Case In Point

A social media app built exclusively for women uses facial recognition to screen its users. When a transgender woman is kicked off, she takes the company to federal court.

In this episode, we unpack the case that's forcing Australia to answer a contentious question: who counts as a woman under the law?

Case:
Giggle for Girls Pty Ltd v Tickle [2026] FCAFC 64

Guest:
Paula Gerber, Professor of Law, Monash University

Hosts:
Melissa Castan, Professor of Law, Monash University
James Pattison

Further Reading:

Creators and Guests

Host
James Pattison
Creator of Miniature Podcasts.

What is Case In Point?

Courtroom dramas told by the people who know them best. A MINIATURE PODCAST.

James Pattison:

Melissa, I have a question for you. What do you think of when I say the words giggle?

Melissa Castan:

It brings it brings you to my mind, James. You you make me giggle.

James Pattison:

You're not smiling, so I feel your response is somewhat forced. What about the word tickle?

Melissa Castan:

Okay. I don't think of you in that context. Maybe we'll put that to the side.

James Pattison:

These two words, giggle and tickle. They're they're very there's some levity in these two words. They sound very fun. They sound a little bit sort of light and and silly, but the truth is you put these two words together and and they're not.

Melissa Castan:

The case we've got today is neither tickly nor giggly. It's actually a legal battle that's been running for years.

James Pattison:

And the parties who are involved, this is the name of the parties, okay? There's Tickle, Roxanne Tickle, and Giggle, which is, or was an app, Giggle for girls. It was a social media app for women.

Melissa Castan:

We're talking about it because in May 2026, the federal court handed down a decision and it's got people talking, including politicians lining up to weigh in on the issues underlying this case.

James Pattison:

As politicians and others have over at least the last decade or so about this particular topic. So what does the judgement actually say? Why does it matter? What is it? Who?

James Pattison:

A giggle and tickle. We are talking to the right person about this case. It's Paula Gerber. She's the author of Sex, Gender and Identity Trans Rights in Australia. She has literally written the book about this topic and she is a professor of law at Monash University.

James Pattison:

So the person to walk us through this case. Paula Gerber, welcome to Case In Point.

Paula Gerber:

Thanks for having me.

Melissa Castan:

Paula, it's 2021 and Roxanne Tickle tries to log on to the website called Giggle for Girls. What happens?

Paula Gerber:

Well, let's start with who Roxanne Tickle is. She's a trans woman from Queensland. She's had gender reassignment surgery, gender affirming surgery. She has a Queensland birth certificate that says she's a woman. She tries to join Giggle for Girls app, which is described as a women's only online space.

Paula Gerber:

And part of that onboarding process is that you upload a selfie. And she did that, and the selfie was reviewed by AI. And AI said, this is a woman and let her in. Seven months later, she discovers that she's not in anymore and she can't get in. And so she contacts Salva Grover, the CEO and founder of Giggle for Girls app and said, I don't know what's happened.

Paula Gerber:

I can't get in. And in the end, she's not readmitted. And the evidence that comes out later is that Salva Grover was looking through all the photos of the people who had joined Giggle for Girls app, looked at this one, says that's a man, and kicked out Roxanne Tickle. She did it in, you know, a nanosecond, made a quick instantaneous decision based on the appearance of Roxanne Tickle. And, and from there, we ended up in the courts.

James Pattison:

I wanna go back to the app because I I always want good business ideas. What what what exactly was Giggle set up for?

Paula Gerber:

It's not a dating app. It is a connection app that where women can find other women that they can talk to about fitness, health, maybe find a flatmate, just social connection. And remember in COVID times, and so this was just about finding other women online that shared your interest and who you could connect with.

James Pattison:

So what's in a situation like this, what's the usual course of action?

Paula Gerber:

Well, law is always and going to court should always be a last resort. And so the first thing that happens, if you can't just resolve it through negotiations between the parties, is you can take a complaint to the Australian Human Rights Commission, which is what Roxanne Tickle did because she couldn't get any responses from the Giggle for Girls app and said, look, I think I've been discriminated against on the basis of my gender identity. And I'd like to try and work this out. And I'd like you to help me do that. And that's one of the roles of the Australian Human Rights Commission is that they hold conciliations and they try and get the parties together and and see if through good faith negotiations, a resolution can be reached.

Paula Gerber:

That that wasn't possible in this case. And given that Roxanne Tickle did believe she'd been discriminated against because she's a trans woman, she did commence proceedings in the Federal Court to have that issue determined.

Melissa Castan:

And then how did the Federal Court address this? What's the legal framework that the Federal Court uses to try and work out a problem like this one?

Paula Gerber:

Well, legal framework is the Sex Discrimination Act, which is federal legislation that was enacted in 1984. It give effect to some of Australia's international law obligations, including CEDAW, the Convention on the Elimination of Discrimination Against Women. And this is what we do in Australia. We ratify an international treaty and then we have to incorporate it into our domestic law. So we ratified the Convention on the Elimination of Race Discrimination, we enact the Race Discrimination Act, we ratified the Convention on the Rights of People with Disabilities and we enact the Disability Discrimination Act.

Paula Gerber:

We ratified the CEDAW and we enacted the Sex Discrimination Act. But of course we need to keep it contemporary. We need it to keep it fit for purpose in the modern age. So in 2013, it underwent some amendments and those amendments included adding in sections to that not only prohibited discrimination on the basis of sex against women, but also prohibited discrimination on the basis of sexual orientation, the basis of gender identity and on the basis of intersex status. So it was designed to become more inclusive and more in line with a contemporary Australia.

Paula Gerber:

And part of that it also removed the definitions of man and woman and it changed the language. Instead of referring to opposite sex, it changed that to refer to different sex, which was recognition that we're not in this binary of only male and female, we have non binary gender diverse people and we have intersex people. And so we needed to have more inclusive language.

Melissa Castan:

So the federal parliament in 2010 and all the politicians that sit in that parliament looked at this Act and said it needs to be amended in these ways to address what our contemporary understandings are. And that's the Act then that the federal judge looks at and evaluates the claim of discrimination and the approach that was taken by the Giggle4Girls app and the CEO.

Paula Gerber:

That's right. So they have a trial in 2024 and evidence is admitted as to why Sal Grover made the decision she did to exclude Roxanne Tickle from the app. And the judge made a decision which really didn't satisfy either party. The decision was that there had been indirect discrimination rather than direct discrimination and compensation of $10,000 was awarded to Roxanne Tickle.

James Pattison:

What did we find out about what was happening behind the scenes at Giggle and some of their thought processes that they had around why they booted Tickle from the platform?

Paula Gerber:

It certainly came out during the trial that Sail Grover does not believe that a person can change their sex and does not accept that Roxanne Tickle is a woman. And we know that because, and this is part of the reason that the award of damages was increased on appeal from $10,000 to $20,000 was that the Court of Appeal said, look, was belittling and insulting and when presented with a caricature that was not complimentary of Roxanne Tickle in the witness stand, she laughed, referred to in the judgment as a laughing incident. And so it became that this wasn't just a a mistake. This wasn't just an innocent, you know, misjudgment of who this person was given that she was going through all these photos so quickly. This was somebody who does not accept that people can change their sex and that trans women are women.

Paula Gerber:

So it became quite a, you know, making a point perhaps in this case.

Melissa Castan:

And there are lots of people that believe that. Right, Paula? There are lots of people that believe you can't change. You can't reassign. You just fixed it whatever your DNA type biology is.

Paula Gerber:

Well it's not in your DNA type, but you are fixed based on what was recorded on your birth certificate. So when a baby is born there is a quick look at the genitalia and a doctor makes a decision, this is male, this is female. They don't even know what the chromosomes say. This is purely a visual inspection of an infant. And the idea that that can never be changed or that it's a 100% accurate just doesn't stand up to what our current scientific knowledge is, which is, know, I mean, I don't want to conflate trans and intersex, but we have a lot of intersex people who may look female or male when born and in fact their chromosomes are ambiguous.

Paula Gerber:

And interestingly with the International Olympic Committee's decision to test the DNA of all female athletes before the next Olympic Games, that's not going to catch trans people so much because we've only ever had one trans woman who's been an Olympic athlete and she came dead last weightlifting in the Tokyo Olympics. This is going to catch out intersex people. And some people don't even know that they're intersex because we don't generally know what our chromosomes are. So, yeah, it's it's complicated, and that's really what the court has said. This sex is not this clear cut binary of male and female.

Paula Gerber:

It's it's much more complicated than that.

James Pattison:

You have started to touch on it here and also mentioned it a little bit earlier around sex and gender. And I wanted just for some of our listeners, you've written the book on this. You can find it in the show notes. And we might if you're if you're watching, we ought to see it on screen. There it is.

James Pattison:

Give us a little plug, would you?

Paula Gerber:

The book is called sex, gender, and identity trans rights in Australia, and the very first chapter is about language and terminology. Because sex and gender are often used interchangeably. And in in fact, in in law and in reality, they're quite distinct concepts.

James Pattison:

Let's go through it.

Paula Gerber:

Let's go

James Pattison:

through it, for listeners.

Paula Gerber:

Yeah. So so sex is, based is what you're assigned at birth on on a birth certificate. And we used to think it was just chromosomes, even though we we don't check your chromosomes when you're born. We now science has evolved and we now recognize that sex is a is a combination of anatomy, biology, chromosomes, hormones, all of these things combine to create the person's sex. And also we now recognize that sex is on a spectrum, that it's not just male or female.

Paula Gerber:

People can be more masculine or more feminine, feel more female, feel more male. So we've moved away from this binary, there are only two sexes of male or female. And intersex is as common as redheads in our population and that is where people might have more than 26 chromosomes, they may have two X's and a Y or two Y's and an X. There's all sorts of variations that lead to intersex. Then we have gender and gender is a social construct.

Paula Gerber:

Gender is how do we perceive someone and how does someone perceive themselves in terms of masculinity and femininity as the two generally accepted ends of the spectrum of gender. And gender changes over time. I mean, I remember when I first appeared as a lawyer, as a woman lawyer, there weren't that many of us around, and one of my colleagues, a judge, refused to hear her because she was wearing pants. And he said, no woman is gonna wear pants in my court. Now that is her gender and her gender expression.

Paula Gerber:

She wanted to wear pantsuits. The judge's sense of gender was that women wear skirts or dresses. So gender is determined or expressed through our names, through the way we dress, through makeup, expressions, all sorts of things. And gender differs from different cultures. I mean, in Japan, there is a much more strict gender divide between male and female than for example in the Scandinavian countries, which is much more about gender equality.

Paula Gerber:

So trans people are where the sex assigned at birth doesn't match what they perceive as their sex and gender to be. So they will often start to change their gender expression on a journey to transitioning to a different sex.

Melissa Castan:

Well Paula, why does this drive people so crazy and why has it made such a become part of a sort of culture war or a media war about identity?

Paula Gerber:

It's a complex question and issue because we know from historical artifacts that trans people have always existed. In many cultures there are third genders that, what we would call trans trans people in in Western culture. And what we also know is that how society has viewed trans people has vacillated over time from being accepting and embracing almost to, this is wrong and we're gonna burn you at the stake. You're a witch. So, at the moment, we're in one of those periods of time it sees where trans people are being vilified, and I think it's in part because they transgress our strict societal boundaries and attitudes about what men and women should be like.

Paula Gerber:

And I think in part, it's a bit of scapegoating. It's easier to blame trans people for all the problems in the world than it is to tackle climate change or gender based violence against women or antisemitism. So there's a lot of just this very small minority. I mean, the number of trans women in Australia would barely fill half the MCG. We are talking about very, very small numbers of people that are attracting so much hate.

Paula Gerber:

And I think they they become just an easy target and that this moral panic builds up that they're the threat when what we know is that the vast majority of, for example, violence against women is perpetrated by cisgender heterosexual men.

James Pattison:

Paulie, you mentioned that the federal sex discrimination act was changed in 2013, and that kind of I'm not sure if I've got my timeline right, but it seems to sort of precede this big trans panic that had become so fevered in in these intervening years. I'm trying to imagine a a federal parliament that might be able to pass something like that now. Would that happen in your view?

Paula Gerber:

Well, I think it's the times certainly have changed, and these amendments went through relatively innocuously. There wasn't I don't remember there being a whole lot of public debate or outrage. In fact, it was almost accepted as a bit

James Pattison:

of

Paula Gerber:

a compromise that we did this because there was a move at the time to combine all of the anti discrimination acts. The sense was we don't need a sex discrimination act and a race discrimination act and disability discrimination act, age discrimination act. We're making it too complicated. Let's just have one anti discrimination act and put it all together. And that fell apart.

Paula Gerber:

My recollection is a bit about because of the religious exemptions and whether faith based organizations should be permitted to discriminate. So this amendment to the sex discrimination act was almost a bit of a fallback position. Okay. Well, let's just do this minimal amount that we have to do because we need to and just put on the back burner the idea of consolidating all our anti discrimination acts.

Melissa Castan:

Paula, I want to come back to the case in point, and that's tickle and giggle. After that first federal court case, which you said was a bit of a neither party was particularly satisfied with some of the things that had come out through that case. Well, what what happened next and who decided that it was worth pursuing this further?

Paula Gerber:

Well, Roxanne Tickle really just wanted her life back and said, I'm accepting the court's decision and I just want to, you know, rebuild my life now. Giggle for Girls said, no, we still we think the judge got it wrong. This wasn't discrimination. We're entitled to exclude this person from our app. And so they appealed.

Paula Gerber:

And then Roxanne Tickle's like, well, if you're gonna appeal, then I'll appeal as well, and filed a cross appeal. And the result was ultimately that the Giggle for Girls appeal was dismissed in its entirety and Roxanne Tickle's cross appeal was successful. And she got a stronger finding about discrimination, that there were two acts of discrimination, not one. The first being when she was kicked off the app as the lower court judge had found, but then the court of appeal said there was a second act of discrimination which was when she was refused readmission to the app. As I said, the damages were doubled and she was also awarded costs of the appeal and the cross appeal capped at a $100,000.

James Pattison:

Were you expecting this outcome?

Paula Gerber:

No. I definitely wasn't. I thought the I had some concerns with the lower court judgment, but since then, the decision of For Women Scotland in the UK Supreme Court had come out, and that was very much that there is that sex is binary, male and female, and trans women aren't women. And so that had come out in the interim. So there was some concern that Australia could go down the path that The UK has gone down.

Paula Gerber:

I thought it was unlikely because our legislation is very well drafted and The UK legislation was much older and hadn't been updated like ours had. But nonetheless, I was surprised that it was as strong a judgment from the court of full court as it was. Yeah. You know, the thing about our law is that every case is decided on its own facts. So there is some ratio that we can take from this judgment and say, well, a court is likely to find on similar facts that a similar outcome that it was discrimination.

Paula Gerber:

And interestingly, and I think the reason there's so much attention on this case is even though the sex discrimination act was amended in 2013, this is the first case where these provisions have been tested in the court. The addition of gender identity and sexual orientation into that legislation. So it was a great deal of interest for law students and lawyers as to how the court's going to interpret this amended legislation. And so what we can take from this decision is the court said, look, Roxanne Tickle is a woman, and she's not just a woman because the Queensland Register of Births, Deaths and Marriages issued her a birth certificate that says she's a woman. Because this is Commonwealth legislation, that's state legislation, the births, deaths and marriages, and state law can't dictate how federal law is going to be interpreted and applied.

Paula Gerber:

But they said it's a factor, it's relevant, because every state and territory in Australia allows a person to change the sex on their birth certificate if it's wrong. If if they're trans, if they were assigned male at birth and they now identify as female, they can change their birth certificate. And they said that's a relevant factor because the court the parliament removed the definition of woman and female from the act. So we it's now on the court to define this, and so we're looking at the contemporary meaning. And the contemporary meaning is clearly that trans women are accepted as women.

Paula Gerber:

And so we find that Roxanne Tickle is a woman.

Melissa Castan:

So they're they're interpreting the act, and they're giving effect to what parliament's intention was?

Paula Gerber:

Absolutely. They looked at the explanatory memorandum, and parliament very clearly said in that document, we are doing this, we are removing the definition of woman and female and male and man because it's not broad enough to cover transgender people and gender diverse people. So when the courts are asked to interpret this legislation, one of the ways they do that is they look at the explanatory memorandum and so they got this very clear message from parliament that sex is not a narrow rigid binary.

Melissa Castan:

Paula, is it possible that the the exclusion of Roxanne Tickle was actually a special measure? That is it like an exemption or an exception to the normal ruling under the Sex Discrimination Act?

Paula Gerber:

Yeah. So the Sex Discrimination Act does include provisions that say it is okay to discriminate in some circumstances if it's to improve the equality. So Sail Grover and Giggle for Girls said this is a special measure. Giggle for Girls app is about increasing equality between men and women. And the court said, well, it could be a special measure, but it can't be just improving some women's equality with men.

Paula Gerber:

And the example that they gave is if you say if you recognize that women are at greater risk of drowning, Muslim women in particular, because they're not having swimming lessons, because they don't wanna go in a pool in swim gear with men, then it's okay for a for a swimming pool operator of a public swimming pool to say, we're gonna have a women's only swimming class on Saturday afternoons. That's acceptable.

Melissa Castan:

That would

Paula Gerber:

be a special measure. What would not be acceptable is to say, we're going to have a women's only swimming class but no lesbians. Or a landlord might say, look, I see women being locked out of the rental market and I want to actually just rent my property to females. That would be okay. It's addressing a a recognised inequality.

Paula Gerber:

But what would not be okay is to say, I'm going to rent just to female tenants but nobody who's breastfeeding. Because again, breastfeeding, sexual orientation, gender identity are all protected measures under the Sex Discrimination Act. So you cannot try and advance a quality of one group protected under the Act at the expense of another group protected under the Act. So that's very helpful guidance that the court has given us on that as well.

James Pattison:

What does this particular judgment say and what sort of warnings does it have for business owners?

Paula Gerber:

Well, I think any business that is providing goods and services to women only need to think about, am I providing my goods and services to all women? So if you are operating a women's only gym, women's only cooking classes, that I think you'd you'd be wanting to check about do I have a policy that is inclusive of all women, not just those who were assigned female at birth? And there are still exemptions under the sex discrimination act that people can apply for if they genuinely feel that to include trans women in a women's only space would be problematic and the exemptions are for exact for example, in a sport where strength and stamina is a relative factor in competition, you might be going, well, we don't want trans women in this. But if you don't fall into one of those sort of exceptions, I think this case is sending a clear message that you need to be providing your services to all women.

Melissa Castan:

Do you think that that definition and that amendment that was put in in 2013 is now at risk because of this case?

Paula Gerber:

Well, potentially. I mean, think that the decision could be appealed to the high court. I think the high court would be unlikely to overturn it. I think that the decision is correct. They've interpreted and applied the legislation correctly.

Paula Gerber:

If there is an appetite to change this, to to say trans women are not women, trans men are not men, then the only avenue to do that is through parliament. It would be a very retrograde step. I mean, one of the things that the full court did in this judgment is they referred to a nineteen ninety three case of SRA where the court said, clearly, a person can change their sex. And in that instance, it was about getting a widow's pension, and the person had not had gender affirming surgery. And they said, well, you're you're still a man.

Paula Gerber:

You're not yet a woman because you haven't had the surgery. But what the court in Giggle and Tickle drew from that is that even in 1993 we recognised that people would change their sex. And I think and and they said, and since then we've progressed more in our thinking in that we now accept as a society that surgery is is not necessary. And they didn't say this in the judgment, but one of the issues here is that it's not covered by Medicare. Surgery can be unaffordable for many people.

Paula Gerber:

And there are people who have health conditions that mean that that surgery is not an option for them. So it's not a prerequisite that you have surgery to now be considered a woman. So I think it would be a very step backwards if the Sex Discrimination Act was amended to go back to its 1984, version.

James Pattison:

With trans people under such attack across the world, how would you rank, especially after this case, Australia as a as a trans friendly or not society?

Paula Gerber:

It certainly is a a trans friendly society compared to some other Western countries like The US and The UK, which are currently quite hostile to trans people. But we should have a broader outlook. I think we have a lot that we could learn from our Pacific neighbors. Trans people in Samoa, in Tonga, in Solomon Islands are much more revered and accepted as a word I hate, but a normal part of humanity. And many Christian missionaries have tried over decades to stamp out that acceptance of gender diversity, and they've failed.

Paula Gerber:

So in India, again, we have third genders who are accepted and respected part of society. Hungary under Viktor Orban was very hostile to LGBTIQ people generally, but trans people really specifically. And they had a federal election recently and throughout that government. And the new government has said we are, repealing all these anti trans laws. So there is certainly an increase in hostility towards trans people in some countries, and Australia seems at the moment to be resisting that, but it's certainly not all Western countries or all countries.

Melissa Castan:

Paula Gerber, thank you very much for joining us on Case In Point.

Paula Gerber:

Thanks for the opportunity to talk about this important case.

Melissa Castan:

Paula Gerber is a professor of law at Monash University and the author of Sex, Gender and Identity, Trans Rights in Australia. If you're a regular listener of Case In Point, we'd love to hear from you. We'd love you to review us on your podcast platform.

James Pattison:

Only five stars. Only five stars, though. If it's less, don't like, literally, just don't bother. If you didn't like

Melissa Castan:

Well this well, we we will take feedback. We will take feedback. James won't take the feedback. We'd love to hear from you. You can email us, and we'd love to know what cases you're interested in hearing about next.

Melissa Castan:

So we look forward to your feedback.

James Pattison:

Email Melissa. You can find her email address publicly.