- (d) whether's 24(1) of the Qld BDM Registration Act is inconsistent with ss 5, 5B, 7B, 7D and 22 of the SDA by operation of's 109 of the Constitution, an issue also raised in the respondents' amended's 78B notice.
14 The Commissioner did not appear for or with either side in this proceeding, and was not a party to the proceeding. The Commissioner did not make any submission on the question of whether or not gender identity discrimination had in fact taken place. Rather, the Commissioner, via counsel, assisted the Court on key legal questions, especially in relation to the interpretation of the SDA and its constitutional validity. I was substantially assisted by counsel for the Commissioner.
15 Ms Tickle largely adopted the Commissioner's submissions on the above topics with little addition, while the respondents opposed them, but did not fully or even adequately address them. Not every aspect of the Commissioner's submissions needed to be considered, especially on the topic of reliance on CEDAW to support the gender identity discrimination provisions of the SDA, because of the nature of the Ms Tickle's case which did not allege any gender identity discrimination in favour of a man or men.
(b) Overview of the evidence
16 The essential facts as to what took place are largely not disputed, as briefly summarised below, and detailed further later in these reasons as necessary.
17 In about February 2021, Ms Tickle downloaded the Giggle App. The Giggle App had been marketed as being a means for women to communicate with one another in what was described as a digital women-only safe space. Ms Tickle undertook a registration process to gain access to the Giggle App, which including providing information and uploading a self-taken photograph of her face, commonly known as a selfie.
18 The photograph provided by Ms Tickle to Giggle was assessed by third-party artificial intelligence (AI) software, designed to distinguish between the facial appearance of men and women. The trial evidence from Ms Grover, which I accept, established that the AI software was deliberately set to less than its maximum reliability, so as to err on the side of inclusion of a user who identified as a woman rather than exclusion of a user because they were identified by the AI software as a man. If that AI software accepted the photograph, access was granted to the Giggle App. Ms Tickle gained access to the Giggle App.
