanged in relation to the substantive hearing in this matter. They contend that Ms Tickle's case as pleaded, while purporting to engage the gender identity discrimination jurisdiction in s 5B of the SDA, is really directed to the definition of sex discrimination in s 5, and that the now amended statement of claim conflates sex and gender.
53 The respondents' position remains, as best as I was able to determine given the way in which it was presented, which failed to substantially engage with the real legal issues and facts in this case, that sex refers only to biological features which produce an immutable and binary position of man or woman, while gender identity is directed only to a person's individual identity as characterised by how a person signals their gender to others, referring to behavioural features, psychology and society. I similarly presume that Ms Tickle maintains her agreement with an aspect of that stance, as articulated in her submissions on the respondents' interlocutory notice of objection to competency (which was itself incompetent), being that, for the purposes of s 5 of the SDA, a person's sex is that of a man or a woman. It is for that reason that her case is not framed by reference to s 5, as her sex is now that of a woman. In the same submissions, she noted that there is no barrier to a transgender woman being a woman for the purposes of sex discrimination claims (a point that seems to be correct, but does not require adjudication in these reasons).
54 Ms Tickle's position remains that she alleges gender identity discrimination on the specific basis that she is a transgender woman, and thus a woman. Her case is brought relying upon s 5B of the SDA, not s 5, because the discrimination complained of resulted in her, as a transgender woman, being treated less favourably than a cisgender woman. She alleges that being removed from the Giggle App on the basis of her gender identity as a transgender woman does not in any way pertain to the treatment of a man, which is the concern of s 5. It is therefore necessarily no part of her case that she was discriminated against as or compared to a man, a point of importance when it comes to the role of CEDAW in supporting the gender identity discrimination provisions in the way that she seeks to rely upon them, via the external affairs power in s 51(xxix) of the Constitution.
55 On the proper construction of s 5, the Commissioner submits, and I accept, the following propositions grounded in logic and long-standing authority. First, sex is not confined to being a biological concept referring to whether a person at birth had male or female physical traits, nor confined to being a binary concept, limited to the male or female sex, but rather takes a broader ordinary meaning, informed by its use, including in State and Territory legislation.
56 Secondly, and accordingly, sex can refer to a person being male, female, or another non-binary status and also encompasses the idea that a person's sex can be changed, citing Secretary, Department of Social Security v SRA (1993) 43 FCR 299 at 304-305 (Black CJ), 325 (Lockhart J), and 328 (Heerey J, agreeing with Black CJ and Lockhart J); noting that SRA was cited with approval by the Full Court of the Family Court in Attorney-General (Cth) v Kevin and Jennifer [2003] FamCA 94; 172 FLR 300 at [211]-[224], [374]-[375]; and referring also to AB v Registrar of BDM at [4] (Black CJ, dissenting, though not on this point).
57 Thirdly, for the purposes of the SDA, the determination of the sex of a person may take into account a range of factors, including biological and physical characteristics, legal recognition and how they present themselves and are recognised socially.
58 Fourthly, although the relevant portion of s 5 of the SDA was not altered by the 2013 SDA Amendment, it must be read in context of the changes that were made: Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453, 463 (Brennan CJ, Dawson and Toohey JJ), 479 (McHugh and Gummow JJ); see also the discussion in Thomas Prince and Perry Herzfeld, Interpretation (Thomson Reuters, 2nd ed, 2020) at 296 [11.60] and [11.70]. That is, the amended Act must be treated as a whole, with the text and provisions added and the text and provisions removed being able to have an effect on the meaning of the provisions that have not changed.
59 This accords with principle, noted by all five High Court justices in Commissioner of Stamps as being the modern approach almost 30 years ago. At the federal level this principle was also legislatively expressed in a declaratory way by s 15 of the Acts Interpretation Act 1901 (Cth), noting s 15 was repealed in 2011, and is now s 11B(1). These changes made by the 2013 SDA Amendment do not require the Court to resort to inference or difficult points of construction. The changes were overt and deliberate. They included not just the introduction of the gender identity discrimination provisions, but also the change of all references to "the opposite sex" to "a different sex" and the repeal of the definitions of "man" and "woman" (which had referred to members of the male and female sex, respectively). Those amendments all point forcefully to an understanding of sex, as it is deployed in the SDA, that is changeable and not necessarily binary, contrary to the respondents' submissions.
60 That conclusion is fortified by the 2013 SDA Amendment's Explanatory Memorandum, which emphasises:
These definitions are repealed in order to ensure that 'man' and 'woman' are not interpreted so narrowly as to exclude, for example, a transgender woman from accessing protections from discrimination on the basis of other attributes contained in the SDA.
61 Those observations were not merely aspirational, but accurately reflect the changes to the SDA that were made and therefore supports the interpretation that the Commissioner contends for: cf R v JS [2007] NSWCCA 272; 230 FLR 276 at [143]-[144].
62 I also accept the Commissioner's submission in substance to the effect that I do not need to determine the metes and bounds of the meaning of sex in these reasons. I need go no further than accept, as I do, that it is legally sufficient that Ms Tickle is recorded as female on her updated Queensland birth certificate for her to be, at law, of the female sex. This is in accordance with the Queensland provisions that were in place at the time of the alleged discrimination, being in substance the same in all the other States and the two Territories, with certain differences that do not presently need to be considered (such as New South Wales being the only jurisdiction that still requires sexual reassignment surgery as a requirement to change a person's registered sex): see s 24(4) of the Qld BDM Registration Act. This legislation in Queensland, mirrored in like legislation nationwide, reinforces the view already established by the authorities cited above of SRA, Kevin and Jennifer and AB v Registrar of BDM, that in its contemporary ordinary meaning, sex is changeable.
63 The concept of sex has broadened further over the 30 years since SRA, especially by reason of the wide scope that now exists for legally changing the sex of a person on official birth records. The acceptance that Ms Tickle is correctly described as a woman, reinforcing her gender identity status for the purposes of this proceeding, and therefore for the purposes of bringing her present claim of gender identity discrimination, is legally unimpeachable.
64 The construction of s 5 proposed by the respondents is fundamentally at odds with the text, broader context and purpose of the SDA with the gender identity discrimination provisions added and the other changes made. The respondents' construction of s 5 cannot be accepted. The respondents' contention that Ms Tickle was discriminated against as a man misunderstands the concept of sex in s 5. I therefore reject the argument that her case is incorrectly pleaded as one of gender identity discrimination. I further consider the construction of s 5B later in these reasons, at Part 3(b).