Shame of the Week Award, Episode 84

An Australian Court Rules "Sex is Changeable"

Many of our subscribers are familiar with yesterday’s disastrous landmark court ruling in Australia that women’s only spaces must admit men who identify as women. “[I]n its contemporary ordinary meaning, sex is changeable” concluded the trial judge, and “sex is not confined to being a biological concept.”

This was a test case for whether women would remain a protected sex class. The answer is no. Sex no longer defines the class. Anyone can join by declaring themselves to be a woman. The judge’s Orwellian conclusion is that men who self-identify as women, must be protected from discrimination under a law designed to protect women.

At the center of this high-profile case was an online app available only to women and girls, but the verdict’s broad language could apply equally to physical spaces such as women’s changing rooms, athletics, even women’s only domestic violence and abuse shelters or prisons.

The judge’s findings that gender is a personal preference rather than a product of nature and biology could have implications far beyond Australia and is why it is being celebrated widely by trans activists. The ruling, for instance, would have made mute the recent controversy about the biological sex of the Taiwanese and Algerian boxers who won gold medals at the Paris Olympics.

The facts of the case seemingly are straightforward.

Sall Grover, a screenwriter, launched an online app in 2020.

The then 35-year-old Grover had “a conversation between me and my Mum. I had recently returned from almost ten years in Hollywood, where I had experienced everything the Me-Too Movement represents. It was my Mum who said, ‘There needs to be a way for girls to help girls!’ We decided that we would create an app despite having no idea how to do that.”

Grover called her app Giggle, a collective noun for a group of girls and its mission was to create an international online community for girls and women where they could safely meet other women for freelance work, finding roommates, holiday companions, sharing car rides, maybe even partners.

By serendipity, Covid had started the lock downs in Australia and many other countries in the summer of 2020. Online connection apps like Zoom boomed. In seven months, Grover had raised $500,000 and Giggle was launched. By August 2020, it was in 84 countries and had twenty thousand women and girls as members.

Grover and her team enforced what they thought was a simple rule. They rejected the online applications of men who applied to join Giggle.

One of the men who applied in 2021 was a transgender woman who had three years earlier gotten a revised birth certificate that listed him as a woman named Roxanne Tickle.

So many women were joining the app that Grover and her team used AI to scan the selfies sent along with new applications. Artificial intelligence ‘approved’ Roxanne Tickle’s selfie as a woman. It was not until Grover later personally reviewed the application that she rejected it.

Tickle filed a legal challenge claiming unlawful discrimination and cited international human rights conventions to which Australia is a party. The suit also relied heavily on Australia’s 1984 Sex Discrimination Act, a law that protected women who faced inequality or discrimination based on their sex. In 2013, Australia’s Labour government amended the Sex Discrimination Act and removed the biological definitions of men and women and replaced them with gender identity (the Prime Minister at the time was a woman, Julia Gillard).

The discrimination lawsuit filed by Tickle was the first case in which the courts faced the question of whether biological sex was still protected in Australia.

Grover contested the constitutionality of the 2013 gender amendments and argued that Tickle was not a woman, sex is unchangeable, and it was appropriate to block Tickle from joining Giggle to preserve a women’s-only space.

The case attracted international attention. Trans activists rallied to Tickle’s support and Sall Grover was outspoken about the case’s larger implications: “It is ‘what is a woman’ case,” she told one interviewer, “it’s the most important woman’s rights case in Australian modern history, we are fighting to ensure that female is a sex class in law that men cannot identify into.”

Grover’s activism drew support from some prominent women, including J.K. Rowling and Martina Navratilova, but also made her a target of merciless social media trolling and dismissive coverage from progressive news outlets such as The Guardian, the Australian Broadcasting Corporation, and the BBC.

Grover had to suspend her Giggle app in 2022. There were financial pressures as well as increasing malware attacks on the site. She promised to get it back up but so far that has not happened. Still, she continued to fight the discrimination lawsuit from Roxy Tickle.

This past April, Grover told an interviewer that, “If you’ve got a man in a female only space, you’re dealing with someone who has no respect for boundaries. You’re already dealing with a predator. Good men don’t go into female spaces. Female spaces exist to protect us from the men who want to go in.”

In April of last year, Robert Bromwich — the same judge who issued the latest verdict — granted permission for Tickle to bring the case personally against Sall Grover. In June 2023, Bromwich gave a preliminary ruling that allowed the case to move forward and rejected motions for dismissal (few knew that Bromwich’s father was a noted surgeon, someone who might have contested his son’s view that gender identification trumped biology).

As the case continued, the legal costs were threatening to put Grover into bankruptcy. Grover decided to crowdfund the litigation and raised nearly $600,000AU of an estimated $850,000AU in legal costs. Grover also promised that if any money was left over at the end of the final appeal, she would “donate those funds to other gender critical crowdfunders and causes. I will not keep any of the funds raised.”

On the crowdfunding page, it notes that “The decision by the Federal Court will have far-reaching implications, likely influencing not only the Australian legal system but also international law and policy regarding the intersection of gender identity and sex-based rights. It will serve as a crucial reference for future legal frameworks and discussions on sex discrimination and sex-based rights, and their direct conflict with gender-identity ideology worldwide.”

Yesterday’s ruling was a total disaster for biological women. The judge ruled Grover and her women’s only app “had engaged in indirect gender identity discrimination against the applicant.”  As for the question on everyone’s mind – what is a woman? – the judge ruled that all that was required was that a man “identifies and is legally recognized as a woman.” The legal recognition in this case was the revised birth certificate issued by the Queensland Register with a female sex marker.

Roxy Tickle had undergone in 2019 extensive gender surgery. That, however, was not an important issue for the judge. In the ruling, surgery or hormones are not necessary for a man to be protected from discrimination as a self-identified woman.

Adding insult to injury, the judge awarded Tickle A$10,000 in damages plus legal costs.

Tickle was jubilant after the verdict, telling reporters outside the courthouse “I hope it is healing for trans and gender diverse people. The ruling shows that all women are protected from discrimination. I brought my case to show trans people that you can be brave, and you can stand up for yourself.”

Grover said little after the ruling, tweeting only “Unfortunately, we got the judgment we anticipated. The fight for women’s rights continues.”

Grover has previously said she would appeal any adverse decision, all the way if necessary to Australia’s High Court. She must.

The opinion of a single male judge, with such wide-ranging repercussions for women everywhere, cannot be allowed to stand.