136 Nor do the respondents deny in this proceeding that the effect of this condition was that it would not just exclude men who were male sex at birth, but also transgender women too, including transgender women who are legally regarded as female. Indeed, it was not direct discrimination only because, on the evidence before me, it was not established that the respondents were aware that Ms Tickle was a woman, so that her gender identity was not established to be any part of the reason for her exclusion. The respondents not only did not deny this as a possible or likely outcome of the condition, but embraced it as being a legitimate and desirable thing to happen. They saw, and continue to see, nothing wrong in not drawing or attempting to draw this distinction.
(e) Other evidence relied upon by the respondents
137 The respondents relied upon expert evidence to support their arguments as to the meaning of the word "woman" in CEDAW and the SDA. They also read 14 affidavits from users of the Giggle App that they relied upon in relation to their submissions as to the application of the s 7D exemption. For the reasons below, none of this evidence was of any assistance to the respondents' case.
(i) Expert evidence
138 The respondents included three purported expert reports in the Court Book. Those reports are from Colin Wright, Helen Joyce and Kathleen Stock. Dr Wright and Dr Stock's reports were accepted as expert evidence without objection. None of Dr Wright, Dr Joyce or Dr Stock gave oral evidence at the hearing.
139 I did not accept Dr Joyce's report as expert evidence in this case, with both Ms Tickle and the respondents accepting that she lacked sufficient expertise for the exception to the opinion rule to apply: see Evidence Act, ss 76, 79. The respondents put forward a rather peculiar argument that this report went to a finding of legislative fact, which they contended to be whether the Giggle App could be regarded as a special measure under s 7D of the SDA, and they therefore sought to tender it not as evidence or submissions but some mysterious third category of document to which the Court could have regard. Such a finding as to whether the Giggle App is a special measure would clearly be one of fact. In any case, my earlier finding as to the construction of s 7D, and its inapplicability to the respondents' case, would render this asserted evidence of no moment. The report was ultimately relied upon by the respondents as their own submissions. As such, it went nowhere.
