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Tickle v Giggle decision Friday 23 August

428 replies

Wearingmybluejumper · 21/08/2024 07:12

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!!

Tickle v Giggle decision Friday 23 August
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13
AnotherCrazyCatLady · 29/08/2024 10:33

In my view, Michael Foran is absolutely right in his criticism of the legal strategy of Grover/Giggle.

They presented three weak arguments: on the discrimination claim itself (where they took an approach that simply did not map onto the words of the statute); on the constitutionality of the reform of the Act that added gender identity (extremely hard to get over the line, given High Court authority); and on the question of whether Giggle is a trading corporation.

And they did this while NOT relying on other parts of the statute that contain (in essence) instances where discrimination is lawful!

I'm shocked that they didn't plead these. I cannot estimate the likelihood of success, but at least they were open on the words of the statute. Perhaps I'm being unfair, but I think the approach taken by the legal team was bordering on professional negligence.

If they are going to run an appeal on exactly the same points then I think the chances they'll win are tiny (and as Michael has pointed out on X, those crowdfunding it need to know this - I personally would not provide any financial support unless I knew they could change their arguments).

HPFA · 29/08/2024 11:37

Snowypeaks · 28/08/2024 07:45

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.

His legal argument is way over my head (although I'm sure given his reputation it's entirely correct) but it's clear he has serious ethical concerns over the case.
If the team deliberately made their case for maximum publicity knowing they would almost certainly lose shouldn't this have been made clear in the crowdfunder? If we're going to criticise the GLP for taking money for hopeless cases we should be consistent.

Snowypeaks · 29/08/2024 11:47

RedToothBrush · 29/08/2024 09:27

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.

Show quote history

Interesting.
But I am aware of the currently unsettled meaning of sex in the EA2010 - see the posts you replied to. 🙂
Whether sex includes legal sex or not, it definitely always means bio sex.

If the Supreme Court decides that sex in the EA always means bio+legal sex except where bio sex only is explicitly indicated (we both agree that would be mad, but it is a possibility), we will still be in a better position than women in Australia because Sex will still have a proper definition, GI is not GR, and the characteristics of GR and Sex will not have been conflated.
I think - hope - there would be a public outcry if the SC did confirm the Inner House judgement, but you never know. I'm just praying the judgement goes out way.

LilyBartsHatShop · 29/08/2024 13:25

I'm hoping the Supreme Court asks for clarity in the law - but that is for entirely selfish reasons.
I think the best outcome for us in Australia would be if your Labour government clarified sex=bio sex in legislation. Our federal Labor government would definitely sit up and take notice of that.
Relatedly, I hope the Tories elect Badenoch as leader and she gains ground with centrist voters by taking a sex realist, women-defending position. Our federal Liberal party would sit up and take note of that - currently they are battling it out with our equivalent to Reform for the definitely-not-centrist votes.

Snowypeaks · 29/08/2024 14:30

That's interesting, LilyBartsHatShop.
Australian politicians would be influenced by what the British do? I have to say I'm surprised. I can't even say I hope this is the case because it depends completely on what direction Labour goes in. Which doesn't look good at the moment. And as for the Tories...who knows who they'll choose to lead them. I don't think it's as big an issue for the party in general, either way - lukewarm about women's rights but not GI ideologues either.

Snowypeaks · 29/08/2024 14:33

HPFA · 29/08/2024 11:37

His legal argument is way over my head (although I'm sure given his reputation it's entirely correct) but it's clear he has serious ethical concerns over the case.
If the team deliberately made their case for maximum publicity knowing they would almost certainly lose shouldn't this have been made clear in the crowdfunder? If we're going to criticise the GLP for taking money for hopeless cases we should be consistent.

Show quote history

We don't know that. As I said, it's conjecture. Tickle's counsel was very poor as well. I was shocked by the standard of both.

TheSandgroper · 29/08/2024 15:47

It’s highly unlikely that the Labor party, who are currently in government, will change the law. They are A) beholden to the Greens anyway and B) are desperately seeking to hold seats at the election next year that look like they will go to the Greens, and the Greens are very much TWAW. Changing the law that they brought in is a boat that won’t be rocked.

NutellaEllaElla · 29/08/2024 16:32

AnotherCrazyCatLady · 29/08/2024 10:33

In my view, Michael Foran is absolutely right in his criticism of the legal strategy of Grover/Giggle.

They presented three weak arguments: on the discrimination claim itself (where they took an approach that simply did not map onto the words of the statute); on the constitutionality of the reform of the Act that added gender identity (extremely hard to get over the line, given High Court authority); and on the question of whether Giggle is a trading corporation.

And they did this while NOT relying on other parts of the statute that contain (in essence) instances where discrimination is lawful!

I'm shocked that they didn't plead these. I cannot estimate the likelihood of success, but at least they were open on the words of the statute. Perhaps I'm being unfair, but I think the approach taken by the legal team was bordering on professional negligence.

If they are going to run an appeal on exactly the same points then I think the chances they'll win are tiny (and as Michael has pointed out on X, those crowdfunding it need to know this - I personally would not provide any financial support unless I knew they could change their arguments).

I fear I agree. I don't regret the tenner I donated but kinda wish she'd review her legal representation.

Bookery · 30/08/2024 08:51

SensibleSigma · 28/08/2024 08:11

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.

It's true that there are a lot more people (and more lawyers) in the UK, but that doesn't necessarily mean that the average UK lawyer is much better-educated (the legal education system is different, but that should perhaps be discussed in another post) or better-equipped to deal with complicated legal matters than their Australian counterpart.

Depending on the nature of the lawsuit, however, when there are far more well-qualified lawyers one might have a higher chance of retaining legal representation from those who are both sharp-minded and have vast experience in highly specific fields, which include human rights law in the context of the constitutional law.

Some legal commentary suggesting that Giggle's legal team failed to consider certain important angles is interesting, though at this point we wouldn't be able to know with certainty whether that is true or, if true, how much of it has impacted the outcome of this ruling and potentially affect the upcoming appeal; I can only say that I hope Giggle is contemplating seeking advice from different experts as well, if necessary.

Bookery · 30/08/2024 12:05

Bookery · 30/08/2024 08:51

It's true that there are a lot more people (and more lawyers) in the UK, but that doesn't necessarily mean that the average UK lawyer is much better-educated (the legal education system is different, but that should perhaps be discussed in another post) or better-equipped to deal with complicated legal matters than their Australian counterpart.

Depending on the nature of the lawsuit, however, when there are far more well-qualified lawyers one might have a higher chance of retaining legal representation from those who are both sharp-minded and have vast experience in highly specific fields, which include human rights law in the context of the constitutional law.

Some legal commentary suggesting that Giggle's legal team failed to consider certain important angles is interesting, though at this point we wouldn't be able to know with certainty whether that is true or, if true, how much of it has impacted the outcome of this ruling and potentially affect the upcoming appeal; I can only say that I hope Giggle is contemplating seeking advice from different experts as well, if necessary.

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*would potentially affect

NutellaEllaElla · 30/08/2024 16:12

TheSandgroper · 30/08/2024 12:32

I’ve watched a few post decision discussions and like this one the best

https://m.youtube.com/watch?v=0e4CD13hRUs&pp=ygUYTWVnYW4gbXVycGh5IHNhbGwgZ3JvdmVy

Thanks I just watched it, there’s not much new info from other podcast interviews she’s done so I still have concerns about her legal representation.

by the way, any ideas why Meghan Murphy was wearing that t shirt? Strange slogan, no??

StealthSpinach · 31/08/2024 08:48

NutellaEllaElla · 30/08/2024 16:12

Thanks I just watched it, there’s not much new info from other podcast interviews she’s done so I still have concerns about her legal representation.

by the way, any ideas why Meghan Murphy was wearing that t shirt? Strange slogan, no??

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Quite an offensive slogan on the tshirt - I don’t care if the word has been “reclaimed” as per queer, etc (although I haven’t heard of such a reclamation), I think it is an extremely poor choice.

NutellaEllaElla · 31/08/2024 09:56

Bizarre choice, yes!

UtopiaPlanitia · 04/09/2024 23:43

Perhaps, given the social situation in Australia being more pro-gender identity than in the UK, Sall is unable to get representation from a more experienced or a specialist barrister. In the early days of cases in the UK, it was great that Anya Palmer, Ben Cooper and Naomi Cunningham were happy to be involved in accepting cases from solicitors but, apart from perhaps Akua Reindorf also being involved in this area, I can't think of any other barristers that are happy to take on GC cases at any level.

In all the interviews I've seen her in, Sall has always said that the case would go to an appeal: if Sall won, Tickle would appeal and if Sall lost, she would appeal.

DrBlackbird · 05/09/2024 21:28

Harassedevictee · 05/09/2024 20:22

Thank god for Reem Alsalem. There are precious few advocates in multilateral global institutions still standing up for women and girls.

NutellaEllaElla · 06/09/2024 11:13

Snowypeaks · 05/09/2024 17:54

The link doesn't work ☹️

UtopiaPlanitia · 04/10/2024 01:11

Hurrah! Let the fight back begin!

miri1985 · 04/10/2024 02:18

Fair play to Sall for continuing the fight!

Was thinking about this case the other day, if women can't have spaces without transwomen in Australia, can transwomen have spaces without women? For example these support groups funded by the State https://gendercentre.org.au/support-groups if a "cis" woman (using the terminology the judge did) or a bio transwoman were to go along to one of the support groups for what they call "trans females" turning them away would be discrimination based on the ruling.

Snowypeaks · 04/10/2024 02:22

I think they can have spaces without women - special measures (MCW being so oppressed) on the basis of their transgender identity?

IANAL and IAdefinitelyNAL familiar with Australian anti-discrimination law.

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