requirement that they appear, on examination of their photograph, to be cisgender women. The difficulty for the first requirement in the indirect discrimination claim is twofold:
- (a) it more properly relates to a direct discrimination claim, requiring proof of both the existence and application of a policy of excluding transgender women; and
- (b) more importantly, it does not engage with how she was actually removed from being able to use the Giggle App, which was on the examination of her selfie photograph only after she had been granted access.
48 Neither difficulty was averted to by the respondents. That leaves the second requirement, being the true thrust of Ms Tickle's indirect discrimination case, being that the respondents imposed a condition on users, on inspection of their photos by Ms Grover, that they appeared to be cisgender women.
49 The respondents' substantive case, drawn more from their submissions than their pleading which is largely an exercise in blanket denial, is that Ms Tickle was granted ordinary access to the Giggle App via the AI assessment process, and that she was removed from the Giggle App because she was an adult human male, the respondents rejecting altogether the use of the word woman to describe Ms Tickle. All of Ms Tickle's allegations summarised above are flatly denied in that context. Importantly, the respondents deny that they were aware of Ms Tickle's gender identity at the time she was removed from the Giggle App. As will be seen, this would be capable of being a complete answer to Ms Tickle's case of direct discrimination, but does not address Ms Tickle's case of indirect discrimination. To the contrary, as advanced by their pleaded defence and the way in which they ran their case, they have tended to help Ms Tickle to establish indirect discrimination.
50 It is apparent that a key dispute is not one of what has taken place, except on the periphery, but rather one of characterisation, with the respondents essentially taking issue with the very concept of gender identity. They appear to contend that a claim of gender identity discrimination can be answered by asserting that sex discrimination occurred, and that the kind of sex discrimination they engaged in is a special measures exception under s 7D of the SDA. That is manifested in part by the respondents' constitutional challenge to the validity of s 5B (really a challenge to the validity of s 22) as being beyond the legislative power of the Commonwealth, and in part by the interpretation they give to the operation of ss 5 and 5B of the SDA. That challenge, addressed below, is in part a reflection of the respondents having no real answer to the case of indirect discrimination on the undisputed and proven facts.
