131 Ms Grover's evidence is that she cannot remember blocking Ms Tickle, but the decision would have been based only on Ms Tickle's selfie, and that she was reviewing large numbers of selfies quickly. Further, she gave evidence that she did not recall Ms Tickle from their earlier Twitter exchange, and that nothing on Ms Tickle's Giggle App profile pointed to her being a transgender woman. I am left to conclude that it is most likely she did not know that Ms Tickle was a transgender woman when she reviewed her selfie, and instead excluded her on the quick or reflexive decision that she appeared to Ms Grover to be a male. Of course, given Ms Grover's views, her decision almost certainly would have been the same had she been aware of Ms Tickle's gender identity. For Ms Grover, there is no legitimate distinction between transgender women and cisgender men. Denial in the legitimacy of that distinction would be no answer to a case of direct discrimination, if awareness of Ms Tickle's gender identity had been established. Nonetheless, the direct discrimination case must fail on the more basic evidential basis that it has not been established that Ms Grover was aware of Ms Tickle's gender identity at the time she blocked her from the Giggle App. The exclusion, therefore, was not proven to be by reason of Ms Tickle's gender identity.
132 It is conceptually possible for Ms Tickle to have been excluded from the Giggle App not due to direct gender identity discrimination, yet later be refused readmission to that App by reason of such direct discrimination. This could be the case if, after the initial exclusion, there was an intervening realisation of her gender identity by the respondents, and that new knowledge of her gender identity was the reason for denial of readmission. However, that claim of direct discrimination by reason of not being readmitted to use the Giggle App suffers from a shortfall of evidence establishing Ms Tickle's messages made the respondents aware of her gender identity, and that there was no response to Ms Tickle's inquiries by reason of her gender identity. There was also no evidence as to any actual decision not to readmit, nor any reason for non-readmission beyond the reason for exclusion in the first place, namely that Ms Grover considered Ms Tickle had the appearance of a cisgender man.
133 There is some evidence that might, with a measure of exploration in cross-examination, have supported an inference that Ms Grover had been made aware that Ms Tickle identified as a woman but, on review of her selfie, declined to readmit her. In her affidavit evidence, Ms Grover she said that users who had been refused access from the Giggle App would often email Giggle, and her practice had been to use the users' phone numbers to look up and review their selfies on Athena. She states that if the user appeared to be female they would be admitted, if they appeared male they would remain blocked, and if their sex was ambiguous they would be
