Page:Tickle v Giggle for Girls Pty Ltd (No 2).pdf/1

FEDERAL COURT OF AUSTRALIA Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960
File number(s):	NSD 1148 of 2022
Judgment of:	BROMWICH J
Date of judgment:	23 August 2024
Catchwords:	HUMAN RIGHTS – gender identity discrimination – s 5B and 22 of the Sex Discrimination Act 1984 (Cth) (SDA) – where transgender woman excluded from a woman's only social media application – construction of "sex" in s 5 of the SDA – construction of s 5B of the SDA – construction of s 7D (special measures exception) of the SDA – whether respondents had engaged in direct or indirect gender identity discrimination – where applicant removed on visual inspection of a photograph submitted to the social media app in question – whether evidence established awareness of applicant's gender identity on the part of the respondents – whether respondents effected a policy of excluding transgender women – HELD: respondents had engaged in indirect gender identity discrimination against the applicant CONSTITUTIONAL LAW – whether s 22, to the extent it prohibits discrimination on the ground of gender identity, not supported by head of Commonwealth legislative power – external affairs power – corporations power – operation of s 9 on construction of provisions of the SDA – Convention for the Elimination of All Forms of Discrimination Against Women (1979) (CEDAW) – Art 26 of the International Covenant on Civil and Political Rights (1966) (ICCPR) – meaning of discrimination against women under CEDAW – whether gender identity is a status for the purposes of Art 26 of the ICCPR – whether Giggle for Girls Pty Ltd is a trading corporation – whether CEDAW and/or Art 26 of the ICCPR support the prohibition of gender identity discrimination in s 22 – HELD: s 22, to the extent that it prohibits discrimination on the ground of gender identity, supported by the external affairs power as an enactment of Art 26 of the ICCPR – s 22, to the extent that it prohibits discrimination on the ground of gender identity, also supported by the corporations power in application to the respondents as Giggle for Girls Pty Ltd is a trading corporation and the second respondent its officer