Sall Grover begins federal court appeal against Roxanne Tickle's gender discrimination case win
On Monday, the full court of the federal court heard that Grover's team believes the app – designed as a 'women-only safe space' – constituted a 'special measure' under the Sex Discrimination Act (SDA), which allows discrimination with the aim of redressing historical disadvantage between men and women.
In an unexpected move, an application for a new amended notice of appeal with an entirely new ground of appeal was lodged by Giggle and Grover's team on Monday morning with only one hour's notice for Tickle's legal team. The application was refused.
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Grover is challenging justice Robert Bromwich's milestone August decision in the first gender identity discrimination case to reach the federal court.
Tickle, from regional New South Wales, sued the women-only social media app for gender discrimination, claiming she was unlawfully barred from using Giggle for Girls in September 2021 after the firm and Grover said she was a man.
Tickle was initially allowed to join the app, which shut down in 2022, but was then later removed from the platform. She contacted Grover on multiple occasions seeking readmission.
Tickle was awarded $10,000 plus costs after Bromwich found she had been indirectly discriminated against, in the decision that tested the meaning and scope of the SDA.
The appeal is being heard over four days by justice Melissa Perry, justice Geoffrey Kennett and justice Wendy Abraham in Sydney.
Giggle and Grover's legal team is being led by Noel Hutley SC. The team has dropped its constitutional challenge argument and is appealing against paying $10,000 damages, claiming Tickle was not discriminated against indirectly, on the basis Grover did not know Tickle was transgender when she barred her from the app.
Grover previously said that the ruling erred in its interpretation of sex under the SDA, had not considered critical evidence and did not recognise that the app was a 'special measure' fostering substantive equality between women and men.
Grover has persistently referred to Tickle as male and during last year's hearing, said she would not address her as 'Ms' Tickle.
On Monday, Hutley said a woman was a 'natal' woman – or assigned female at birth. He told the court the SDA was a 'compromise' and that its special measures were 'ephemeral', claiming that 'just about any special measures targeted at a group' would, through the act's other legal carve-outs, probably involve discrimination of another group. He said special measures should be protective and enabling, not restrictive.
Tickle's legal team is expected to argue that every special measure needs to work for all groups protected by the act simultaneously.
Tickle's barrister, Georgina Costello KC told the court 'a real review of the evidence leads to the easily drawn conclusion that, for the purposes of the Sex Discrimination Act, Ms Tickle is a woman and she was a woman when the appellants excluded her from the Giggle app.'
Costello said: 'She presented her gender identity to the world and to the Giggle app as a woman. Her identity is as a woman and as a transgender woman.'
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She said Bromwich had made the correct conclusion 'that Ms Tickle was a woman' and that her sex as a woman was 'legally unimpeachable'.
Tickle's team is expected to argue also that the judge did not fully consider all of the evidence and that Tickle's barring from the app and failure in her appeals to Grover to rejoin the app both amounted to direct, not indirect, discrimination.
Tickle is seeking a total of $40,000: $30,000 in general damages, and $10,000 in aggravated damages. Her team will argue previously awarded damages of $10,000 are inappropriate and did not take into account Grover's conduct around the proceedings.
During the three-day trial in April 2024, the court heard Tickle had lived as a woman since 2017, has a birth certificate stating her gender is female, had gender affirmation surgery and 'feels in her mind that psychologically she is a woman'.
The respondents claimed that biological sex was immutable and that the app had been intended as an online refuge for women.
The court has granted leave to the sex discrimination commissioner, Equality Australia and the Lesbian Action Group – which unsuccessfully attempted to exclude transgender and bisexual women from its public events – to intervene, or participate, in the appeal.
Changes to the SDA in 2013 made it unlawful under federal law to discriminate against a person on the basis of sexual orientation, gender identity or intersex status.
In April 2025, the UK supreme court issued a historic and definitive ruling that the terms 'woman' and 'sex' in the UK's Equality Act refer only to a biological woman and to biological sex.
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Warning: This article contains historical records that use racist and offensive language, and descriptions of events that will be distressing to some readers John McPherson catches his breath, his boots caked with mud after trudging 700 metres through a soggy paddock to reach the gravesite. Light rain falls as he stands before the headstone of his ancestor, whose life ended abruptly on this grassy plain in central Queensland more than a century ago. McPherson, a former journalist from northern New South Wales, has spent years investigating what unfolded here; a massacre on a lazy afternoon that unleashed a bloody war involving a founder of Australian rules football, the head of Australia's oldest company and an ancient people whose way of life would be forever altered. It is almost four years since research emerged suggesting that the sporting legend Tom Wills may have taken part in massacring Indigenous people, sparking internal investigations by both the AFL and Cricket Australia. 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Horatio, who had developed positive relationships with the Djab Wurrung people in Victoria, arrived in central Queensland as long-simmering tensions between the local Aboriginal people and the colonists were about to boil over. Queensland had been established as a self-governing colony just two years earlier. The frontier was moving north, assisted by the notorious native police – contingents of Aboriginal troopers led by white officers tasked with protecting the livelihoods of settlers and punishing Aboriginal resistance. The native police had carried out a 'string of massacres' and 'terrorised' peaceful camps of Aboriginal people in the region in the years before 1861. About the same time there were reports of two Aboriginal boys being kidnapped from the area by white men. 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Sign up: AU Breaking News email Tom survived. He had been sent to collect supplies from a nearby town days earlier. So did two shepherds, one of whom rode to alert the nearest neighbour – Gregson – of the massacre. Gregson quickly assembled a group of settlers to bury the bodies. A dispatch from Queensland's first governor, George Ferguson Bowen, would later describe how 'an uncontrolled desire for revenge took possession of each heart'. The group set out to track the killers. They found them within days. As dawn approached, they surrounded the sleeping tribe. Official records show at least 30 Gayiri people were killed that day. Then the native police arrived. 'So this is where the native police caught up?' McPherson asks. He and Black are standing on a quiet road off the highway, looking across a paddock to a small mountain with a sheer cliff face at its peak. 'There were vigilantes and troopers, [they] chased them all the way through this range,' Black says. 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'Like dead cows or horses – open them up, pull out the insides and actually hide inside so you couldn't get found.' Ross has spent much of his life trying to find out who he is and where his people came from. His mother grew up on a mission at Woorabinda, away from her country, where she was discouraged from speaking her native language or acknowledging her culture. Her own mother had died young and she didn't know who her people were. Ross was raised between Melbourne and Katherine in the Northern Territory. After decades of research, he obtained documents from the Queensland State Archives confirming his ties to the Gayiri people. In 2008 he went to his country for the first time, spending an unsettling two days in Springsure. 'I'm a spiritual person,' he says. 'I couldn't sleep. I was having nightmares.' Aside from his great-uncle, Ross has been unable to track down many other kin. 'The legacy is just a tribe that's wiped out and forgotten about,' he says. 'It affects me directly because now my family is tiny. People are responsible for decimating a tribe – a tribe of beautiful people – and there's no repercussions.' The memorial site for the Wills massacre is a popular, if grim, tourist attraction. A mowed pathway leads to three graves: one for Horatio; another for the brother of Tom's former teammate, farmhand George Elliott, and a fellow worker, Thomas; and a mass grave for the rest of the workers and their children. Horatio's headstone says the group was 'barbarously murdered by the blacks'. The bones of the Gayiri killed in retribution were left where they fell. There is no memorial for them. The body of one of the dead men, shot while hiding in a tree, was displayed in the Australian and South Sea Islander Museum in Melbourne. From the early 1900s most of the Aboriginal people who remained in the region were taken to missions or reserves under new laws, ostensibly designed to 'protect' Indigenous people – but which placed strict controls over every aspect of their lives and kept them working in conditions tantamount to slavery. Cullin-la-ringo was taken over by Tom's younger brothers, Cedric and Horace, who came to blame Gregson for their father's death. The property was eventually sold but Cedric's great-grandson, also called Tom Wills, still owns a cattle station adjoining it. The younger Tom, now in his late 60s, inherited tomes of family letters, journals and memorabilia, which are carefully catalogued and stored in a shed. His grandparents didn't speak of massacres – 'they didn't talk about anything like that' – but his father had a keen interest in the family history that he passed on to his son. Tom says the family went on to build good relationships with Aboriginal people, despite what happened at Cullin-la-ringo, later employing them to work on the station. 'They talk about reconciliation – I think reconciliation started in the 1860s,' he says. Gregson – who helped slaughter dozens of Aboriginal people in the region – went on to become the longest-serving superintendent of the Australian Agricultural Company, better known today as AACo, a publicly listed $830-million company that controls the country's largest cattle herd. Tom Wills the elder, unsuited to farming life, returned to Melbourne. He went on to coach the first Aboriginal cricket team. Alcoholism ended his sporting career and, ultimately, his life. He killed himself in a state of delirium in 1880, aged 44. He was buried in an unmarked grave and disowned by his family. But the sportsman's image has undergone a transformation since the release of his biography and a fictionalised account of his life in Martin Flanagan's 1998 novel, The Call. He is now celebrated as an early pioneer for reconciliation and listed in the Australian Sporting Hall of Fame. There is a statue of him outside the MCG. There has been much debate over whether he was involved in killing Gayiri people after his father's death. A researcher sparked a furore in 2021 when he told the ABC he'd found a US newspaper article from 1895 in which an author, known only as 'G', claimed to give an account of Tom's involvement in a massacre. The Chicago Tribune article, which contained several inaccuracies, quoted him as saying: 'I cannot tell all that happened, but know we killed all in sight:' Several contemporaneous letters appear to support the theory, or at least show Tom's animosity towards Aboriginal people in the region after the massacre. Four days after returning to its scene, he asks his cousin to send him workers who 'will shoot every black they see'. A month later his mother writes to her children that 'Tom and the settlers around have well revenged [Horatio's] death'. But the younger Tom Wills, and Terry Wills Cooke, another family historian based in Victoria, are adamant that he did not take part in any killings, claiming that family records show Tom was elsewhere – at least during the first retaliation raid. Guardian Australia understands that the AFL, Cricket Australia and the Melbourne Cricket Club (MCC) commissioned a report by the Indigenous historians John Maynard and Barry Judd. The report, never released but seen by this masthead, was unable to find conclusive evidence to confirm or deny Tom's involvement in the direct massacre of Aboriginal people – but says 'where there is smoke, there is generally fire'. Its authors recommended that the three sporting bodies 'lend support' for a 'truth-telling process to be undertaken nationally'. Guardian Australia approached the AFL, Cricket Australia and the MCC for comment, but did not receive a response before publication. Yamba Konrad Ross accuses the organisations of 'trying to shovel the dirt under the carpet and just cover it up with their nice fancy rug'. To move forward, he wants to see further investigation and recognition of the Gayiri people alongside the tributes to Wills. The younger Tom Wills reckons the characterisation of his ancestor as a trailblazer for reconciliation is an accurate one. Wills Cooke says he was a 'very flawed character' and the broader context should be considered when evaluating words and actions from that time. 'We tend to judge what happened then as if it was today, but it wasn't,' he says. John McPherson, descended from Horatio's sister, is perhaps the only member of the family to believe that Tom Wills probably did kill Aboriginal people. He inadvertently stumbled on to the horror of Cullin-la-ringo while writing a thesis about the origins of AFL. His subsequent deep dive into Queensland's violent past caused him to face significant mental challenges. 'I just read so much material, way more than just the Cullin-la-ringo stuff, about people boasting about their killings,' he says. 'Like this is in the 1890s in Brisbane, people are around having high tea and it's like, 'Yes, let's go out on an Aboriginal hunt this weekend.' I was just horrified.' But the experience – and his interactions with Black in Springsure – have strengthened his resolve that these truths should be exposed. 'We need to acknowledge our history, because this isn't all that far in the past and generational trauma is a very real thing,' he says. Black continues to tell anyone who will listen about the people who were largely eradicated from the land. 'I see some of these people, when I'm trying to get them to come along, I see the ones who are a bit standoffish and don't really want to do it,' he says. 'But then, I love it when these types of people come along, because if you can make change with them, then you know you're doing all right.' Indigenous Australians can call 13YARN on 13 92 76 for information and crisis support; or call Lifeline on 13 11 14, Mensline on 1300 789 978 or Beyond Blue on 1300 22 4636 Lorena Allam is a professor at the Jumbunna Institute for Indigenous research at the University of Technology Sydney
