When Giggle for Girls app founder Sall Grover burst out laughing in court at a caricature of transgender woman Roxanne Tickle, she couldn’t have imagined it would spark a constitutional battle over the limits of free speech.
That spontaneous laugh has turned the sex discrimination case about female-only spaces into an equally watershed test of whether a joke or insulting remark about trans gender people can be protected speech under law.
In a new submission responding to a cross-appeal filed by Tickle, Grover’s legal team argues that her “momentary, reflexive laugh” in response to political satire was protected by the implied freedom of political communication in the Constitution.
Under cross-examination during the case, Grover was confronted with a piece of crowd-funding merchandise sold online – a scented candle taking a satirical jab at Tickle’s claim that she realised she was a woman because she “hated the smell of balls”.
The “Sweaty Balls” scented soy candle was on sale at $37.30, but her involuntary laugh cost Grover $10,000.
More importantly, Grover’s legal team argues, imposing liability “for expressive conduct during litigation” raises a potentially serious constitutional issue.
“The conduct in question occurred in court, during adversarial proceedings, in response to cross-examination in respect of political satire. The subject of that satire – a basis on which (Tickle) had publicly claimed to be a woman – is at the core of political discourse in this litigation.
“To penalise expressive response to that claim is to burden political communication.”
The satirical candle was sold on the Etsy website, along with other merchandise like T-shirts, with some of the profits going to Grover’s Giggle crowdfund. That candle features a caricature of Tickle and a speech bubble reading: “So, I realised I was a woman because I hate the smell of balls.”
Grover’s legal team says it was intended to mock a statement made by Tickle on the SBS Insight program “to the effect that the realisation of being a woman was due to an aversion to the smell of men’s locker rooms”.