reports daily, there was a backlog of these reports and that Giggle staff were not reviewing the reports as they came in. If Ms Grover was reviewing selfies from February 2021 in September 2021, and hence first saw Ms Tickle's onboarding selfie and subsequently blocked Ms Tickle at that time, this would explain why she was able to use the Giggle App for the intervening months before being blocked from the App.
128 In summary, I have made the following factual findings:
- (a) Ms Tickle's inability to access certain features on the Giggle App was a consequence of her being blocked from that App;
- (b) that block occurred when Ms Grover made a decision to remove Ms Tickle from the App after reviewing her onboarding selfie and concluding that she was male;
- (c) that review and block occurred at some point before 4 October 2021, most likely in September 2021;
- (d) Ms Tickle subsequently contacted Ms Grover about being denied access and provided her mobile phone number to Ms Grover; and
- (e) Ms Grover also provided her mobile phone number to Ms Tickle by way of the signature block in her reply email to Ms Tickle.
(ii) Conclusions on gender identity discrimination
129 In light of the foregoing, I am unable to accept that any direct discrimination has been established, repeating the observations above that this was not really, in substance, the case that Ms Tickle advanced. The evidence did not establish that Ms Tickle was excluded from the Giggle App by reason of her gender identity, although it remains possible that this was the real but unproven reason. Rather, the evidence goes no further than establishing that her exclusion was likely to have been a byproduct of excluding those who were perceived as being men, by the use of visual criteria that failed to distinguish between cisgender men and transgender women.
130 Ms Grover embraced the fact that Giggle had a policy of excluding all people who were male sex at birth at the time Ms Tickle was removed, and this included, as Ms Grover made clear in oral evidence and her blog post quoted at [92] above, transgender women. A difficulty for Ms Tickle's direct discrimination case remains, however, the lack of clarity surrounding Ms Grover's specific decision to remove her from the Giggle App, including because of the failure to delve into this by effective cross-examination.
