77 The respondents' argument is contrary to the express terms of s 5B as well. The words by reason of in s 5B(1) point to the requirement for a causal connection between a person's gender identity, or a characteristic that generally appertains or is imputed to persons of that gender identity, and the less favourable treatment by the alleged discriminator: Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 at 322 (Lockhart J). It is not a "but for" test as this would be to improperly focus on the consequences for the complainant, rather than the "real reason" for the alleged discriminator's conduct: Purvis v New South Wales [2003] HCA 62; 217 CLR 92 at [166] (McHugh and Kirby JJ). Identifying whether the treatment occurred by reason of gender identity requires an examination of the relevant circumstances, but there is no requirement for a specific kind of intention or motive: Mt Isa Mines at 322. As Gummow, Hayne and Heydon JJ noted in Purvis in part of [236]:
the central question will always be—why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".
78 It is implicit in s 5B(1) that the discriminator actually be aware of a person's gender identity, or the characteristic that generally appertains or is imputed to persons of the same gender identity. But that awareness is different from a requirement that a person have some additional belief about the legitimacy of that gender identity. In short, if it were established that the respondents had been aware of Ms Tickle's gender identity, but dismissed its legitimacy and for that reason excluded her from the Giggle App, her case of direct discrimination would likely have succeeded.
79 I should also note that Ms Tickle's direct discrimination case is pleaded as discrimination on the basis of her gender identity, not a characteristic imputed or appertaining to it. It follows that it is therefore necessary for her to establish that the respondents had knowledge of her gender identity.
80 Less attention was paid to s 5B(2) by both sides, despite it being the real thrust of Ms Tickle's case. Section 5B(2) provides that indirect gender identity discrimination involves the imposition of a condition, practice or requirement that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the aggrieved person. The provision is largely directed to kinds of discrimination that are facially neutral, but have a discriminatory effect, intended or otherwise. It requires identification of a comparator group by which the disadvantage of persons who share a gender identity with the aggrieved person
