Tickle v Giggle decision Friday 23 August

[Wearingmybluejumper]

The long awaited decision will apparently be live-streamed at 9 am Friday 23 August (AEST). See screenshot from X below.
I feel suddenly anxious!!

This link still says 'trial decision pending'. Does anyone know if she's just rolling over any new donations to go towards an appeal? In other words, if I donate now, will my money be used rather than fall through the cracks of e.g. a closed-down appeal?

I think the judge was circumscribed by the law. Possibly also captured, of course.

Which is totally stupid. The law is an ass.

I do wonder why someone who looks like the love child of Compo and Ed Sheeran thinks that lesbians will find him attractive. Surely every "cookery / knitting" hookup will end in disappointment for him? And probably stronger feelings than disappointment for his opposite number.

No need for them to be attached to reality either.

In the event that the appeal fails, does anyone know if there is any reason why the app couldn’t be registered and run from a different country and target Australian women? The app I think originally had facial recognition built in and didn’t rely on face to face to determine eligibility for membership

Do you think that men joining groups that are intended for women should be encouraged?

Regardless of their motives.

'Banned for looking like a potato'.

As pointed out by @LilyBartsHatShop , the decision simultaneously finds that he's legally female with a gender identity to match, and that he has a different gender identity from the females unaffected by the 'ugly mug rule'. It's a decision by Möbius or M C Escher.

The explanation is that the law is pants, even on its own terms.

I agree that it's completely illogical and manifestly unfair.

The case does seem to have peaked a lot more people looking at the comments on Twitter though that may just be my echo chamber

It’s legally a mess, but what the judge appears to have found is tickle is legally female with a female gender identity. He is also transgender because he was born a male. He doesn’t have a different gender identity from “cisgender” women, but the rule that you have to appear female disadvantages transgender women more than cisgender women (sorry for using this terminology , but this what judge used). Transgender women (being born male) will disproportionately find it harder to satisfy the “must appear female” rule , compared to cisgender women. So it’s indirect discrimination against males with female gender identities. Essentially what the ruling means is that gender identity trumps the protected characteristic of sex because it’s not possible to say that tickle was excluded because he was male. I’m a lawyer and honestly I find this really difficult to get clear in my mind - gender identity has such weird interactions with sex. It makes the sex protected characteristic pointless , unless all you want to do is exclude males with male identities.

from what I understand , cisgender and transgender women share the same gender identity of “woman”. There wasn’t discrimination on the basis of different gender identities… the discrimination arose because it’s harder for transwomen to appear female because they were born male, whereas cisgender women are far more likely to fulfil the requirement of appearing female. So the real confusion is that tickle is legally female and is a woman , and there’s no discrimination on the basis of sex at all… but all of a sudden his maleness pops up to give him a disadvantage compared to women who aren’t male. It seems you can’t have it both ways- you can’t say his male sex is irrelevant and he’s female AND at the same time say his male sex at birth is the reason for the discrimination ultimately. He’s either a woman fully (sex and gender) and in that case the policy applies to everyone equally and would affect masculine appearing women just as much as tickle. Or he’s discriminated against for being male in which case you can’t say his sex is female. It’s trying to square the impossible.

So, 'is trans and has a female gender identity' is a different flavour of gender identity from 'is a cis female, with or without a gender identity'? It's like bloody particle physics!

It's very similar to English law, where 'gender reassignment ' does all the heavy lifting.

Thanks @WeeBisom, it's really helpful to have input from people who know this stuff.
I got into the swing a bit today, reading more of the judgement, and then looking up cases referred to in the judgement.
It is a world unto itself - it makes for strange reading when the judge's justification for saying the ordinary definition of the word "woman" includes trans women like Tickle is a reference to an older case where three old codgers on a bench the justices found that that was the ordinary definition. Like a world unto itself, that only refers to itself. Is there any way for courts to self correct?

I feel like we're going to need a political, legislative solution to this. Which the case will help build energy for if it makes it to the High Court, but I'm not sure that they'll be granted appeal even. (And I'm also worried by what else would be brought to the table by a federal government willing to legislate the changes I want to see to the SDA).
I'm desperately confused by the role played by the Sex Discrimination Commissioner in the case. How on earth could the judge find in a way that disagrees with the commissioner herself? That strikes me as such a muddying of the division of powers. BUT I am on a steep learning curve and tomorrow I may be a little less baffled by it all!

I especially enjoyed the part where the judge wouldn't accept Helen Joyce as an expert witness because she doesn't have any relevant expertise. It is about time in this debate for some recognition that having loud opinions doesn't make you an expert.

And putting on lipstick doesn’t turn a man into a woman

Yeah, we know, absolutely nobody believes that it does, including trans people.

Thanks for that very clear explanation @WeeBisom at least I can understand the judge's reasoning now and nail down why I disagree with it!

I have just spent a happy half hour watching "Trial by Jury" on YouTube, and when Angelina swanned on in lippy and heels, not the usual wedding dress, it struck me how very little tweaking it would take to change the case to one of these. Gilbert had certainly known inadequate judges. This was definitely managed by a job, and a bad one too.

God, this "looks male because used to be male, but is now an actual female woman, so is disadvantaged by looking like a man" schtick is making my poor brain hurt.

Suggesting males look like men is pretty transphobic. That's what a woman looks like, as the judge well knows.

From what I understand , cisgender and transgender women share the same gender identity of “woman”. There wasn’t discrimination on the basis of different gender identities… the discrimination arose because it’s harder for transwomen to appear female because they were born male, whereas cisgender women are far more likely to fulfil the requirement of appearing female

So the law is based on an entirely made up, unevidenced, unproven, unscientific ideology - that people have a 'gender identity.'

Fab.

If the intended purpose of an app/group/space is for biological females, does this mean you're happy for transwomen to be excluded? Would you be equally up for telling the transwomen that they are wrong for trying to join and they are setting out just to cause trouble? You enjoy telling off women and you claim to believe that transwomen are women so could enjoy telling those women off too

I'm just reading the guidelines the Australian government wrote to go along with their 2013 law, it could not be clearer what they meant by sex, again you'd have to ask the question why are they saying Tickle is now of the female sex?

"For the purposes of these Guidelines, sex refers to the chromosomal, gonadal and anatomical characteristics associated with biological sex. "

"Gender is part of a person’s personal and social identity. It refers to the way a person feels, presents and is recognised within the community. A person’s gender may be reflected in outward social markers, including their name, outward appearance, mannerisms and dress. 14. Although sex and gender are conceptually distinct, these terms are commonly used interchangeably, including in legislation."

"Transgender/trans The term ‘trans’ is a general term for a person whose gender is different to their sex at birth. "

https://www.ag.gov.au/sites/default/files/2020-03/AustralianGovernmentGuidelinesontheRecognitionofSexandGender.pdf

Was taking a look at the Attorney generals explanatory memo too and thought this bit was interesting
"Right to freedom of thought, conscience and religion or belief
Article 18(1) of the ICCPR provides:
Everyone shall have the right to freedom of thought, conscience and religion. This right
shall include freedom to have or to adopt a religion or belief of his choice, and freedom,
either individually or in community with others and in public or private, to manifest his
religion or belief in worship, observance, practice and teaching.
The importance of the right to freedom of religion is recognised in sections 37 and 38 of the SDA.These sections provide exemptions for religious bodies and education institutions from theoperation of the prohibition of discrimination provisions of the SDA in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

This right manifestly extends to the freedom of religious bodies to organise themselves, including the selection of religious leaders, recognition of members and other religious acts and practices.
These freedoms are expressly recognised in the exemption at section 37 of the SDA. The exemption applies to all grounds protected in the SDA, which will encompass the new grounds introduced in the Bill.
The Bill will extend the exemption at section 38 of the SDA, so that otherwise discriminatory conduct on the basis of sexual orientation and gender identity will not be prohibited for educational institutions established for religious purpose. Consequently, the Bill will not alter the right to freedom of thought, conscience, and religion or belief in respect of the new grounds of sexual orientation and gender identity."

https://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r5026_ems_1fcd9245-33ff-4b3a-81b9-7fdc7eb91b9b/upload_pdf/378454%20.pdf;fileType=application%2Fpdf

To my mind only having the exemption for religious institutions means that religion has been prioritised over belief, didn't see that mentioned as an argument in the judgment, does anyone know if they went down that route?

The judge references Sall's beliefs but doesn't say why her belief is different to a religious organisation having the same belief
"The meaning of “woman”, and whether the applicant can be regarded as one, was a central plank of the respondents’ case. Ms Grover is apparently deeply committed to her beliefs on this subject." "The respondents principally deny any allegation of fact that describes Ms Tickle as a woman or any other allegation which directly or indirectly entails acceptance that this is so. I am satisfied that this reflects a genuinely held belief by Ms Grover and thus by Giggle, rather than reflecting any malice towards Ms Tickle"