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During the 2022 federal election debate, journalist Deb Knight asked then-Prime Minister Scott Morrison and Opposition Leader Anthony Albanese how they defined a woman. 

What might have seemed a bizarre question in any other leaders’ debate in history was somewhat predictable, given that this was probably the first federal election in which the definition of “woman” seemed to shift from a scientific question, to a political one. 

Two years later, it is not only the politicians who have weighed in but the judiciary as well, with Justice Robert Bromwich of the Federal Court of Australia now offering a legal definition of what it means to be a woman. 

The case, Tickle v Giggle, has a humorous name but serious implications. It concerned the Giggle app, designed by a woman named Sall Grover, as a “women-only safe space on the internet, where women could search for roommates and employment opportunities, network, commune and engage in discussion.” 

Infiltration

Roxanne Tickle is a biological man who, in September 2020, altered his Queensland birth certificate to describe himself as a female. He also took testosterone blockers, oestrogen and progesterone and underwent gender-affirming surgery to alter his physical characteristics to appear female. He downloaded the Giggle app and registered an account. 

As part of the account registration process, users must upload a selfie. Giggle uses artificial intelligence to identify male facial features and filter out men who are trying to access the app. The AI did not filter out Tickle and he gained access.  

Months later, a manual review of user photos meant that Giggle was made aware of Tickle’s masculine features and he was blocked from further use. He then made a claim of discrimination based on gender identity, and the Tickle v Giggle case began. 

Without wanting to get into the complexities of anti-discrimination law, Grover and Giggle argued their case on the basis of a distinction between gender identity and biological sex; that they did not exclude Tickle because he presents as transgender, but because he was a man. Giggle is an app for women only, anti-discrimination laws still allow some room for women’s only spaces, and Giggle was making use of those allowances.  

Justice Bromwich was essentially left to decide whether this was a case of lawful discrimination on the basis of sex, or unlawful discrimination on the basis of gender identity. 

This is where the question, “What is a woman?” became not only political, but judicial. And with respect to His Honour, it also became Orwellian. 

Redefinition

Justice Bromwich ruled that “sex is not confined to being a biological concept … nor confined to being a binary concept, limited to the male or female sex.” “Sex can refer to a person being male, female or another non-binary status,” he wrote. “A person’s sex can be changed.” 

Justice Bromwich wrote that if a “cisgender” man (a biological man who identifies as a man) had made an anti-discrimination claim against Giggle, he may not have been successful. But in finding in favour of Tickle and awarding him $20,000 in damages and up to $50,000 in legal fees, he decided that Tickle is legally and socially a woman.  

What’s more, Justice Bromwich wrote that “the acceptance that Ms Tickle is correctly described as a woman… is legally unimpeachable.” 

Legally unimpeachable. Just let that sink in for a moment.  

The Cambridge Dictionary defines “unimpeachable” as being “of such a high standard of honesty and moral goodness that it cannot be doubted or criticised.” Here, a Federal Court judge and the highest Australian authority, so far, to opine on “What is a woman?” has said that as far as Australian law goes, calling a biological man a woman because he has gone through hormonal and surgical alterations and filled out some government forms is of such a high standard of honesty that it puts it beyond doubt. 

This decision does not only have implications for the Giggle app, but for every women-only space you can think of: girls’ schools, women’s prisons and domestic violence shelters, gyms and more, because these spaces can no longer say that they are lawfully excluding biological males on the basis of sex, they will have to justify the reasonableness of exclusion on gender identity grounds instead.  

The implications are extensive. Ironically, Albanese and Scott Morrison’s 2022 answers would now appear to have been wrong, by the Federal Court’s standard. 

When asked to define a woman, Albanese said it was “an adult female”, while Morrison used “a member of the female sex”. Each went on to say that they didn’t think this was a confusing concept at all. Maybe we should make them judges. 

“If thought corrupts language, language can also corrupt thought. A bad usage can spread by tradition and imitation even among people who should and do know better,” wrote George Orwell. I wonder what he would write if he was alive today. 

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Republished with thanks to The Catholic Weekly. Image courtesy of Adobe.