JuristaFeminista

A legal analysis of Tickle v. Giggle

The recent ruling in the Tickle vs Giggle case  has brought back to the forefront the unusual debate about what it is to be a woman, which took on global dimensions in the last Olympic Games, when the IOC president said that «there is no scientific system to identify a woman.» Although sex is a notorious fact that is the product of a material reality, it is something that can be conclusively demonstrated through a simple DNA sample with a buccal swab.

Despite the factual and scientific evidence of what it means to be a woman, in recent years, the notion of what it is to be a woman has become a dangerously debated issue in Western countries, due to the irrational laws of sex self-determination, which allow men to have the legal consideration of women by their mere will. Not  only do women’s erasure laws, wrongly called ‘trans’ laws, redefine what it means to be a woman and seriously threaten the rights of women and girls, but, as we will see in this article, they end up giving trans-self-identified men more rights than women.  

Tickle vs. Giggle case

Roxanne Tickle is a male-born, legally documented female, who gained public notoriety by suing Sall Grover and her “Giggle for Girls” app after his expulsion from it. During the trial, Tickle insisted that he was a woman because of his gender identity, i.e., his personal perception of feeling female, pointing out that Grover had discriminated against him, causing him various damages, by not treating him as a woman as he claimed. In his request for A$200,000, he alleged that the expulsion, Grover’s statements about it and the questioning that he was a woman had caused him occasional suicidal anxiety.

Grover defended her position by arguing that Tickle was a man and, therefore, since he did not meet the sex requirement, it was justified to deny him access to the Women’s App, admitting that there had been a legitimate exclusion on grounds of sex. Grover based her defense on the fact that, since gender identity is a personal perception, she perceives Tickle as a man, and always will be, given that sex is a biological condition that cannot be chosen or changed, despite the fictionalization of the change of registered sex allowed by the laws that recognize men’s right to be a ‘legal woman’. As Grover indicated, if Tickle were a woman there would be no case, because only men are excluded and only a man would take her to court for her determination to access the App that is promoted as a safe haven, exclusively for women.               

The Australian Federal Court ruled in Tickle’s favor, noting that he had been the victim of indirect discrimination, i.e. he was given less favorable treatment because of his gender identity, as he was unfeminine. And it sentenced Grover to compensation of $10,000 and the costs of the lawsuit. The court based its ruling on the statement that «… Sex is not limited to being a biological concept that refers to whether a person at birth had male or female physical traits, nor is it limited to being a binary concept, limited to the male or female sex.» In other words, it considers that sex can be changed and, in such a case, a ‘legal woman’ has all the rights conferred by ‘her’ condition as a woman.

Australia’s Sex Discrimination Act

Australia’s Sex Discrimination Act (SDA) 1984 prohibited discrimination against women on the basis of sex, which involved comparison with the treatment of men. However, in 2013 it was amended, to include gender identity within discrimination protection, removing the legal definitions of ‘male’ and ‘female’. Having passed a law prohibiting discrimination, equating as categories protected with the same guarantee issues that are incompatible, i.e., sex (being male or female) with gender identity (having the personal perception that one belongs to the opposite sex), the law against sexual discrimination has ended up denying the relevance of being a man or a woman, because sex is a factual matter that is based on biology, and not on the individual perceptions of each person, which is the definition of ‘gender identity’.     

By denying biology, and its factual, binary and immutable character, the judge has denied the reason on which the legal protection of women’s rights is based: sex. As is well known, being a woman means being female of the human species, that is, being a carrier of XX chromosomes, which determine our anatomy and all our sexual characteristics. The biological fact of being a woman is relevant, because our rights are based on sex, as this is the element that makes us vulnerable to oppression and violence. 

In Australia, sex is the category that has constitutional and international recognition, specifically in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which binds the State. Gender identity, on the other hand, is not covered by any international law or the Constitution of this country, so the reform of the law would be vitiated by unconstitutionality for undermining the legal basis for the specific protection of women’s rights. This means that, by including gender identity in the anti-discrimination law, a category that does not exist is being protected, in order to unprotect the category that does exist.

In Tickle’s case, the court has granted him protection against discrimination on the basis of gender identity, since it considers that Grover has given him a pejorative treatment by demanding a requirement that, although it seems the same for all, has the ‘unfair’ effect of falling only on Tickle, as he is the only one who bases his sex on gender identity. And, although it does not say so, the court has also given him protection for indirect discrimination on the basis of sex, inasmuch as its belief that Tickle is a woman is what makes the Giggle for Girls policy, which excludes men, be considered a rule that, although apparently the same for all, it only has an unfair effect on Tickle. This same prerogative would be granted to Tickle if he claimed to be a lesbian, in which case there would be protection against discrimination on the basis of sexual orientation, which was also included in the 2013 reform. As the ruling suggests, with gender identity laws, we become a subcategory of the political subject ‘woman’, where biological women and men considered ‘legal women’ are put on the same level.             

What impact will the Ticklr vs. Giggle ruling have on the outside world?    

The Tickle vs Giggle ruling not only sets a dangerous precedent in Australia, but also has the potential to influence the interpretation of women’s rights at the international level, since in the countries where ‘trans’ laws are in place they have similar rules, which protect trans-self-identified people on the basis of gender identity as well as sex, since the status of registered woman is made for all legal purposes.

This means that the trans-self-identified end up having more protection than women, because our rights are sacrificed or subordinated to those of this minority of the minority, breaking the balance of power that should exist between the majority (women) and the minority (self-identified). In Spain, moreover, the ‘trans’ law reinforces the protection with guarantees of discrimination ‘by mistake’ and ‘by association’, making this a hyper-protected group, which is shielded with hate crimes and exorbitant fines for transphobia (art. 3.e of the aforementioned law).      

By emptying the legal category ‘sex’ of content and meaning, which is where the rights of women and girls are built, ‘trans’ laws not only violate the CEDAW, the Constitutions and the laws that protect women on the basis of our biological reality. But they also have the perverse effect of undermining the foundations on which the rule of law and democracy itself are based, by breaking the balance of power between majorities and minorities, violating legal certainty and compromising all the legal, political and social advances achieved throughout the twentieth century, in order for women to be recognized with the same dignity, treatment, rights and opportunities as men. Due to the serious injustices they cause to women and girls, and the great legal conflict generated by ‘trans’ laws when they collide with the indisputable biological reality of sex, the only possible solution is their repeal.