Page:Tickle v Giggle for Girls Pty Ltd (No 2).pdf/22

(a) a condition was imposed by Giggle, on the instruction, or at the will, of Ms Grover – that is, she primarily makes a claim of indirect discrimination by the imposition of a condition;

(b) the condition was that, to be allowed ordinary access to the Giggle App, a user had to be a cisgendered female, or be determined as having cisgendered female physical characteristics by Ms Grover on a review of the selfie photograph provided by a prospective App user during the process of applying to use the Giggle App – this aspect of Ms Grover reviewing photographs at the registration stage, as opposed to a later review of the AI approvals, is not supported by the evidence;

(c) in breach of s 22 of the SDA, Giggle and/or Ms Grover discriminated against Ms Tickle on the basis of her gender identity by imposing that condition, excluding her from using and assessing the Giggle App which was otherwise available to cisgender women and by not responding to her requests for access;

(d) by the imposed condition, Ms Tickle was treated less favourably than cisgender women because she is a transgender woman–noting that this very pleading seems inherently not just a claim of indirect discrimination, but abandoning a claim of direct discrimination, and also noting that it has to be one or the other (or neither), but cannot be both at the same time as they are mutually exclusive: see Sklavos v Australasian College of Dermatologists [2017] FCAFC 128; 256 FCR 247 at [14]–[16] (Bromberg J, Griffiths and Bromwich JJ agreeing on this point), and the authorities there cited;

(e) imposing that condition constituted a breach of the prohibition of discrimination on the ground of gender identity in s 22 of the SDA, as the condition disadvantaged transgender women because they are not be able to gain ordinary access to the Giggle App and are vulnerable to disparaging conclusions and exclusion based on their appearance;

(f) unlike transgender women, cisgender women would not have their access to the Giggle App restricted, or their claim to be a woman questioned on the basis of their physical appearance by Giggle and/or Ms Grover, and either or both of them would have engaged with cisgender women and responded to their queries regarding exclusion from the Giggle App – again, apparently not advancing a claim of direct discrimination.

47 Ms Tickle points to two requirements that make up the imposed condition she alleges gave rise to indirect discrimination: the requirement that Giggle App users be cisgender women, and the

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