- Date:
- 23 June 2026
The Full Federal Court has handed down a landmark decision on when a person will be found to have directly discriminated against someone on the basis of their gender identity under the Sex Discrimination Act 1984 (Cth) (SD Act).
In Giggle for Girls Pty Ltd v Tickle [2026] FCAFC 64(opens in a new window), the Full Court of the Federal Court (Perry, Abraham and Kennett JJ) found that Giggle for Girls and its CEO, Sally Grover, directly discriminated against Roxanne Tickle, a transgender woman, when it removed and subsequently did not re-admit her to using the app 'Giggle for Girls'.
Summary of decision
Giggle was a social networking app that was marketed as a digital, women-only safe space. To verify a user's sex, Giggle relied on facial-recognition software which purported to assess a user's physical characteristics in order to determine if they were a cisgendered female, or appeared to have the physical characteristics of a cisgendered female. Giggle determined that Ms Tickle did not possess the physical characteristics of a cisgendered female, leading to her being denied use of, and eventually access to, the app.
At first instance, the Federal Court (Bromwich J) found that Giggle and its CEO indirectly discriminated against Ms Tickle on the basis of her gender identity by imposing a condition of use on the app that excluded all people who were of male sex at birth. This included transgender women who possessed the physical characteristics that the app defined as not those of a cisgender female. This condition had effect of disadvantaging transgender women who did not meet that condition.
On appeal, Giggle and Ms Grover alleged there was no unlawful discrimination under the SD Act. They submitted that the decision at first instance was incorrect to define 'sex' for purposes of the SD Act as not being a purely binary concept, and also erred in not finding that the imposed condition of use was 'reasonable in the circumstances' and therefore would not amount to indirect discrimination.
Ms Tickle cross-appealed the decision at first instance, alleging that Bromwich J erred in not finding that Ms Tickle's exclusion from the app constituted direct discrimination; that the damages awarded were inadequate; and that the overall outcome was "manifestly inadequate … including by reference to the general standards prevailing in the community".
Justice Perry found that Giggle and Ms Grover directly discriminated against Ms Tickle on the basis of her gender identity because:
- knowledge of a person being transgender is not a necessary element in establishing direct discrimination under sections 5B(1)(b) or (c) of the SD Act, as requiring this knowledge could have the effect of enabling a person to discriminate against a person who is transgender by simply asserting that they had no knowledge of the protected attribute
- in terms of determining whether Ms Tickle was treated 'less favourably' in the circumstances, it was appropriate to compare the situation to that experienced by a 'cisgender woman' in the same circumstances. This was important in the context of the wider aims of the SD Act because "a comparison between a transgender woman and cisgender man in a case such as the present would, in effect, re-enact that discrimination and invalidate the gender identity and/or gender presentation of a transgender woman. Such an approach is in tension with the protective purposes of the SD Act in relation to gender-diverse people" (at [140])
- the manual review of Ms Tickle's uploaded image by Ms Grover in any event constituted direct discrimination, as Ms Grover removed Ms Tickle from the app based on her perception of Ms Tickle's appearance as a cisgender man, despite being aware of her self-identification as a transgender women through communications between themselves.
In a joint judgment, Justices Abraham and Kennett also found that Ms Tickle had been treated less favourably than a cisgendered woman would have been in the same circumstances, by reason of perceived characteristics that Giggle and Ms Grover assigned wholly to belonging only to cisgendered males. Their Honours also found that:
- Ms Grover was motivated to exclude Ms Tickle from the app because despite Ms Tickle presenting as female in the photo she uploaded, Ms Grover concluded that her characteristics were that of a transgender woman, which was the basis upon which she was excluded
- the purported 'condition' was no more than a "decision-making tool for facilitating the exclusion of a category of persons that did not come within Ms Grover's conception of women" (at [288]); and
- there was aggravating conduct on behalf of Ms Grover outside of the initial matter, through her public commentary on the proceedings and the 'campaign' against Ms Tickle, which they accepted caused Ms Tickle to suffer additional harm.
The Full Federal Court ultimately made orders that Giggle and its CEO had directly discriminated against Ms Tickle (within the meaning of section 5B of the SD Act) in the provision of goods and services by:
- excluding Ms Tickle from accessing the app on the basis of gender-related appearance
- refusing to restore her access on the basis of gender-related appearance
- treating Ms Tickle (as a transgender woman) less favourably than a person designated as female at birth in seeking access to the app.
The Full Federal Court also increased the damages payable to Ms Tickle to $20,000, and ordered Giggle and its CEO pay Ms Tickle's legal costs up to $100,000.
Broader context
There were a number of interveners in this matter, including:
- the Sex Discrimination Commissioner, who was granted leave at first instance to appear as an amicus curiae and make submissions relevant on matters of statutory construction
- the Lesbian Action Group, who was granted leave to intervene at the appeal on the basis that its interests would be prejudiced if it were not permitted to appear and make submissions
- Equality Australia, who was granted leave to intervene at the appeal as it was accepted by the Court that it had a useful and different perspective to offer on this issue.
This also follows a landmark UK Supreme Court decision in April 2025, which found that the legal definitions of 'man', 'woman' and 'sex' for the purpose of the Equality Act 2010 (UK) - which provides similar protections to Australian anti-discrimination legislation - are based on biological sex, and that the definition of a 'woman' does not include a transgender woman.
Closer to home, both Angus Taylor and Matt Canavan have suggested that if successful at the next election, the Coalition will introduce legislation to amend the SD Act to introduce a definition of 'biological sex' (noting that the SD Act currently does not define 'man' or 'woman').
Key takeaways
Discrimination on the basis of gender identity is protected under the Equal Opportunity Act 2010 (Vic) (EO Act) and the SD Act, both of which apply to employers in the Victorian public sector.
Employers should now be aware that the relevant 'comparator' for a transgender woman in a gender identity discrimination claim under the SD Act is to a cisgender female.
Employers should also:
- be mindful that transgender employees are protected from discrimination under the SD Act, and that excluding someone because they are transgender can amount to direct discrimination under the SD Act
- give careful consideration to any 'women only' initiatives (noting that employers can still apply to VCAT for an exemption under the EO Act)
- review their workplace policies and practices, so that references to a person's sex by reference to their physical appearance are avoided.
This article was prepared with assistance from Maddison Brown-Graham (Law Graduate).