I landed at Sydney airport last week at the exact time that Sall Grover was being cross examined in the Federal Court by lawyers representing Roxanne Tickle about why she would identify an adult male as a man.

The case of Tickle v Giggle resulted from Sall Grover’s refusal to submit to education on ‘sex’ and ‘gender’ by an organisation that, it became clear, can not accurately define either. Sall and her app Giggle for Girls was taken to the Australian Human Rights Commission (AHRC) by Roxanne Tickle for refusal to admit him to the app.

I attended the court hearing on Wednesday and Thursday. Among the things that astound me about the case, is the submission to the court from the AHRC and their testimony regarding what sex and gender identity are.

The AHRC appear to align with Tickle in the case, and are telling Australian women that they are no longer rightfully allowed to have a legal or procedural barrier with a male person on the basis of sex, if the male person has a ‘gender identity’ of female. More than that, if a female person recognises a male person in public and behaves in a way that excludes that person from a female space, for any reason, including self-protection, dating, or personal dignity, that female person can fall shy of Australian human rights legislation and hate speech laws if that male person has a gender identity of female.

The AHRC was given leave to be Amicus Curiae (friend of the court) for Tickle v Giggle. Throughout the 25 page submission supplied to the court, it is clear that the AHRC struggle to define gender identity in any material way apart from the fact that it has been declared to be a thing in international law and it exists via certain characteristics that are apparently obvious but are very poorly identified by the AHRC.

The position of the AHRC has been clear for some time by their continued refusal to grant single sex exemptions under the SDA to women who wish to meet exclusively with female people. Most notably, a lesbian woman was recently refused permission by the AHRC to meet with other lesbians who are born female.

The argument of the AHRC in their submission to the Tickle v Giggle case is essentially that gender identity has redefined sex in ordinary meaning over the course of the last few decades, beginning with the accommodation of a few post-operative transsexuals in law and continuing with the concept of gender identity essentially redefining sex. The AHRC argue that this modified meaning of sex is reflected in the Sex Discrimination Act (1984) (SDA). This is the act that would usually give women like Sall the right to create a female only digital space.

So, what is gender identity? Well, it’s not what feminists used to understand and use as ‘gender’ when I went to university in the 90s.

According to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) ‘gender’ is the ‘socially constructed identities, attributes and roles for women and men and society’s social and cultural meaning for these biological differences resulting in hierarchical relationships between women and men’.

Gender identity as distinct from the sociological term ‘gender’, is a concept invented in psychology to describe a feeling that people have in their mind, about what sex they are.

According to the Sex Discrimination Act (1984) gender identity is defined as:

‘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.’

The argument that gender identity has redefined sex comes in three steps in the AHRC submission in paragraphs 26, 27, and 28, I’ll call them the 1, 2, 3 of sex erasure.

1. In addition to the ordinary meaning of sex, Australian law has in the past recognised that ‘a person was male or female if they had gender surgery’.
2. A statement is made vaguely by the AHRC that there ‘may be other reasons why they are considered male or female’, but these reasons are not specified.
3. Throughout Australian state and territory law, the requirement for surgery has been removed for sex reassignment.

Therefore, sex is now considered to exist in the ‘other reasons’ that someone may have to change their sex on official documentation. This ‘other reasons’ is now considered to be included in the ordinary meaning of sex, so we need to know what these reasons are.

In the three-day court hearing of Giggle v Tickle it was clear that the lawyers for Roxanne Tickle and counsel for the AHRC struggled to explain what gender identity was, let alone how a woman is supposed to recognise it out in the wild as having changed someone’s sex.

Since Tickle is claiming $200,000 in compensation for not having their gender identity recognised by the administrators of an app, it is important for the women of Australia to know how to recognise a gender identity in a person.

Once gender identity is installed in hate crime legislation, men with a special gender identity of ‘woman’ won’t even have to go to the AHRC to insist a woman give him entry to a female space or make a woman use the female words, they will be able to make a complaint to the police to have the woman charged with criminal activity who disrespects his female gender identity.

According to the AHRC, gender identity discrimination can exist when you have indicated that a male person is ‘not perceived as being (“sufficiently”) female’. That is your ‘perception’ of a person’s sex over their gender identity, can be legal discrimination, according to the AHRC. In hate crime legislation, the gender identity component of the definition of hate can enforce evidence of wrong thoughts in a woman about a man.

The AHRC state that ‘gender-related appearance and gender-related characteristics’ can be evidenced ‘through the way a person dresses’. The Self ID laws in Queensland state that a person’s ‘woman’ gender identity can be communicated through ‘dress, speech or behaviour’.

Gender identity removes women’s rights from their bodies gives it to women’s clothes. Bridie Nolan, counsel for Giggle, noted in her summing up that when a woman is being followed in a park by an obvious man, she doesn’t stop to ask him what side of K-Mart he shops on.

A cornerstone of the case of Giggle and Sall Grover is that the international rights of women are being contravened in Australia as signatories to CEDAW under which women are entitled to single sex facilities.

Reem Alsalem, the United Nations Special Rapporteur on violence against women, has been warning Australia that the AHRC interpretation of gender identity in tribunal hearings could be in contravention of the international human rights of Australian women and specifically same sex attracted women, the people we used to call lesbians.

Alsalem attempted to intervene in Tickle v Giggle in March 2024 but was refused on the grounds that her submission was too late, Alsalem was asked to submit her opinion to the AHRC to inform their submission. When the opinion was clearly ignored by the AHRC submission (referenced above), Reem Alsalem published her submission on social media.

Bridie Nolan attempted to read Reem Alsalem’s position paper in her summing up and I’ve never seen a group of lawyers jump out of their seats as fast as did the counsel for Tickle and AHRC, in an attempt to prevent the words of the Special Rapporteur being read out loud and on record.

What Reem Alsalem was arguing in her attempt to intervene in the case was that the internationally secured human rights of women declared by CEDAW are very obviously in reference to ‘a biological female’.

Alsalem goes on to say that ‘international law does not permit any derogation to the prohibition of discrimination against women based on sex’. She said that no conflict between sex and gender identity should be resolved with the corruption of the category of sex or the subordination of obligations to ‘not to discriminate based on sex to other rights’. She stated that, ‘While some treaties may permit derogations from human rights obligations, such exceptions must not involve discrimination on the ground of sex.’

I’ll confess up front that Reem Alsalem has become a hero of mine. In her attempt to intervene in the case, Alsalem not only upheld the sex based rights of women, she defended the rights of a small subset of women that are disproportionately affected by the erasure of sex with gender identity, lesbians. Alsalem stated that as a consequence of the word ‘woman’ being biological in CEDAW, ‘CEDAW Committee’s reference to lesbian women can only be understood to mean biological females that are attracted to biological females’.

As I was preparing to fly out of Sydney, I started to receive texts from my husband to check where I was, because he had heard there was some kind of lunatic on the loose at Bondi Junction. As the Bondi Junction massacre has unfolded it has become very clear that women are still able to be identified and discriminated against in a public place without any reference to gender identity, and that women and girls require ongoing protection in law on the basis that they are vulnerable because of sex.

Laws that erase the existence of sex ignore the inherent existence of the criminality that males uniquely display toward women and girls and removes the existence of misogyny from cultural management mechanisms.

Unfortunately, the Tickle v Giggle hearing, that is presided over by Justice Robert Bromwich, will only interpret the law and will not decide if the laws that the prosecution rely on have been legally legislated. If Sall Grover loses the case, she will appeal the constitutional validity of the ruling in the High Court.

Edie Wyatt writes on culture, politics, and feminism. She tweets at @msediewyatt, blogs on Substack and you can catch her on Welcome to the Dollhouse