Tickle vs Giggle: Australia through the looking glass

Last year’s UK Supreme Court ruling that sex means biological sex received wide coverage in Australia, raising hopes that the tide of transgender adventurism may have turned. The optimism was crushed last week by a ruling in the Australian Federal Court that might have come straight from the mouth of Humpty Dumpty. ‘When I use a word’, Humpty told Alice in Lewis Carroll’s Alice’s Adventures in Wonderland, ‘it means just what I choose it to mean – neither more nor less’.

The case of Giggle for Girls Limited vs Roxanne Tickle is a contest over the meaning of words. The plaintiff, Roxanne Tickle, was born male. He alleges unlawful discrimination because he claims to be an actual woman who was excluded from an online platform reserved for females. The plaintiff, Giggle for Girls founder Sall Grover, holds that Tickle cannot become a woman simply by declaring himself to be one. She also holds that Giggle for Girls’ defining purpose – to serve as an online haven for women – would not be served if biological men were allowed in.

She barred Tickle from the site after examining a picture he had submitted and concluding he was a biological male. Based on Tickle’s appearance, the conclusion was not difficult to draw. Yet the court holds that judging a protected person’s identity from their appearance is also in conflict with the law.

Tickle would have lacked standing under Australia’s sex-discrimination laws in their original form. The case relies on an amendment that slipped through parliament in 2013, during the dying days of Julia Gillard’s Labor government. The amendment, redefining womanhood as a question of gender identity, received almost no media coverage. It was overshadowed by the drama of Australia’s first female prime minister fighting for political survival.

The case has brought the tangled muddle of competing claims to a head. The right of transgender people to be free of discrimination has trumped the right of biological women to preserve a safe space. In different circumstances, common sense might apply. This being a matter of law, however, common sense is irrelevant.

The greatest difficulty with the court’s reasoning lies not in its conclusion, but in the method by which it arrives there. The judgment abandons any attempt to ground words such as ‘woman’ and ‘female’ in objective reality. Instead, it insists that the terms be defined by evolving cultural norms, then seeks to adjudicate what those norms might be.

In other words, the ‘facts’ upon which the decision relies are not empirically grounded. They are merely subjective assessments by judges who draw on previous legal opinions to judge societal norms and determine which forms of language are becoming institutionally orthodox.

The Federal Court cites a previous judgement that claims there is ‘a growing awareness in the community’ that a person can be described ‘by the word appropriate to the person’s psychological sex’. A woman is an adult female, another judgement concludes. Nevertheless, it continues, the terms woman and female are ‘generally understood in Australia today’ to include an adult female who ‘has harmonised psychological and anatomical sex’ by undertaking reassignment surgery.

Ordinarily, when courts speak of facts, we imagine evidence drawn from documents, fingerprints or blood stains, things capable of external verification. Yet here, the Federal Court expressly says the meaning of ordinary language is determined by judicial intuition about the direction of cultural change.

The difficulty is obvious. If the meaning of foundational social terms depends upon shifting perceptions of contemporary usage, then legal meaning becomes inherently unstable. It rests upon contested assessments of social consensus.

Different judges, drawn from different generations, classes or ideological milieus, may reach radically different conclusions about what society supposedly accepts. We can virtually guarantee that none of those assessments will accord with consensus between patrons in any pub in Australia or among the tuck-shop volunteers at a suburban public school.

When semantics are surrendered to judicial capture, the courts can quickly lose touch with the thinking of the ordinary reasonable person, hypothetical observer and the ordinary member of the public. The very intensity of contemporary disagreement over these questions certainly suggests the meanings are not nearly as settled as the court implies.

More fundamentally, the judgement collapses the distinction between social courtesy and behaviour that can be reasonably proscribed by law. Members of a civilised society may generally agree that transgender individuals should be treated with dignity and referred to in ways that minimise distress and conflict. It does not follow, however, that words describing biological categories can be hijacked to serve a different semantic purpose. The court blurs this distinction by treating evolving conventions of politeness and inclusion as determinants of ordinary meaning itself.

One of the most disturbing aspects of the judgment is the decision to increase damages because Grover publicly defended her position in strong and politically contentious terms. By doing so, the court imposes a chilling effect on political and philosophical debate, particularly on questions involving sex, gender and identity where social consensus remains unsettled. Once litigants face increased financial penalties for public commentary deemed hurtful or inflammatory, the boundary between compensating for harm and punishing dissent becomes difficult to discern.

The battle between Giggle and Tickle is not yet over. Grover has the option of appealing to the High Court, which she is inclined to do, providing she can secure the funding to run another expensive case. As things stand, the intellectual elite has the upper hand. Its greater rhetorical dexterity, access to platforms and institutional status confer advantages galore. Language can easily become a weapon to impose the elite’s peculiar vision on the rest of us without ever having to put it to a vote.

A High Court ruling in Giggle’s favour matters not just because it re-anchors law in common sense. It matters because objective meaning, legal certainty and due respect for ordinary public understanding are crucial to upholding the rule of law.

Legal rights and obligations must be determined by objective rules consistently applied rather than political favour or personal discretion.

Nick Cater is a Sydney-based columnist with the Australian and a regular spiked contributor.