referred to as transgender. The respondents do not accept the legitimacy of the terms cisgender and transgender.
5 The gender identity discrimination asserted by Ms Tickle is in relation to the provision of services, alleging both direct discrimination as defined in s 5B(1) of the SDA, and indirect discrimination as defined in s 5B(2). The conduct said to constitute both direct and indirect discrimination arises from Ms Tickle being prevented by the respondents from using a mobile phone digital software application, commonly known as an App, marketed for social communication between women (the Giggle App). While both direct and indirect discrimination may be alleged in the alternative, only one of the two can ever succeed in relation to a given allegation of discrimination. While both are alleged, Ms Tickle confirmed at the hearing that her allegations of direct and indirect gender identity discrimination were advanced as alternatives.
6 Ms Tickle seeks declarations of contravention, damages (including aggravated damages), a published written apology and an order to allow Ms Tickle to access the Giggle App on the same terms offered to other female users. The claim for aggravated damages was not particularised, nor well evidenced. Ms Tickle's pleadings were not well drafted.
7 The distinction between direct and indirect discrimination in s 5B of the SDA is considered in some detail later in these reasons. It suffices at this stage to note that:
- (a) direct discrimination is discrimination by reason of gender identity, whether it be that actual gender identity, or a characteristic that appertains to, or is generally imputed to, persons who have that gender identity;
- (b) indirect discrimination is the imposition, or proposed imposition, of a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging a person relative to another person or persons who have a different gender identity.
8 The respondents do not deny that Ms Tickle was prevented from using the Giggle App. Instead, they challenge the constitutional validity of the gender identity discrimination provisions of the SDA inserted in 2013. That was principally achieved by the addition of the phrase "gender identity", defined in s 4, to the grounds for discrimination in the provision of goods or services in s 22, and the corresponding stipulation of what constitutes direct or indirect discrimination on the ground of gender identity as described in s 5B.
