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Sall's X handle - @salltweets

A male named Roxy Tickle, who identifies as a woman, has brought a human rights claim against Sall Grover for not permitting him to use her female-only networking app, Giggle. He initially filed the complaint last year, but withdrew, due to funding reasons. He has now filed again, way out of time and is claiming that by excluding him, Sall is discriminating against him on the basis of his gender identity, which is a protected attribute under the Sex Discrimination Act.

However, Sall actually hasn’t discriminated against him on the basis of gender identity at all, but on the basis of his sex which is also a protected attribute under the Act and in relation to which differential treatment between men and women is not discriminatory where this is necessary to protect or achieve equality for women.

Indeed the Sex Discrimination Act was enacted in 1984 primarily to give effect to the international Convention on the Elimination of Discrimination Against Women(CEDAW), by addressing discrimination and inequality women faced on the basis of sex, for example in relation to biological and reproductive capacities like pregnancy and family responsibilities, in employment, education, facilities and services, and so on.

But then, Julia Gillard’s government made amendments to the Act in 2013, making it unlawful to discriminate against a person on the basis of gender identity. The new amendments also removed the biological definitions of man and woman, and so woman can now include a biological male who has a female gender identity. Sex, and women’s rights and protections on the basis of sex, therefore become meaningless, as does the original intention of the Act. This has left us with a clear conflict between the sex-based rights of women and the rights of those claiming a gender identity.

Not only will this case be the first opportunity we’ve had to resolve this conflict and to test whether sex is still a protected attribute in Australia, but because the Sex Discrimination Act was created pursuant to constitutional powers to legislate regarding international laws, and there is arguably no basis for gender identity protections under international law and certainly not under the Convention the Act was originally meant to give effect to, there is an argument to be made that the current gender identity protections are unconstitutional.

This is huge, because if laws that undermine sex-based rights, such as gender identity protections, are found to be unconstitutional or otherwise unlawful, this could render invalid laws in every state giving effect to protections for gender identity, as these are subsidiary to federal laws. As a result, the sex-based protections for women and girls would be re-instated when it comes to their rights to female-only spaces, services, sports and so on.

Summary

It is all a bit complicated, but essentially, there has been a conflict between anti-discrimination protections for sex and gender identity since the Sex Discrimination Act was amended in 2013. This case is the first opportunity we’ve had to resolve this conflict and to test whether sex is still a protected attribute in Australia. Parliament has arguably acted outside its constitutional powers in legislating gender identity as a protected characteristic in the Sex Discrimination Act which was designed to protect against sex discrimination, as protections for gender identity have no basis in CEDAW or other international instruments.

Details of first hearing

Tickle asked for an extension of time to bring his case against Sall. Sall’s team have asked Tickle to prove that he has the funds to bring his case (competency issue).

Tickle asked for a cost capping order, so that if he loses, there will be a cap on legal costs that he’ll be ordered to cover.

First two issues will be dealt at next hearing on 28 April. Sall’s team have...