85 The respondents rely upon the very existence of the Giggle App as a special measure for the purpose of achieving substantive equality between men and women. That may well have been successful if a cisgender man had claimed s 5 sex discrimination by reason of being excluded from using that App, and the special measures exception did apply. But that is not the present situation. The respondents contend that a special measure will not amount to discrimination if it advances any of the other provisions in the nine paragraphs to s 7D(1), corresponding to the eight provisions describing different types of what would otherwise be discrimination listed in s 7D(2), being ss 5, 5A, 5B, 5C, 6, 7, 7AA and 7A. That is, the respondents contend that a special measure done for the purpose of achieving substantive equality between men and women will avoid, by operation of s 7D(2), being gender identity discrimination for the purposes of s 5B.
86 That contention is plainly untenable. It is obvious and logical to read s 7D(1) and 7D(2) together, so that a special measure falling within s 7D(1)(a) (discrimination between men and women) does not constitute discrimination only as described in s 5 (sex discrimination). Any other interpretation would be unworkable and nonsensical. It simply cannot be that a special measure of advancing substantive equality between men and women provides any shield from gender identity discrimination, any more than it would provide a shield against discrimination on any of the other grounds listed in s 7D(2). The respondents' contention must fail.
PART 4: EVIDENCE AND FACTUAL CONCLUSIONS
(a) Ms Tickle
87 Ms Tickle identifies, and is legally recognised, as a woman. She was male sex at birth, and since about June 2017 she has lived as a woman, which has been a gradual process of transitioning her gender including social, medical and legal components. She began to use the name Roxy Tickle and told friends, family and her workplace of her transition. She began taking testosterone blockers, oestrogen and progesterone with the effect, as she described, of inducing a second puberty, and changing most parts of her body. She began to use female changing rooms and started playing in a local women's hockey team. She began shopping from the women's side of clothing stores and began a process of removing her facial hair.
88 On 19 May 2018, the Queensland Register of Births, Deaths and Marriages reissued her birth certificate with the name she now uses. In October 2019, she underwent gender affirming surgery, specifically a labioplasty and vaginoplasty. On 18 September 2020, her birth certificate was again reissued by the Queensland Register, now with a female sex marker.
