By Paula Gerber
It’s been a case closely watched by the transgender community and legal minds alike. Last week in the Federal Court of Australia, a judge ruled in favour of trans woman Roxanne Tickle in her anti-discrimination case against a social media app.
Much of proceedings have centred around what constitutes a woman under Australian law, and whether someone’s sex can be changed.
Federal Court Justice Robert Bromwich found Tickle was indirectly discriminated against on the basis of her gender identity when she was removed from women-only social media app Giggle for Girls.
But the decision’s ramifications extend far beyond the key players in the case. It’s a landmark decision in favour of protecting the human rights of transgender people nationwide.
What was the case about?
Tickle is a trans woman who was initially allowed to join Giggle for Girls.
Seven months later, that decision was reversed by the app’s founder and chief executive Sally Grover, after she looked at Tickle’s photo and formed the opinion that Tickle was a man.
Tickle then took Giggle for Girls to court, alleging discrimination on the basis of her gender identity: cisgender women were allowed to join Giggle, transgender women were not.
What did the judge find?
In addition to finding Tickle had been indirectly discriminated against on the basis of her gender identity, Justice Bromwich ordered the respondents, Giggle for Girls and Grover, to pay Tickle A$10,000 compensation. This is well short of the $200,000 Tickle was claiming.
The court also ordered the respondents pay Tickle’s legal costs, capped at $50,000.
Tickle had also sought an apology, but the judge declined to order that on the basis it would be “futile and inappropriate to require an inevitably insincere apology to be made”.
Grover may choose to appeal the decision.
Defining ‘sex’
The decision provides much needed clarity around the meaning of “sex”, a word not defined in the Sex Discrimination Act. Importantly, Justice Bromwich stated that “in its contemporary ordinary meaning, sex is changeable”.
He also noted the concept of sex has broadened over the past 30 years, especially as people can change the sex listed on their birth certificates. He said:
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.
The court unequivocally rejected the argument that sex is immutable: that the sex that was presumed and assigned to a person at birth is the sex someone will always be. Justice Bromwich stated:
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.
The court found Grover did not actually know that Tickle was transgender. She excluded her from the app based on her opinion that Tickle was a man. Justice Bromwich stated:
Of course, given Ms Grover’s views, her decision almost certainly would have been the same had she been aware of Ms Tickle’s gender identity. For Ms Grover, there is no legitimate distinction between transgender women and cisgender men.
A cisgender person is someone whose gender identity corresponds with their sex assigned at birth.
This judgement means it’s unlawful for a person to make decisions about whether someone is, or is not, a woman based on the sex that was originally recorded on their birth certificate, or based on how feminine they appear.
It will constitute discrimination if a person is required to have the appearance of a cisgender woman as a prerequisite to accessing a particular service.
Constitutional claim thrown out
It was also argued by Grover and Giggle for Girls that Tickle’s claim of discrimination in breach of the Sex Discrimination Act should fail because that legislation is unconstitutional.
They argued this on the basis that the Commonwealth has no power under the Australian Constitution to make laws relating to anti-discrimination.
This argument was roundly rejected by Justice Bromwich. He found the foreign affairs power in the Constitution authorises the government to enact laws giving effect to Australia’s international treaty obligations.
The Sex Discrimination Act was enacted to give effect to Australia’s obligations under the International Covenant on Civil and Political Rights. Article 26 of the Covenant reads:
[…] the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The judge held the words “other status” include discrimination on the basis of gender identity. Thus, the Sex Discrimination Act, including the amendments made in 2013 to prohibit discrimination based on gender identity, are constitutionally valid.
The judgement in this case provides much needed clarity around the legal recognition of trans women as women. It also better defines the meaning of gender identity discrimination in various sections of the Sex Discrimination Act.
It is a victory not just for Tickle, but for all trans women, who now know with certainty that federal sex discrimination laws protect them as women from discrimination based on their gender identity.
Professor Paula Gerber is a Professor in the Monash University Faculty of Law and an Academic Member of the Castan Centre for Human Rights Law.
This article was originally published in The Conversation. You can read the original article here.