All the submissions now available https://www.fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/giggle-for-girls-v-roxanne-tickle
Very interesting. Tickles side arguing that RTs sex is female, and gender identity is female but also trans woman, and that GI consists of both identity and appearance, characteristics and mannerisms, and that a (non-passing) TW may retain appearance, characteristics and mannerisms perceived as male despite them being a woman. Thus they say the comparator would be the treatment of a transwoman with characteristics perceived as not [sufficiently] female vs the treatment of a ciswoman with characteristics perceived as female.
RTs lawyer seems to consider GI as 'trans vs cis'. AHRC considers GI as 'female' but with subgroups of trans and not. I'm not sure if there is anything in this, but conceptually it creates different groups if you actually follow through the logic. If the main categorising of GI is 'trans vs not' it is equivalent to gay, bi, straight, pregnant or not etc like all our other categories. Is it still GI discrimination if TM are included but not TW? Conversely, if the main groupings under GI are m/f (and 'other'?) than at least at the top level, SG and RT share the SAME GI (female), and it is only at the sub-group level they would be distinguishable. I think this is why SGs lawyer made the point that the law accepts special measures to protect for instance one Aboriginal community even if it doesn't help all Aboriginal communities.
This hasn't fully been explored. If you have a clear hierarchy e.g. gay people more likely to be disadvantaged than straight its more clear cut, but if you have sexual orientation = same sex attracted, can subcategories exclude each other (G exclude L)? Given that GI is a separate category to sex, and doesn't have all the exemptions like sex does, if there are potentially a whole list of GIs (trans woman, cis woman, trans man, cis man, non-binary person, maybe genderqueer person, etc - what are the inequalities between all of these categories that the law may seek to rectify?). The only exemption relates to sports. So would a measure for trans people include or exclude non-binary people, and is it discrimination if it does? If 'cis woman' is a free floating gender identity (distinct from sex), is it acceptable to put a measure in place - are they inherently considered purely an 'advantaged group' or do all the historic oppressions and inequalities faced by 'cis women' (voting, pay issues, glass ceiling, sexual abuses etc) mean a measure for them is reasonable?
Given that the argument seems to be that sex is whatever your GI is, it seems a little redundant to include "trans woman" "trans man" etc as separate categories. Our law doesn't go through and list gay men, lesbian women, straight men, straight women etc for any other characteristic. If the groups under GI were "trans, cis, non-binary (& others?)", an app like giggle would exclude ~50% of each category, so I'm not sure they could show discrimination.
SGs lawyers arguments are clearer on paper, although I still don't 100% understand some of the points he was making in court it kind of makes sense. Also the AHRC were pushing the distinction between passing and non-passing, with being a non-passing transwomen (not their words) the focus of the discrimination. So that may be why SGs lawyer focussed on that too.