Words and phrases like ‘cisgender’, ‘transgender’ and ‘assigned at birth’ are peppered throughout the written judgement in the Australian gender identity discrimination case, Tickle vs Giggle. At the turn of this century, these words had barely made an impression on society; now they are part of lexicon. So, where did they spring from? And, importantly, what effect do these words combined with the Federal Court landmark judgement have on our understanding of same sex spaces?
But first, the Federal Court landmark decision, which says sex ‘is changeable and not necessarily binary’.
Roxanne Tickle, a transwoman, brought a case of gender identity discrimination against, Giggle, a social media site for women, run by Sall Grover. Tickle was originally admitted to the Giggle on the basis of an AI app screening Tickle’s selfie. Grover later viewed the selfie and denied Tickle access to Giggle after she deemed the photo to be that of a male.
2013 changes to the Sex Discrimination Act (ADA) have made it unlawful to discriminate against a person on the basis of gender identity, sexual orientation or intersex status. The ADA does not define gender but explains that gender identity:
‘…means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.’
Tickle was born a man but started identifying as a woman seven years ago at the age of 47, and has an official updated Queensland birth certificate stating Tickle is female. Tickle has also undergone gender reassignment surgery. ‘She began to use female changing rooms and started playing in a local women’s hockey team. She began shopping from the women’s side of clothing stores and began a process of removing her facial hair,’ Justice Robert Bromwich wrote in his judgement.
Justice Bromwich found that Tickle had been indirectly discriminated ‘because she did not look sufficiently female’.
'The Federal Court judgement now appears to have set a precedent in dealing with women’s only spaces. It is gender identity rather than biology that takes priority over who is accepted into female spaces. The judgement also appears to be telling women they cannot lawfully refuse entry to biological men who identify as women in female-only spaces even if these individuals have the physical attributes of men.'
‘I find that even if the Giggle app could have been considered a special measure to achieve equality between men and women, that would not have allowed the respondents to discriminate on the basis of gender identity, which is different from discriminating against women on the basis of sex under the SDA,’ Justice Bromwich wrote.
He chose to use the terms ‘cisgender’ and ‘transgender’ in his judgement because ‘both terms (are) useful and convenient for the purpose of deciding and discussing the relevant facts’.
Cisgender, in particular, is a contested term, used to denote someone whose sex aligns with their gender identity. It started appearing in academic papers in the US in the 1990s, but gained popularity after the book Whipping Girl by American biologist and transwoman Julia Serano was published in 2007. Serano, who identifies as a lesbian, worked at the University of California Berkley for 17 years. Much of book, a series of essays, deals with gender identity, which is defined as a person having an inner psychological feeling of being a man or woman or another category of gender. If a person feels their inner identity as a woman or man misaligns with the sex they were born with (gender ideology uses the term ‘assigned’ female or male), then they are transgender. ‘People who are not transgender maybe described as cisgender,’ Serano writes.
Since the publication of Serano’s book, there have been a bevy of academic papers and texts as well as memoirs published on 21st century gender and, most significantly, on gender identity, which now encompasses a cornucopia of identities such as non-binary, transmasculine and demigender. The gender theories that were developed in universities have now spilled out into the general community and are reflected in law and in the emergence of gender-neutral facilities.
So where does this leave single-sex spaces for females?
Women have fought decades and decades to have female-only spaces, particularly for vulnerable women. Many stories abound about women fighting for and setting up Australia’s first women’s shelter, Elsie in Sydney, in 1975. Before that time there was no place for women to go to escape male violence.
Rape crisis centres started to open in Australia in the 1970s. They were staffed by women who gave female rape victims counselling and medical advice. These services were set up not because of someone’s gender identity but because of the need to cater for women of the sex category.
Since the 2013 ADA amendments, spaces explicitly for females have admitted trans women. For example, some biological men who identify as women have been placed in women’s prisons in Australia. One case in Victoria saw female prisoners demanding that a transwoman who had assaulted women be removed.
Research shows that female prisoners often come from disadvantaged backgrounds and are living in poverty. They are also likely to have experienced male violence and childhood trauma. It is for these reasons that women need their own space for privacy, dignity and safety.
The Federal Court judgement now appears to have set a precedent in dealing with women’s only spaces. It is gender identity rather than biology that takes priority over who is accepted into female spaces. The judgement also appears to be telling women they cannot lawfully refuse entry to biological men who identify as women in female-only spaces even if these individuals have the physical attributes of men.
Many women walking in public and using public transport, particularly at night, size up people and work out who is safe to be around. Invariably it’s men who women may not feel comfortable sharing their space. Women determine this using their eyes, their judgement, and not by asking someone their gender identity.
But this conversation is not just about female-only spaces.
Recently I had a conversation with a 78er, a gay man who attended the first Mardi Gras in Sydney in 1978. He went on to work for the Mardi Gras, gay rights organisations and cared for men with AIDS. He was particularly concerned about biological gay men losing their own spaces for socialising. ‘Trans men are attending our nights. It’s f—ing not on,’ he said. It would be interesting if a trans man brought a case of gender identity discrimination against a gay club that banned them from an event for biological males.
Sall Grover has said she plans to appeal the Federal Court decision to the High Court. The Tickle vs Giggle ruling marks the most significant shift to date in how Australian society and law views gender, sex, and single-sex spaces. While women-only spaces have long been deemed essential, outweighing the disadvantage to excluded males, this verdict leaves users of such spaces with little choice but to accept the inclusion of newly-recognised legal women who are biologically male and potentially compromise what makes these spaces necessary in the first place. Here, despite legal good intentions, we would do well to recognise that sometimes in the rush to right a perceived wrong, we risk creating another.
Dr Erica Cervini is a freelance journalist and sessional academic.