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!!

Very concerning. Did they want to lose so they could take it to higher appeal??

I hope not, because that is quite a risky strategy. Also I have a feeling that the grounds you argue on limit what you can appeal on higher up.

I've opened the post now, I didn't read properly and I thought you were saying that the post was private and the archive version was paywalled as well. Sorry.

As usual, it's a bit complicated for me to understand all of it on a single read, but Foran is very critical of Giggle's counsel especially. And has criticisms of Sall, too. So now I think you might be right about trying to lose so that it would go to appeal - the aim is to publicise the situation and get public opinion firmly behind a change in the law. Foran also confirms that sex is not a biological category in Australian law. I still don't feel confident about her lawyers arguing in the highest court, though.

No, I wish I felt as confident about her legal team as I did about Ben Cooper QC.

I admit that I felt like that, too, and I felt a bit guilty about it.

I'm a lapsed Catholic - i feel guilty about all kinds of twaddle.

And I also agree that I really hope it wasn't a strategic move by Sall's legal team to lose this court case.

Australia appears to have just over a third of the population of the uk. And spread over big distances.
If we have three times as many lawyers in a significantly smaller space, that increases our talent pool dramatically.

Is that a terrible observation? Am I missing something?
I’m feeling ashamed to say it out loud for fear of being offensive. Such is life.

Foran doesn't seem to have any difficulty in interpreting 'gender identity' as meaning 'transgender or cisgender' (rather than male, female, or neither, which is what I naively expected). So, Tickle has the protected characteristic of gender reassignment, to reword it in English legal parlance.

This must mean that Australia also explicitly protects cisgender people from discrimination, unlike the UK.

Tickle's protected characteristic would be GR in English law, as you say. But even if he had a GRC, he would not be lumped in with women in all circumstances - because English law recognises bio sex, even though legal sex is also a thing.
Gender identity is not a legal concept here. So neither "cisgender" nor "transgender" people are protected on the basis of gender identity.
So it is a very different situation.
"Cisgendered" people might be protected from discrimination in theory in Australia, but in practice what does that mean? Does any "cisgender" woman care if a person of the same bio sex but who claims a special identity is on the other side of the net at her tennis club? Or in the women's changing room? People care about sex, women are discriminated against by being denied spaces/services based on their bio sex because bio sex is not recognised in law. If males who claim to be women were on Sall's app, it would still be a female only space in Australian law. She can only lawfully discriminate against people of what the law calls "a different sex" - people who do not have a female GI, people who do not present as women, people who do not have a certificate saying they're female, etc. Because only those people are not female. And if they're not, they can just change it with a declaration or a certificate or a bit of lippy.

Does Australian law impose a gender identity on everyone? It seems so.

Thanks @NutellaEllaElla, that's a really helpful article.
I can see the constitutional argument much more clearly now.
I'm pretty sure the High Court of Australia only deals with appeals relating to consitutional stuff (all my knowledge of our high court comes from The Castle so I may be missing the finer points of law). So if that's the end point the claims about unconsitutionality of the SDA need to be in there from the first.
I think Asalem will be willing to remain invovled and if she says that our current SDA is incosistent with CEDAW doesn't that mean our federal government can't legislate as it has - because it's overruling the states, but not in a way that involves application of international treaties we've signed up to?
(When I try to speak legalese it comes out very garbled).

For what it's worth, I alerted Sall and she responded to say that she is happy with her legal representation.

I think Asalem will be willing to remain invovled and if she says that our current SDA is incosistent with CEDAW doesn't that mean our federal government can't legislate as it has - because it's overruling the states, but not in a way that involves application of international treaties we've signed up to?
(When I try to speak legalese it comes out very garbled).

I think I understand what you're saying - that the argument will be that the Gillard amendments overruled/changed what was the state law at the time, but the Govt did not have the power to do so because the previous law was based on CEDAW (an international treaty which Australia signed up to) and the changes they made are not based on any international treaty?
Is that what you are saying?

You're saying she knew she was never going to win, @Snowypeaks ? If so, that makes it a harder battle to win in the long-term, if the aim is to change Australian law, surely?

Pure conjecture on my part. And I honestly don't have an opinion on the second bit of your post.

I was trying to say that they couldn't approach it in the same way as we would in the UK because the legal situation is entirely different.

Thanks @Snowypeaks that's what I was trying to say!
If I've understood Foran's explanation of the constitutional section of the judgement that seems like a possible thing to appeal on.
I'm thinking of Reem Alsalem's position paper on the meaning of the word "woman" in CEDAW which she provided to the court during this case at their request.
www.mumsnet.com/talk/womens_rights/5043442-reem-alsalem-the-definition-of-woman

I agree that Sall was never going to win, but I also think that she would not win in the UK either.

In the UK, the relevant protected characteristics are gender reassignment and sex. It's permissible to discriminate to some extent, to serve a legitimate and proportionate aim, including that of balancing the rights of people with different protected characteristics.

Tickle, with a GRC, would allege in/direct discrimination compared with other legal females who don't have the PC of GR. The respondent would have to demonstrate a LAPA (what is it?) and/or show sex discrimination. But women are, arguably, not more disadvantaged than men by the enforcement of mixed sex virtual spaces.

(They are of course more disadvantaged than men by enforcement of mixed sex physical spaces such as changing rooms, as in the NHS nurses' case. But single-sex spaces of this sort usually serve a physical need, which also strengthens the claimant's case. Because someone with the PC of GR may find themselves barred from needed facilities altogether because unwilling to use one room, and unable to use the other: thus they are worse off than people of both legal sexes without the PC of GR (GRC status makes no difference). Third space is the answer.)

illtemperedclavicinist

Bear in mind that the expansive definition of "woman" as bio + legal women is going to be challenged in the Supreme Court. But even with the Haldane/Inner House judgement, you can still discriminate on the basis of sex if it's a proportionate means to a legitimate aim. I agree that it might take a court case to resolve it in cases where the male had a GRC, but in a virtual space where women might be sharing info about sexual assault, for example, it would be easy to show that women's dignity and privacy required it. Once you're on the app you have access to everything. So even though you might not be able to exclude a male with a GRC from an online women's recipe-swapping group or fashion group, I think you would be able to exclude all males from a women-only app which covered everything.

(They are of course more disadvantaged than men by enforcement of mixed sex physical spaces such as changing rooms, as in the NHS nurses' case. But single-sex spaces of this sort usually serve a physical need, which also strengthens the claimant's case.
They also serve non-physical needs - privacy, dignity and safety. So I don't think it would strengthen the British RT's case.

Because someone with the PC of GR may find themselves barred from needed facilities altogether because unwilling to use one room, and unable to use the other: thus they are worse off than people of both legal sexes without the PC of GR (GRC status makes no difference). Third space is the answer.)
They wouldn't be barred altogether, though. They would be permitted to use communal facilities on the same basis as everyone else - their sex. I hate public lavatories, especially on trains. I am not barred from using public toilets. I do not therefore have the right to use the CEO's toilet in a department store. I think a barrister would struggle to make a case for a disadvantage - except, ironically, in the case of an individual with a GRC who had undergone gender reassignment and as a result was indistinguishable from people of the sex they were mimicking. The unicorn, basically. For whom third spaces would be ideal, but would they use them?

but in a virtual space where women might be sharing info about sexual assault, for example, it would be easy to show that women's dignity and privacy required....

Oh yes, good point, this will all be grist to the mill in court if it comes to it! And possession of a GRC will never stop him being male for evidentiary purposes (though you might have to word it as - the women are distressed by the presence of a legal woman, about whom they hold the WORIADS belief, that she is male).

Really, it needs repealing 😠. What times we live in!

@Snowypeaks ETA by third spaces I do indeed mean to include unisex. The important thing is to have some provision for all.

@theilltemperedclavecinist "The respondent would have to demonstrate a LAPA (what is it?) and/or show sex discrimination. But women are, arguably, not more disadvantaged than men by the enforcement of mixed sex virtual spaces."

The app included a flat mate finding function, which Sal was inspired to include because of sexual harrassment. So a case for the single sex virtual space in this case could use data showing that male people with a gender identity don't offend sexually at a lower rate than male people without a genderidentity. (So there's no more or less reason to exclude trans women than other men).
But I'm no longer sure that legal cases deal with facts on the ground, rather than legal precident and legislation, so maybe there would be no point attempting to argue that.

Both you and @Snowypeaks have immediately come up with some very good LAPA/sex discrimination arguments, which makes me a) more optimistic for a hypothetical equivalent English case, and b) wonder what was different about the Australian situation such that these arguments weren't raised.

I think an English judge would give your arguments some weight. The real difficulty is how slow and expensive court cases are: plus each one can only deal with a tiny aspect of the problem. It's like moving a mountain with a teaspoon.

What's different is that Aussie federal law doesn't recognise sex discrimination as we would understand it, because it doesn't recognise bio sex and does recognise gender identity. It's a lesson in what happens if you put GI into law and replace the bio definition of sex with a woo-woo version.

Bear in mind that the expansive definition of "woman" as bio + legal women is going to be challenged in the Supreme Court. But even with the Haldane/Inner House judgement, you can still discriminate on the basis of sex if it's a proportionate means to a legitimate aim.

I would say the Tickle case has demonstrated aptly how a single-sex service in the UK can never be achieved where the definition of "sex" in single-"sex" service means legal/certificate sex.

The aim of such a single-sex service for women can only ever be to provide for women (biological, but not those who hold a GRC) PLUS men (biological who hold a GRC).

Men with GRCs cannot be excluded on the basis of sex because their sex in law is woman (there are no grounds to exclude a woman from a women-only service), and cannot be excluded on the basis of gender reassignment because this has just been shown to be indirect discrimination.

And if anyone thinks there is some way to exclude a man with a GRC on the basis of gender reassignment to achieve a single-sex service for women (biological, which includes women who hold a GRC), then you've just admitted the "sex" in single-"sex" services, is defined in the Act in terms of biology, and not legal sex.

Not quite.

It's still not entirely legally settled that sex means biological sex alone. There was talk about clarifying this in law before the election because of this gap and there are continued rumbling about having this explicitly laid out in law. To date rules have implied this rather than explicitly said it. Thus it is leaving matters open to interpretation by Stonewall guidance which hasn't fully been tested by law. It's complex and whilst we have exceptions based on sex it's not fully clear to what degree you can apply them and where they are not applicable.

So as it stands we have a situation of in effect implied understanding of the law rather than a explicit definition and understanding.

Each new court case seems to push us closer to that point though.

And ultimately why is the Equality Act written to have protected characteristics of sex AND of gender reassignment if when you reassign your gender, you change sex? There would be no need to make such distinction and you would use the word gender instead of sex.

What we are seeing is a trend for bodies like councils to use the word gender not sex in their diversity and equality policies but this doesn't actually reflect the law (and arguably is indirect sexism as a result as it disproportionately disadvantages women). But until we get that crucial ruling or parliament explicitly changes the law, we are still in something of a limbo land.

However this limbo land still remains infinitely better than countries where the word sex has been removed and replaced by gender as in effect women have lost their sex based protection.

Every subject has some esoteric content when studied in depth, but these cases highlight how fubarred the language of law has become.

The law that defines the boundaries that we accept as a society.

English is my first language, I have a good grasp of it and can usually express ideas clearly. Language evolved for this purpose

The convolutions of logic you need to go through to define women are a perfect example of the erasure and silencing of our sex class. We are the ones whose existence is under threat.