Women's app makes case to 'disadvantage' for equality
The Giggle for Girls app is seeking to overturn a 2024 finding that it discriminated against a transgender user by removing her from the women-only platform in September 2021.
The platform was a "special measure" exempt from discrimination law as it sought to achieve substantial equality between men and women, an appeal court was told on Monday.
The ability to create these kinds of special measures to promote equality would be frustrated if Justice Robert Bromwich's findings remained because they would - by definition - discriminate against some group of people, Noel Hutley SC said.
"A special measure will exclude someone necessarily because it's otherwise not special," he told the Full Court of the Federal Court on Monday.
Lawyers from the Sex Discrimination Commissioner have challenged this, telling the court that this would permit "invidious discrimination" to take place under the shield of a special measure.
When Mr Hutley said this was an "extreme example" and did not need to be considered, one judge pushed back - asking why someone seeking to actively harm another group would be protected.
"Why would the (Sex Discrimination Act) then say that's OK?" Justice Melissa Perry asked.
Mr Hutley replied by saying parliament had to form a compromise when enacting the legislation.
"So you say as long as you have a purpose of achieving substantive equality between one of the protected groups, you're in, irrespective of the nature of any other purpose?" the judge asked.
"Quite," Mr Hutley replied.
"If your purpose was to advance women, (if another) purpose was to disadvantage men then there's nothing wrong with that."
Roxanne Tickle - who was born male but identifies as female - was removed from the app in September 2021.
Ms Tickle has also filed her own challenge to Justice Bromwich's decision, seeking to increase the $10,000 in damages he awarded her in August 2024.
She further claims the judge wrongly found that she was not directly discriminated against by Giggle and its founder Sall Grover.
The judge found that a condition by the platform that its members had the appearance of cisgender women did not specifically target Ms Tickle but indirectly discriminated against her.
The hearing continues.
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