asked to submit another photo. That is certainly what Ms Grover seemed to be suggesting would occur when she responded to Ms Tickle's initial email, asking for Ms Tickle's phone number so that she could personally look into it. It is certainly possible that Ms Grover had been put on notice that Ms Tickle identified as a woman by that email, and that she proceeded to review Ms Tickle's photo, choosing not to readmit her because she regarded Ms Tickle as male. However, the evidence before me is that she only reviewed the photo at a later stage, after Ms Tickle called her. There is no firm basis for me to infer that, at that stage, Ms Grover was aware of who Ms Tickle was or her gender identity. All of this might have been explored in a more effective cross-examination of Ms Grover, but it was not, and I am left with the facts established by the evidence that was adduced.
134 The situation and conclusion for indirect discrimination is the polar opposite, for much of the same reasons that the claim of direct discrimination fails. Ignorance of Ms Tickle's gender identity is no defence to the indirect discrimination claim; indeed, it is a significant part of the reason why her case succeeds. The imposed condition of needing to appear to be a cisgendered female in photos submitted to the Giggle App had the effect of disadvantaging transgender women who did not meet that condition, and in particular Ms Tickle. But this finding applies only to the act of excluding Ms Tickle from the Giggle App. It does not apply to her not being readmitted due to the paucity of evidence to explain this, or even to establish that any positive decision was made not to allow this to take place.
135 As to exclusion, ordinarily there is a need for a careful comparator exercise to be carried out, in order to identify how and why a condition, requirement or practice imposed or proposed to be imposed has or is likely to have the effect of disadvantaging the person indirectly discriminated against, or persons who have the same characteristics of the aggrieved person, here having the same gender identity as Ms Tickle, namely that of a transgender woman. This requirement must still be addressed, but on the way in which the evidence has unfolded and the competing arguments advanced, it is straightforward. That is because, in substance, as opposed to any pleading or argumentative form to the contrary, the existence of the condition and its effect is not disputed or otherwise in issue. It is not denied or otherwise in doubt that the basis for the exclusion of Ms Tickle was that she was perceived to have a male appearance, that is, she was perceived to have been male at birth. Indeed, this was the very essence of the respondents' case.
