Tickle verses Giggle is No Laughing Matter: On the Federal Court's decision to uphold the Individual Legal Rights of Gender Identity over the Natural Class Rights of Biological Sex
Thursday, 29 August 2024
| Paul Tyson
Is the assumption that men and women are biologically different an obvious natural reality, or is it an outdated convention that is both immoral and illegally discriminatory? Should biologically female girls and women have a right to biologically female-only spaces in the interest of sexual safety and competitive fairness, or are biologically female-only spaces inherently bigoted and illegal? These very serious questions are what the seemingly frivolous legal case, ‘Tickle versus Giggle’, had to answer. And it has determined that there is no obvious natural reality to sex, and that females are no longer entitled to female-only safety and sex-specific fairness, should any biological male legally identifying as a woman wish access to any female-only space or competition.
The matter runs as follows.
Roxanne Tickle is a transwoman with XY chromosomes who has now successfully sued Sally Grover in the Federal Court of Australia for unlawful indirect gender-identity discrimination. This case was initiated by Tickle after Grover removed Tickle from the female-only social media app Giggle for Girls, hence the case name ‘Tickle versus Giggle’.
On 23 August 2024 Justice Bromwich of the Federal Court of Australia handed down his judgement on the Tickle verses Giggle case. You can view all the relevant court documents here. In what follows I quote from the summary document provided by Justice Bromwich, accessible via the above link.
Justice Bromwich identifies only two categories of persons legally relevant to matters of gender identity, those categories being cisgender (‘a person whose gender corresponds to the sex registered for them at birth’) and transgender (‘a person whose gender does not correspond with their sex as registered at birth’). Though ‘sex’ is the term that defines whether one is deemed cis or trans, the point of these two categories is to obliterate sex itself as a means of discriminating between any individuals or groups whatsoever. That is, any trans person who ‘identifies’ as a female cannot legally be distinguished from any cis person who ‘identifies’ as a female. Both cis and trans are here understood as gender identities, and female is now deemed a flexible subset of gender identity, such that ‘female’ is no longer deemed an objectively verifiable sex identity category in its own right. Sex as a natural, unchangeable biological category is now redundant in Australian law.
Sex is treated by Justice Bromwich as a legal construct, such that the ‘female sex’ (note the Justice uses the word sex here, not gender) of Roxanne Tickle is ‘recognised by an official updated Queensland birth certificate’. Thus, Justice Bromwich notes ‘for that reason, I refer to her as Ms Tickle’. Legally recognised paperwork – not natural biology – determines sex for the purpose of Justice Bromwich’s ruling.
As far as I can ascertain, Grover argued that the original intention of the Australian Sex Discrimination Act (SDA 1984) was to protect women from being discriminated against by men, and to allow certain forms of positive sex discrimination that promote the equality of women with men, that promote the interests of women and that protect the safety and rights of women in male-dominated or female-vulnerable contexts. In keeping with the original intention of the SDA, Grover proposed that her sex-determined discrimination against Tickle was legal and had nothing to do with Tickle’s gender identity as a transwoman. Significantly, Grover’s argument does not rest on legal documentation as regards a person’s sex, but on a distinction between objective biological reality and legal or informal gender identity. Justice Bromwich summarises Grover’s argument thus:
[Grover’s legal team claims] that Ms Tickle was discriminated against on the basis of her sex, which they consider to be male, not her gender identity. They consider sex to mean the sex of a person at birth, and that this is unchangeable….
Justice Bromwich goes on to note that the SDA (1984) was amended in 2013. These amendments removed definitions of natural biological sex from the legal meaning of the terms ‘man’ and ‘woman’, such that (ironically) gender identity, not natural sex, has been the only category of ‘sex discrimination’ recognised by the SDA for more than a decade in Australian law.
Hence, Justice Bromwich determined that Gover’s ‘arguments failed, because [it] … conflicted with a long history of cases decided by courts going back over 30 years. Those cases established that, on its ordinary meaning, sex is changeable’.
The use of ‘ordinary meaning’ by Justice Bromwich is curious, seeming to imply that in non-legal contexts people now assume that a male individual can really became a biological female by legally changing their birth certificate, undergoing cross-sex hormone treatment and undergoing surgeries that remove unwanted genitals and/or breasts. This seems highly unlikely to me, as it is a well-known scientific fact that an XY-chromosomed male can never become a fertile XX-chromosomed female in actual reality, whatever hormone treatments and surgeries they undergo. In non-legal contexts, it seems likely that most people recognise a substantive difference in factual reality as regards sex, which distinguishes a natural biological female from a transwoman. Perhaps what Justice Bromwich means by ‘ordinary meaning’ is the newly established legal meaning of the word ‘sex’ as defined by legislation and legal precedent over the past 30 years. If that is the case, then for Grover to use the word ‘sex’ to mean an objective biological reality that is independent of a person’s self-defined gender-identity is to use the word ‘sex’ outside of its ‘ordinary [legal] meaning’.
So how, in the historical blink of an eye (the past 30 years), did the Australian courts come to throw out the West’s ancient understanding of the natural reality of the objective biological sexual differences that define the common meanings of the words ‘man’ and ‘woman’, and throw out the scientific fact that humans are a sexually dimorphic species where biological reproduction is premised on the male-female sex binary? How has the ‘ordinary’ legal meaning of ‘sex’ come to have nothing to do with the natural realities of human sexual reproduction, and nothing to do with the cultural realities that have accrued around the sexual dimorphism of the species from time out of mind, including social norms designed to protect women from male sexual violence and exploitation?
As Justice Bromwich notices, the present Australian legal outlook on the meaning of human sex does indeed have its origins in the 1990s. Judith Butler’s Gender Trouble (1990) signals the emergence of the queer critique of ‘heteronormativity’ into what we now call third wave feminism. The 1990s also links up third wave feminism with the gay rights movement, being non-heteronormative and no longer simply female-concerned. So what could be called the normal cultural feminism of the 1980s is transformed away from being about equal rights for women with men and the betterment of women within a predominantly heteronormative and Christian familial and sexual ethics context, to being a repudiation of all traditional women’s concerns, and to being no longer defined by women’s sexual distinctiveness from men. The glamorising of pornography, promiscuity, prostitution and sadomasochism, and the queer celebration of what was formerly considered sexually deviant, are also an aspect of the ‘sex-positive’ side of third wave feminism. By the 1990s, including abortion as a basic women’s right became increasingly central to the development of the 1960s sexual liberation movement. The pill and abortion effectively separated sexual relations from human reproductive necessities, and no-fault divorce socially undermined the stability of family continuity in the culture at large. So, we have indeed had 30 years of intensive cultural and legal reform around the meaning of human sexuality and constant ‘innovation’ concerning what the appropriate legal categories concerning sex, and (after Butler) gender, should now be. But does this mean that the natural sexual differences between men and woman are now obsolete or somehow not scientifically valid? Judith Butler thinks ‘yes’.
In her 2024 book Who’s Afraid of Gender?, Butler claims that, ‘If “sex” proves to be a spectrum or a mosaic, as some scientists have argued, the so-called facts of science prove to be more complicated than the simple binary would imply’ (190). This seems a relatively cautious statement heading towards non-binary sex/gender fluidity, but elsewhere in her book Butler simple claims that sex and gender are ‘co-constructed’ (33, 188), such that ‘sex and gender constitute one another’ (207), and indeed, ‘the social produces the biological’ (216, emphasis in original). So, your self-determined and socially performed gender produces your sex, according to Butler, whether scientists agree with her or not about ‘sex’ (Butler often puts this word in sceptical quotation marks). All the while Butler insists that gender cannot be defined (3) and that anyone who is not comfortable with the indefinability of both sex and gender is pathologically gender-phobic and a fascist (25). So, sex and gender can only be defined, according to Butler, as undefinable. Both gender and sex are – apparently – personal identity construction categories that people must be free to fluidly, performatively and creatively determine for themselves. Subjective, individual identity here trumps objective natural categories. If – as a hypothetical – an auto-gynophilic transwoman with XY chromosomes wants to get changed in the women’s change room at the public swimming pool where my wife and daughters get changed, that transwoman’s personal identity trumps my wife and daughter’s assumption that a women’s change room is exclusively for XX females. This is because – according to Butler – there actually is no objective sexual reality that is not co-defined by subjective and cultural gender construction. My wife and daughters might think they are women because they are female, but no, female ‘sex’ is a personal and cultural construction, and though they have XX chromosomes and all the typical external and internal biology of natural human females, they are no more female than is the XY chromosomed autogynophilic transwoman, or – to take another hypothetical – an XY chromosomed sexual predator claiming to be a woman, in their change room.
Two things are important to note here. Firstly, the difference between XX females and XY males is a fundamental objective reality of human reproduction, whatever Judith Butler and the Federal Court might say. Secondly, the human species is sexually dimorphic with males being statistically bigger, stronger, more aggressive and far more prone to performing acts of sexual violence against women than are females. Let us look at these two basic facts about reality to which our legal definitions of sex and gender – as now captive to queer gender ideology – are blind.
To the first point: all humans born into the world have a biologically male father with XY chromosomes who has the natural ability to produce and in some effective manner sexually propagate sperm, and a biologically female mother with XX chromosomes who has the natural ability to produce ova. All natural births without the aid of reproductive technologies (which is how the vast majority of humans come into the world, even today) are a result of the successful mating of a fertile XY male with a fertile XX female. These facts are not only incontrovertible, they are the grounds of our own biological existence and the most fundamental cause of human sociality. Familial structures anchored to marital union have always been, and will remain, the most primary grounds of functional societies. Should biological females and biological males stop having secure sexual relationships that ground the continuity of the biological family, the replication of the species and the deep humanising formation of children, we will be in serious peril.
Of course, after the 1960s, Western culture has done everything it can to isolate the procreative realities of human sexual biology from the relational dynamics, the individual satisfactions, the identity-constructions and the recreational pleasures of human sexual activity. If you watch most depictions of sexual love, conquest and recreation in the media, you could be excused for not thinking that sex has anything to do with mothers, fathers, babies and families at all. The real costs and joys of sexual reproduction, and the central place of long-term commitment in human sexual love for the stability of the family and the welfare of children, are somehow siloed off from everyone’s supposed individual sexual freedoms and identities. But in human and scientific reality, sex is centrally about reproduction and families, and only incidentally about personal identity, individual pleasure and cultural projections of power and desirability. And the heteronormative structures of marriage and the biological family that Judith Butler and the entire queer movement are so determined to destroy have evolved over eons for very biologically necessary and socially significant reasons. The anti-natural gender theories driving the legal innovations around ‘sex’ over the past 30 years are imposing an ideology of no-procreative personal sexual satisfaction and gender construction on everyone. This imposition is – in biological and sociological terms – an anti-sex and anti-humanity assault on the realities of human sexual reproduction and the maritally-bonded biological family.
Judith Butler – as Martha Nussbaum has ably pointed out – is a slippery linguistic sophist, not a philosopher, not a scientist. And Butler is also a reforming political activist championing the queer and transgender assault on heteronormativity. There is nothing factual and objective about her political objectives, but she has a deeply normative and ideological spin on sex and gender that she is seeking to propagate. It is very disturbing that our legal system has become captured by this ideological agenda, to the cost of the entitlement of Australian girls and women to safe and fair single-sex spaces. More on this shortly, but here, let it be said that the biologically defined sex binary of XY males and XX females is a fundamental objective reality of the human condition, and the blindness of Australian law to that reality is staggering and shocking. Sally Grover has objective reality on her side, whatever the past 30 years of legal development in Australian law may be. And if law spirals out of contact with reality, this is no good for law and unsafe for would-be law-abiding people. Our courts and parliamentarians must address this problem.
Secondly, in Australia we are well aware of the persistent tragedy of domestic violence – overwhelmingly suffered by women and children, overwhelmingly committed by men – and the obvious reality that the vast majority of sexual crimes are committed by XY (biologically male) men against XX (biologically female) women. It seems obvious beyond any dispute that biological girls and women should be entitled to single-sex safe places if there is any inherent sexual vulnerability involved (such as changing and toileting). Again, this is not a matter of sophistic theory or legal opinion, but a matter of demonstrable, serious and objective fact. Though the ideologically captured law presently constrains Justice Bromwich to find against Sally Grover, objective reality and the natural rights and safety needs of women are undoubtedly on Grover’s side, and not on the side of the present refusal of our legal system to treat the biological facts of human sexual difference as real.
Sally Grover is determined to challenge this sadly predictable ruling of the Federal Court of Australia against any and all sex-defined rights to safety and fairness for Australian girls and women. She will appeal to the High Court. In that appeal we will discover if a sensible respect for objective biological reality, and a clear commitment to the wellbeing and security of Australian girls and women, can be recovered.
Paul Tyson is an Honorary Senior Research Fellow, at the School of Historical and Philosophical Inquiry, at the University of Queensland.
Image credit: by sasint at Pixabay.