Nine months after hearing the appeal, the Federal Court held that a woman, Sall Grover, had directly discriminated against Roxy Tickle, a person “designated” male at birth but with a female gender identity, when she removed Tickle from an app called Giggle for Girls.
Grover was ordered to pay damages of $20,000 for Tickle’s hurt feelings including aggravated damages for “misgendering” Tickle during the trial by using a male rather than female pronoun. The Federal Court said all it was doing was applying the law, but was it?
If special leave to appeal to the High Court of Australia is granted, four matters may be of interest:
Was the Federal Court wrong to hold that the “ordinary meaning” of woman includes a person such as Tickle? Why did the court adopt the contested terminology of one litigant rather than use the terminology in the Sex Discrimination Act (Cth)? Did the court misapply the SDA when finding that Grover had directly discriminated against a protected group, of which Tickle is a member, by assuming all such persons have “male facial features” and all persons born female have “female facial features”? As Grover had a genuine belief that only persons born female could be women, was it wrong for the court to increase the damages because Grover “misgendered” Tickle?
One is left with the impression that the court bent over backwards to achieve a particular outcome. The adage “hard cases make bad law” is apt in this case.
Source: Sall Grover ordered to pay $20k in Giggle for Girls discrimination case | The Australian