We’ve been publishing our monthly “Dishonorable Judicial Conduct Award” since January to state and federal judges all over the United States. But it seems that the temptation for judges to impose their ideological views on the rest of us is, like COVID-19 was, a worldwide pandemic. For this reason, we have decided to deviate from our usual practice of drawing attention to a domestic opinion by taking a look Down Under at Giggle v. Tickle.
No, that’s not the title of a Saturday morning cartoon. It’s a decision by the Federal Court of Australia, which is just below the High Court of Australia, concluding that the founder of a social networking app for women discriminated against a man by denying his application to join based on his gender identity.
For essentially rewriting the federal Sex Discrimination Act, Judges Melissa Perry, Geoffrey Kennett, and Wendy Abraham earn September’s Dishonorable Judicial Conduct Award, our first international prize winner.
Sall Grover started Giggle for Girls, a mobile social networking platform for women, in 2020. To help ensure that it remained a safe site for women, she required applicants to submit a selfie photo that was screened by AI facial-recognition software to identify men. The software wasn’t perfect, so applicants were subjected to a final review by a staff member. That review flagged the photo of Roxanne Tickle, a biological male who underwent surgery to change his appearance in 2018 and applied to join Giggle in 2021.
Tickle might have been better off suing his plastic surgeon since it seems the surgery wasn’t very successful. When Giggle’s staff member looked at the photo, she “saw a male person.” His application was denied.
Australia’s Sex Discrimination Act (SDA), first enacted in 1984, prohibits anyone providing goods or services from discriminating on the basis of someone’s “sex, sexual orientation, [or] gender identity.” It also distinguishes between direct discrimination “on the ground of” such a factor and “indirect discrimination” that has the effect of disadvantaging someone.
Tickle sued, alleging that denial of his registration was based on gender identity. The lower court found Giggle guilty of “indirect” gender identity discrimination, but the Federal Court instead said the discrimination had been directly based on gender identity.
There’s no evidence that the folks at Giggle knew Tickle’s gender identity when he applied. Instead, Tickle focused on an SDA provision that direct gender identity discrimination includes treating someone less favorably “by reason of a characteristic that appertains generally… or… is generally imputed to persons who have the same gender identity as the aggrieved person.” But even this makes no sense. Giggle’s policy excludes biological males, not biological males who identify as, and pretend to be, women. If their application process, including AI review, considers characteristics, they are male characteristics.
The way to untangle this mess is to understand the agenda of those who created it. Sex is an objective, biologically based fact. Gender is a subjective, perception-based claim. Tickle, like other gender activists, wants to erase any distinction between sex and gender so that the law treats anyone claiming to be this or that as actually this or that.
Gender warriors are free to hold this warped opinion, but courts are supposed to be impartial and stick to the law. No one could possibly believe that, when passing the SDA in 1984, the Australian Parliament understood “sex” to be anything other than biological. Okay, but the Federal Court suggested that Parliament abandoned the binary view of sex when it amended the SDA in 2013.
If so, the Australian Parliament did not say so. While the 2013 amendment removed the specific definitions of “male” and “female,” the SDA continues to use those as distinct, contrasting categories throughout. It defines intersex status, for example, as having features that are “neither wholly female nor wholly male.” That only makes sense if female features and male features are, in fact, real things.
Nor did the addition of gender identity eliminate the distinction. Quite the opposite. The Explanatory Memorandum prepared when Parliament considered the 2013 amendment states explicitly that, compared to sex, gender “is a different concept, understood to be part of a person’s social identity (rather than biological characteristics).”
What really exposes the agenda here was that Tickle insisted on alleging gender identity discrimination even after Giggle admitted to sex discrimination, which is also prohibited by the SDA. Giggle, like the SDA itself, views sex and gender differently; Tickle wants them treated as the same.
Rather than take the SDA as Parliament enacted it, the three-judge Federal Court unanimously jumped on Tickle’s ideological bandwagon and delivered results that may be politically popular, but certainly not legally correct. The gobbledygook used by these judges to justify what they did would be amusing if this wasn’t so serious. In reference to the Giggle staffer, her “change in behavior following review of Ms Tickle’s selfie affords a compelling basis on which to infer that [the staffer] decided not to readmit Ms Tickle based on her perception that Ms. Tickle had the physical gender-related appearance of a man.”
Yes, because he is a man (not a Ms). But recognizing a man as a man is now basically against the law in Australia according to this court, so anyone using the traditional greeting of “G’day mate” better watch out – the gender police will be looking for you.
Sen. Michaelia Cash, the leader of the Liberal Party, has introduced a bill to reassert biological definitions for male and female. She shouldn’t have to, since, read properly, the SDA never abandoned those definitions. The majority Labor Party has so far blocked consideration of her bill, a sign of how transgender ideology has infected the Labor Party the same way it has infected the Democratic and Democratic Socialist Parties in the United States.
For veering into the legislature’s lane and rewriting the Sex Discrimination Act, Judges Melissa Perry, Geoffrey Kennett, and Wendy Abraham earn September’s Dishonorable Judicial Conduct Award – and please, don’t emigrate to America.
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