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The ABC has at long last published a legal critique of the Giggle v Tickle ruling after years of biased coverage that included calling Roxanne Tickle a “transgender woman”.

The ABC has published a legal academic’s critique of the Federal Court’s Giggle v Tickle ruling in its opinion section, three days after rejecting a similarly argued piece from Sall Grover, the case’s losing appellant.

Neil Foster, an Associate Professor of Law at the University of Newcastle, wrote in the ABC’s Religion & Ethics section over the weekend that under the ruling, “any place or activity that is meant to be provided for ‘women’ will have to be open to biological males identifying as such.”

The Full Federal Court dismissed Sall Grover’s appeal in May, ruling that her women-only app, Giggle for Girls, unlawfully discriminated against Roxanne Tickle, a man who holds a Queensland birth certificate that states he is female. The court doubled damages against Grover to $20,000 and found the discrimination was direct rather than indirect.

News and Opinion Diverge: Giggle v Tickle

The ABC’s own news report on the case described it as a “landmark” ruling and referred to Tickle throughout as a “transgender woman”. In the report, Tickle was quoted as saying the outcome would help “trans and gender diverse people and their loved ones to heal”.

The ABC had earlier declined to publish an opinion piece from Grover after 37 email exchanges and two redrafts, objecting to her use of phrases such as “biological reality” and “truth”. Grover’s piece, later published in The Australian, argued the ruling eroded women’s sex-based rights.

The rejection followed the ABC’s publication of an article by law academic Paula Gerber describing the Giggle v Tickle ruling as “good for trans rights and women’s rights”.

A 2025 study cited by The Daily Declaration found that of 540 ABC News articles on gender identity published between January 2020 and June 2025, only one discussed the Cass Review into youth gender medicine. None reported on the more than 100 Australian clinicians who called for a halt to youth transition procedures.

Foster’s Legal Argument

Foster’s critique centres on section 7D of the Sex Discrimination Act 1984. This provision lets someone set up a “special measure” — a women-only space or service — to help achieve equality between men and women, without that measure itself being ruled unlawful discrimination.

Grover argued the Giggle app was exactly this kind of measure: a space where women could interact online without men present. The Full Court rejected the defence. It found the exemption protects a women-only space from a sex discrimination claim, but not from a gender identity discrimination claim — the ground on which Tickle sued.

Foster argued the court read the provision too narrowly. It was written to cover both grounds together, he said, not split them apart.

He also argued the Full Court had no basis for treating this as new or unsettled ground. He pointed to two earlier cases where the same defence was accepted without being split apart by discrimination type: a women-only gym class, and a union that reserved leadership roles for women. In neither case did a court limit the exemption to just one kind of discrimination claim, he wrote — which is what the Full Court did for the first time in Giggle’s case.

Foster noted the judges essentially conceded as much. Justice Melissa Perry acknowledged a literal reading of section 7D “is an available one”. Justices Wendy Abraham and Geoffrey Kennett went further, finding the same reading “works grammatically” and “does not strain the language” of the provision. All three adopted the narrower interpretation anyway.

A Question of Definition

Foster also disputed the majority’s finding that the word “woman” in the Act shouldn’t be tied to any “narrow or rigid conception of femaleness”. He argued the Act exists to implement a well-known 1979 international treaty aimed at ending discrimination against women, which assumes throughout that it’s protecting biological women, given its provisions on pregnancy, maternity leave and breastfeeding.

He also contrasted the ruling with the UK Supreme Court’s 2025 decision which ruled that “sex” in British discrimination law means biological sex.

Grover has applied to the High Court of Australia for special leave to appeal.

Foster wrote the case raises “questions of law of public importance” affecting women’s refuges, sporting teams and prisons, and warned that religious groups relying on section 37 of the Act to operate according to their doctrines face similar legal risk.

The High Court has not yet decided whether to grant leave.

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Image courtesy of Wikimedia Commons.