After Giggle v Tickle

What the Final Judgment Leaves Behind for Women and Girls in Australia

The litigation is over. The deeper contest over biological sex, gender identity and female-only boundaries is not.

When I first began writing about Tickle v Giggle, I didn't know where the case would eventually lead. What began as a dispute over access to a women-only social media app became a sustained examination of how Australian discrimination law understands sex and gender identity, how those protected characteristics interact, and what legal room remains for women who want to organise services or spaces around biological sex. The longer I have followed the issue, the less convincing it has become to treat each development as an isolated dispute.

The litigation itself has now reached its endpoint. On 15 May 2026, the Full Court of the Federal Court dismissed the appeal brought by Giggle for Girls and its founder, Sall Grover, while allowing Roxanne Tickle’s cross-appeal. The Court set aside the earlier declaration of indirect discrimination and substituted findings of direct discrimination on the ground of gender identity. Compensation was increased from $10,000 to $20,000, comprising $12,000 in general damages and $8,000 in aggravated damages. The aggravated component reflected aspects of Grover’s courtroom conduct and public commentary that the Full Court regarded as worsening the hurt caused by the discrimination.

On 10 September 2026, the High Court refused special leave to appeal, with costs. That was not a full High Court hearing on the merits, and it should not be reported as though the High Court settled every contested question raised by the litigation. Its short disposition did, however, say there was “no reason to doubt” the Full Court’s construction of s 7D(1) and (2) of the Sex Discrimination Act 1984. The practical position is now clear: there will be no further appeal in this case, and the Full Federal Court judgment stands.

For Grover, the consequences are no longer merely legal. Following the special-leave refusal, Grover told 7NEWS that she would be “leaving Australia”, saying there was “no respect for the government, institutions or judiciary”, while also saying there may “one day” be a return. I do not treat that decision as proof that Australia has suddenly become unsuitable for women and girls. One person’s departure cannot carry that evidentiary weight. But I also do not think it should be brushed aside as irrelevant after years of litigation over whether a service may draw a boundary around biological sex.

My concern is about trajectory rather than inevitability. Across my work on institutional power, governance creep, gradualism and permeation, I have repeatedly asked what happens when individually defensible changes accumulate until the practical starting point has moved. Giggle v Tickle now sits squarely inside that concern. For traditional Christians, and for many non-Christian Australians who regard sex as an objective biological reality, this case is another real-world test of whether biological sex remains a legally usable category when gender identity points in a different direction.

What actually happened

The facts matter because public discussion around this case has often collapsed into slogans. The Full Court judgment records that Roxanne Tickle was designated male at birth, began identifying as a woman around 2017, underwent gender-affirming surgery in October 2019, and in September 2020 obtained a Queensland birth certificate recording sex as female. In February 2021, Tickle registered for the Giggle app by uploading a selfie. The platform used artificial-intelligence software designed to distinguish facial features associated with women and men, and the photograph passed that initial assessment.

Giggle had been conceived as a women-only online space. Anyone seeking to use the app’s features had to register and upload a photograph intended to verify eligibility. Several months after Tickle joined, access was restricted following human review. Attempts to regain access ultimately failed. Grover’s position was that the platform was for females and that its boundary could be drawn according to sex at birth.

Tickle brought proceedings under the federal Sex Discrimination Act 1984. Parliament had substantially amended that Act in 2013 to add sexual orientation, gender identity and intersex status to the federal discrimination framework. The statutory definition of gender identity included a person’s gender-related identity, appearance, mannerisms or other gender-related characteristics, whether by medical intervention or not, “with or without regard to the person’s designated sex at birth”.

Parliament did not merely protect an internal sense of identity. It expressly protected gender-related appearance and characteristics without making sex at birth determinative. Thirteen years later, those words sat at the centre of the Full Court’s reasoning.

The 2024 judgment

On 23 August 2024, Justice Bromwich found that Giggle and Grover had unlawfully discriminated against Tickle, but characterised the conduct as indirect discrimination rather than direct discrimination. In broad terms, indirect discrimination concerns a condition, requirement or practice that disadvantages people sharing a protected characteristic, while direct discrimination concerns less favourable treatment because of the protected attribute itself, or because of characteristics associated with that attribute.

The first-instance court did not accept the direct-discrimination case as then advanced, including because Grover did not know, at the point of the initial visual review, that the person in the photograph identified as transgender. The court nevertheless found unlawful indirect gender-identity discrimination and awarded $10,000. Giggle and Grover appealed, while Tickle cross-appealed. In May 2026 the Full Court changed both the legal characterisation of the conduct and the damages outcome.

What the Full Federal Court changed

The Full Court, comprising Justices Perry, Abraham and Kennett, dismissed Giggle’s appeal and allowed Tickle’s cross-appeal. Its formal orders declared that Giggle and Grover had engaged in unlawful direct discrimination on the ground of gender identity when Tickle was excluded and later refused readmission on the basis of gender-related appearance. The declaration compared that treatment with a person designated female at birth seeking access to the app.

A significant part of the reasoning concerned the statutory meaning of “gender identity”. The Court held that the term is not confined to a person’s internal sense of self. Under the wording Parliament enacted, it extends to gender-related appearance, mannerisms and other gender-related characteristics.

Actual knowledge that Tickle identified as transgender was therefore not a necessary precondition to direct discrimination under the relevant limbs of s 5B. That matters because a judgment about a face, appearance or other sexed characteristic can, under this statutory framework, become legally characterised as discrimination on the ground of gender identity.

What did the Court mean by “woman”?

This is where the judgment deserves more precision than either side of the public debate has sometimes given it. The Full Court was unanimous on the outcome, but the judges did not travel by an identical route on every question concerning “sex” and “woman”.

Justice Perry considered it unnecessary, for the special-measures argument, to resolve Giggle’s Ground 2 challenge to the primary judge’s broader reasoning about the meaning of sex. Justices Abraham and Kennett went further because their direct-discrimination analysis required them to confront the comparator question.

In their joint reasons, Justices Abraham and Kennett concluded that the evidence established that Tickle was a woman within the ordinary meaning of that expression for the purposes of the case, and said that where “woman” appears in the SDA, or where womanhood matters to its operation, it is not to be understood by reference to a “narrow or rigid conception of femaleness”.

That is a significant statutory conclusion, and I do not minimise it. But it remains a conclusion reached in construing this particular Commonwealth Act in this particular legal context. It is not a universal judicial definition governing every area of Australian law, biology, medicine, sport or social life.

That distinction is important to my argument. I do not need to exaggerate the judgment in order to be concerned by it. The more serious point is that Parliament’s 2013 language has now produced an appellate judgment in which two judges expressly treated a person designated male at birth as a woman for the purposes of the Act, while the Court as a whole held that exclusion from a women-only service constituted direct gender-identity discrimination.

The special-measures argument

Giggle also relied upon s 7D of the Act, the provision dealing with special measures intended to achieve substantive equality. The argument was that a service established specifically for women could constitute a special measure aimed at achieving substantive equality between men and women, and that the measure should therefore be protected from the gender-identity discrimination claim.

The Full Court rejected that construction. In substance, the judges held that a special measure directed toward substantive equality between men and women does not thereby switch off the separate prohibition on discrimination on the ground of gender identity. The Court did not need to decide that every women-only service is unlawful, nor did it need to determine that a service like Giggle could never be directed toward women’s substantive equality. It decided how s 7D interacts with the separate protected attributes listed in the Act.

This part of the judgment is not beyond legal debate. Associate Professor Neil Foster has argued that the Court’s “distributive” reading of s 7D fails to give adequate effect to the provision’s enacted text, describing the issue as the “most obvious and glaring” problem in the reasoning. Professor Paula Gerber takes the opposite view, arguing that the judgment properly gives effect to the structure and objects of the modern SDA and protects both transgender people and women.

The High Court has now declined special leave on the s 7D construction, so the Full Court’s interpretation stands. The disagreement nevertheless matters because it shows that the statutory architecture is not philosophically self-explanatory merely because litigation has ended.

What the case did not decide

This is one place where both supporters and critics of the judgment need restraint. Giggle v Tickle did not determine every dispute concerning toilets, change rooms, prisons, sporting categories, domestic-violence refuges, schools, accommodation, healthcare or private associations. Nor did the High Court conduct a full merits appeal and endorse every proposition advanced in the Full Court reasons.

The Sex Discrimination Act still contains exceptions, exemptions and context-specific provisions. Section 32 deals with services whose nature is such that they can only be provided to members of one sex. Section 39 concerns voluntary bodies. Section 42 expressly permits exclusion on the ground of sex, gender identity or intersex status from competitive sporting activity where strength, stamina or physique are relevant, subject to the qualifications in that section. Section 44 allows the Australian Human Rights Commission to grant exemptions.

Facts and statutory context still matter, but caution works both ways. It would be equally misleading to dismiss the judgment as affecting only one unusual and now-defunct app. Section 22 operates broadly in relation to goods, services and facilities, and gender identity is expressly protected.

The precedent now forms part of the legal environment in which future female-only services will obtain advice, write policies and assess risk. The question is not whether every future challenge will succeed, it is whether the starting point has moved.

I believe it has.

The courts applied words Parliament enacted

There is another point I do not want to evade. The judges did not invent s 5B or write the 2013 definition of gender identity. Parliament did that. Courts were then required to interpret the statutory language when a real dispute arrived before them. I may question aspects of the Full Court’s reasoning, and legal scholars plainly disagree about parts of it, but institutional accountability requires the responsibility to be placed where it belongs.

If Australians conclude that the present Act gives inadequate protection to legitimate female-only boundaries, the democratic question belongs squarely before Parliament. It is Parliament that can review how sex, gender identity, special measures and exemptions interact.

Criticism of judicial reasoning is legitimate; treating judges as though they alone created the legal architecture is not. For me, that distinction strengthens rather than weakens the gradualism argument, because it forces attention back onto the sequence by which concepts became law in the first place.

Sall Grover leaves

This brings me back to Sall Grover. After the special-leave refusal, Grover announced an intention to leave Australia.

A woman created a service specifically for females. That boundary generated years of litigation. The first-instance court found indirect gender-identity discrimination. The Full Court replaced that declaration with direct-discrimination findings, increased the damages award and ordered appeal costs. The High Court refused permission for a further appeal. Grover has now concluded that leaving Australia is preferable to remaining here at this stage.

That sequence does not prove that Australian women have lost their rights, and it does not prove that Australia is presently unsuitable for biological women and girls. But after a case of this significance, the departure of the woman who created the service is not nothing. It is a human consequence sitting at the end of a legal pathway, and it deserves to be weighed alongside the law rather than dismissed because it is inconvenient to the preferred narrative of either side.

How did we arrive here?

Readers who have followed this series will know that Giggle v Tickle has never stood alone in my writing. In What Is a Woman? I began with what should have been the simplest question: whether institutions remain capable of speaking plainly about biological sex while still extending dignity and compassion to people experiencing gender dysphoria.

In Who Shapes the Child? I examined academic arguments challenging the traditional understanding of parental authority and asked what happens when responsibility moves away from parents and toward institutions. My concern was not that every school or policymaker is hostile to families. It was that reducing parental authority cannot create a neutral space. Somebody else necessarily occupies it.

In From Philosophy to Federal Court I followed ideas about sex and gender from academic and philosophical argument into advocacy, the 2013 amendments to federal discrimination law and ultimately the litigation that became Giggle for Girls Pty Ltd v Tickle. That piece crystallised a principle that has stayed with me: ideas have destinations.

In Who Funds the Redefinition of Sex? I followed the institutional infrastructure behind advocacy in this field, including international philanthropy, legal and policy organisations, and the networks through which sexual-orientation and gender-identity frameworks have been developed and promoted. Funding does not make an argument false. But resources matter because ideas require research, organisations, lobbying, litigation and sustained institutional access if they are to become durable public policy.

Then, in Who Targets the Church? I examined what happens when newly established discrimination protections begin colliding with older freedoms. The series documented advocacy directed at religious exemptions and the institutional protections that allow Christian schools, churches and organisations to remain meaningfully Christian in their employment and community life.

The point across those pieces was never that one event proved a master plan. It was that a documented sequence of advocacy, funding, legislative reform and institutional pressure could be followed without inventing hidden connective tissue.

Gradualism and permeation

My later research into Fabian socialism gave me useful vocabulary for something I had already been observing. In Who Must Justify Their Existence? I examined the historical Fabian preference for gradual reform rather than revolutionary upheaval, and the related concept of permeation: carrying ideas through existing political parties, universities, councils, professional networks, administrative institutions and other established structures rather than relying upon one dramatic seizure of power.

I am not calling transgender advocacy a Fabian project. I am not alleging that academics, philanthropists, politicians, judges and advocates gathered together and designed the precise sequence that ended in Giggle v Tickle. That would go beyond the evidence, and it is not necessary to my argument. Gradualism and permeation describe methods and effects that are much broader than Fabianism itself.

At the same time, I do not think intellectual honesty requires me to pretend that the historical connections I have encountered in this research are irrelevant simply because they do not prove causation. 

The 2013 amendments that inserted gender identity into the federal Sex Discrimination Act were introduced on 21 March and passed both Houses by 25 June, while Julia Gillard was Prime Minister. Gillard had previously delivered the Australian Fabians’ 2005 Jim Cairns Memorial Lecture, and in a 2007 ABC interview acknowledged having worked in her twenties for Socialist Forum, which she said subsequently amalgamated with the Fabian Society. None of those facts establishes that Fabian influence caused the 2013 legislation, and I do not present them as though they do.

The broader institutional relationship is nevertheless part of the public record. The Australian Fabians currently describe one of their purposes as influencing the ideas and policies of political parties, “especially the Australian Labor Party”, and describe their relationship with Labor governments as that of a “critical friend”.

In a 2017 address to the Fabians, then NSW Labor deputy leader Michael Daley went further, describing Fabianism as having advocated a distinctive form of Labor politics based on “gradualism, reformism and democratic advocacy”, while referring to more than a century of shared history. These are not descriptions imposed by political opponents; they come from the Fabians and Labor figures themselves.

That matters to me because an increasing amount of my writing has examined not merely individual Labor policies, but the broader growth and reach of governance, the movement of ideas through institutions, and the distance that can emerge between a policy’s original justification and its eventual consequences.

A documented relationship is not proof of a coordinated agenda. But neither should the absence of proof of coordination require us to treat documented relationships, shared intellectual traditions and recurring methods of institutional change as though they are unworthy of examination. 

My interest remains in what can actually be demonstrated: where ideas develop, which institutions carry them, how they enter law and policy, and what happens once they become embedded.

I am not describing a plot. I am describing a process that does not need a plot. An idea enters academic and advocacy language. The idea enters legislation. The legislation enters a courtroom. The judgment then enters legal advice, compliance templates, board decisions and institutional risk management. A boundary that once required little public justification may, in some contexts, come to require a legal exception, an exemption or years of litigation. That is how institutional change can become social reality without any single moment carrying the whole weight of the transformation.

For me, this is precisely why Giggle v Tickle matters beyond the parties. It is not evidence that every female-only space will be lost. It is evidence that one important part of the legal architecture has now been tested at appellate level, and that gender identity can prevail over a female-only boundary in a public-facing service where no applicable exception or exemption protects that boundary.

After years of following the surrounding philosophy, advocacy, funding, legislative history and institutional relationships, I no longer think it is adequate to examine each development as though it exists entirely in isolation from the others.

Then came the Lesbian Action Group

If Giggle stood alone, it would still deserve careful attention. But the Lesbian Action Group litigation now places the tension into unusually sharp relief. I wrote about the case when Justice Mark Moshinsky handed down judgment on 15 April 2026 in A Christian Reflection on the Lesbian Action Group Judgment.

LAG sought a five-year exemption under s 44 of the same Sex Discrimination Act so it could hold public events for what it described as “lesbians born female only”. Justice Moshinsky’s judgment records that, without an exemption, the Group would be at risk of contravening s 22 of the Act.

I do not share LAG’s sexual ethic. My Christian understanding of marriage and sexuality is very different. But if my concern is genuinely about biological sex rather than political allegiance, consistency requires me to recognise what is happening. These are female homosexual women saying that sex matters to their association with one another, and current federal discrimination law puts a public-facing version of that boundary into legal contest.

The Australian Human Rights Commission refused the exemption, and the Administrative Review Tribunal upheld that refusal. LAG appealed. Justice Moshinsky allowed the appeal, set aside the Tribunal’s decision and remitted the matter to a differently constituted Tribunal for determination according to law. He found legal error in the Tribunal’s construction and application of the exemption power and in its treatment of the Commission’s statutory human-rights duty.

The Court did not grant the exemption itself. Nor did it determine LAG’s broader Ground 3 argument that “sex” in the Act means biological sex and that the Act gives priority to members of the female sex. Having upheld Grounds 1 and 2, Justice Moshinsky expressly said it was unnecessary to consider Grounds 3 and 4.

The precision matters, but so does the picture that remains. One woman operated a female-only service and ultimately lost a gender-identity discrimination case. Another group of biological women is asking the legal system for an exemption so it can hold public events restricted to females. Neither case tells us what happens in every other setting. Together, however, they expose a tension that can no longer be dismissed as hypothetical.

When a female-only boundary requires an exemption

This is the point at which my concern becomes stronger. I do not claim that the law has abolished sex. It has not. The Act itself continues to contain provisions that recognise sex can matter. But in a public-facing setting such as LAG’s proposed events, a female-only boundary can now place the organiser in the position of needing an exemption from the federal discrimination framework. In Giggle, a female-only boundary in a service was held to be directly discriminatory on the ground of gender identity.

It would be naïve to assume that an important appellate precedent will remain sealed inside one defunct social-media app. Appellate judgments are applied. Lawyers test their reach. Advocacy organisations identify new fact patterns. Insurers, boards, schools, charities, businesses and sporting organisations receive legal advice and often change behaviour before anyone files a claim. A small organisation does not need to lose in the Full Federal Court to feel the effect of precedent; sometimes the cost and uncertainty of becoming the next case are enough.

That is institutional permeation in ordinary clothes. It does not require malicious complainants or corrupt officials. It requires only a legal incentive strong enough to make the safest organisational choice different from the choice that would otherwise have been made. The practical question is therefore not only what courts prohibit after litigation. It is what institutions stop doing because litigation has become foreseeable.

And what of girls?

Adults can litigate. Children cannot. That is where this question becomes more serious for me. The current Sex Discrimination Act itself demonstrates that biological and embodied differences have not vanished from law. Section 42, for example, expressly permits exclusion on the ground of sex, gender identity or intersex status from competitive sporting activity where strength, stamina or physique are relevant, subject to the section’s listed qualifications. Parliament has therefore already recognised that embodied differences can matter in at least some settings.

But Giggle v Tickle does not decide school bathrooms, girls’ change rooms, shelters, prisons or every sporting question, and I will not pretend that it does. My concern is instead about the direction of institutional reasoning. If gender identity increasingly becomes the legally safer starting point while sex becomes the boundary requiring a defence, girls inherit an adult legal environment they did not design and cannot opt out of.

That connects directly with the concern I raised in Who Shapes the Child?. What happens when the interests of a child who identifies as transgender meet the interests of girls whose privacy, dignity, fairness or safeguarding depend upon sex-based boundaries? Which interest will institutions treat as presumptively protected? Who will carry the burden of proving that sex is still relevant in a particular context? And how expensive, socially or legally, will it become to obtain an answer?

I do not claim to know every future answer. The future is not predetermined. That is precisely why scrutiny matters before the institutional presumption hardens further.

Is Australia becoming unsuitable for women?

Grover’s decision to leave Australia inevitably raises a provocative question: is Australia becoming unsuitable for biological women and girls? I would not answer that with a simple yes. Australia remains a country in which women enjoy substantial legal protection, civic participation and freedoms that should not be erased from the record merely to sharpen an argument.

But neither am I prepared to answer the question with a complacent no. My concern is about trajectory rather than present totality. Could Australia become progressively less capable of recognising and protecting legitimate interests that arise specifically from being female if the legal significance of biological sex continues to narrow whenever it conflicts with gender identity?

Could the cumulative effect of legislation, precedent, institutional policy and risk management make sex-based boundaries progressively harder to maintain even where many women reasonably believe those boundaries protect privacy, dignity, safety, fairness or association?

Grover’s departure does not prove that destination. The LAG litigation does not prove it either. But after the body of work I have already documented, I no longer think it is sufficient to look at each development separately and reassure ourselves that this particular case does not yet decide that particular space. At some point, prudence requires us to ask what the developments are accumulating into.

The Christian question underneath the legal one

I write about this as a Christian, and pretending otherwise would be a form of false neutrality. Scripture begins its account of the human person with embodiment.

“So God created mankind in his own image, in the image of God he created them; male and female he created them.”— Genesis 1:27

Male and female do not appear there as rankings of dignity. Both bear the image of God. Roxanne Tickle, Sall Grover, every person experiencing gender dysphoria, the women of the Lesbian Action Group bear the image of God. So do the judges, commissioners, politicians, academics, philanthropists and advocates whose decisions and arguments I have examined throughout this series. Their dignity does not rise or fall according to whether I agree with them.

But neither does the Imago Dei make the body irrelevant. Christianity does not understand the body as disposable material surrounding a more authentic internal self. We are embodied creatures. Male and female are part of that created reality, even though embodiment in a fallen world can involve profound suffering, disability, infertility, dysphoria and desires we did not choose. Christian compassion has always had room for suffering without requiring creation itself to be rewritten around the suffering.

Compassion therefore matters enormously. But compassion cannot require that one person’s experience makes another person’s biological reality increasingly difficult to name, organise around or protect in law. For women and girls, biological sex is not an abstraction. It describes realities connected with reproductive biology, pregnancy, childbirth, menstruation, menopause, sexual dimorphism and particular forms of vulnerability. Not every woman experiences every one of those things. That does not make the category unreal.

Where this leaves me

When I began writing What Is a Woman?, I thought I was writing primarily about language. I no longer think the question can be confined there. I have followed ideas from philosophy into legislation, from legislation into litigation, from advocacy into institutional practice, from philanthropy into policy networks, and from newly established protections into debates about parental authority and religious exemptions.

Now the Giggle v Tickle litigation has ended. The Full Federal Court has held that the exclusion of Tickle from a female-only service amounted to direct gender-identity discrimination. The High Court has refused special leave. Grover says she will leave Australia. At the same time, the Lesbian Action Group is seeking an exemption so biological-female lesbians can hold public events on the basis of sex.

I do not believe those facts establish an inevitable destination. I do believe they justify a stronger question than I was prepared to ask when this series began. One does not need to know with certainty where a road ends before asking whether it remains the road we should be travelling. Nor does one need a conspiracy theory to recognise gradualism when the legal, institutional and cultural changes can be documented step by step.

I remain open to correction. If I misunderstand a judgment, I want lawyers to point it out. If I connect developments that should properly remain separate, I want that challenged. Truth does not become stronger because we protect it from scrutiny. But humility does not require passivity, and caution should not become an excuse for refusing to recognise an accumulating pattern until the practical consequences are too embedded to reconsider easily.

So I am left with a question more difficult than the one with which I began. It is no longer simply, what is a woman? It is this:

Will Australia remain a country in which girls and women can expect meaningful legal recognition of their biological sex, including where sex matters for privacy, dignity, safety, fairness and freedom of association, or will recognising those boundaries increasingly become something women must explain, defend and seek permission to maintain?

I do not believe that answer has been settled. That is precisely why I believe it is worth asking now.

Thanks for reading.

God Bless

Mark