To what extent does the Sex Discrimination Act (Act) protect a person from discrimination on the basis of their gender identity? It is a question that has taken centre stage in the Federal Court recently. In the matter of Tickle v Giggle for Girls Pty Ltd, a transgender woman commenced proceedings launched court action against a women’s only platform and its CEO, for allegedly being blocked from the app due to her gender identity.
The case is significant because it is the first time since the Act was amended in 2013 that the changes are being tested in court.
Section 22 of the Act states that it is unlawful for a person to discriminate against another person on the ground of the other person’s “sex, sexual orientation, gender identity, intersex status …”. Gender identity is also referenced in Section 5B of the Act.
Despite the seemingly wide ambit, “sex” is not defined in the legislation.
The respondents, Giggle for Girls, claim that the app constitutes a “special measure” designed to achieve substantive equality between men and women and the app’s exclusion of males is reasonable in the circumstances. That is, the exclusion of males from the app fell within the exceptions under sections 7N, 7D and 32 of the Act.
Given what is at stake, there is a lot of public interest in the outcome of the case. The Federal Court has the difficult task of interpreting the law and ruling on the question of what is a “woman”?
Source: Tickle v Giggle: What is the difference between gender and gender identity? – Law Society Journal
The biological differences between the sexes is a scientific and biological fact, and gender identity is not