Tickle vs. Giggle
Women-only spaces are valuable, and we should prevent biological males from accessing them, whatever their stated gender identity.
In his Reasons for Judgement delivered this Friday 23 August in the legal case of Tickle v. Giggle, Justice Robert Bromwich declared that “Roxanne Tickle was of the male sex at the time of birth, but is now recognised by an official updated Queensland birth certificate… as being of the female sex.” Tickle was male, then, but is now recognised as female. Just in case you’re envisaging a reverse version of the intersex condition 5-ARD that we heard so much about during the Olympics, no, this is not that (no such reverse condition exists). This is about a straightforward male supposedly becoming an admittedly not-so-straightforward female.
Doriane Lambelet Coleman
The case concerned Tickle’s access to a female-only social media platform (‘Giggle’), specifically, whether his exclusion from the platform was a form of discrimination. There were big social issues at stake. Biological sex has historically been an axis of oppression and remains one in many countries. It had become unclear whether the law in Australia could recognise biological sex, or only the adjacent concept of legal sex. Since 2018, when the UK considered introducing self-identification for “gender recognition,” there has been a huge public debate over what a woman is. Gender-critical feminists and their allies say that a woman is an adult human female (‘female’ here refers to biological sex, not legal sex); trans activists and their allies say that anyone who identifies as a woman is a woman, ergo, transwomen are women. Most gender-critical feminists think woman is a ‘natural’ kind, something you are from birth and will remain throughout your life; most trans activists think woman is a ‘social’ kind, something that can change over the course of your life, that you can cease to be or start to be. This has led to especially fierce debate over female-only spaces, and the question of whether spaces that previously excluded males on the basis of their biological sex must now admit them on the basis of their self-identified or legal sex.
I have never read a judgement as obtuse as Bromwich’s. He simply declares all these fraught social issues to be irrelevant. Of biological sex he says, “it is not my role in forming a judgement about the issues in dispute, and the relevant law, to have regard to the evolutionary or biological definitions or features of human sex.” It is as though biological sex were just an esoteric scientific matter that only a few experts could possibly know or care about, and legal sex is the thing most people mean when they talk about sex (“sex is not confined to being a biological concept… but rather takes a broader ordinary meaning”; “in its contemporary ordinary meaning, sex is changeable”). He never grants, not once in ninety-three pages, that biological sex is an important ordinary concept, even if it’s not the concept that the law tracks.
