Andrew L. Urban
Charles Dickens maintained that “The one great principle of the English law is to make business for itself”. Yesterday in the Federal Court’s decision to uphold Tickle’s appeal against Giggle for Girls, my cynical antenna detected such a motivation. I say this because Giggle’s Sall Grover very publicly flagged that she would, in such a circumstance, pursue her case to the High Court. Much business for the profession there … follows much business earlier.
Associate Professor Benjamin Barton, of the University of Tennessee College of Law, put the question, Do Judges Systematically Favor the Interests of the Legal Profession? in the Alabama Law Review of December 2007. In what may be termed the Barton Hypothesis, he answered his question thus at page two of his 52-page (14,821 words) paper:
“Here is my lawyer-judge hypothesis in a nutshell: many legal outcomes can be explained, and future cases predicted, by asking a very simple question: is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.”
One reason for my own cynicism is the very nature of the Federal Court’s judgement, upholding the previous decision against Giggle; wholly woke, wholly counter to common sense and to biology, siding with gender ideology. It means women no longer have the right to gather in their own spaces without the presence of biological men.
As Stephen Rice writes in The Australian, “When parliament passed poorly drafted amendments to the act in 2013 giving protections for “gender identity”, it clearly never intended that biological boys would sleep in girls’ dormitories, or that biological men would be locked into prison cells overnight with vulnerable women.
“It is past time for parliament to step in and deliver some basic commonsense.
“There is nothing, even now, in the omnishambles legislation that required the Federal Court to give gender identity precedence over sex. The judges did that all by themselves.
“Justice Bromwich had originally found that Grover only indirectly discriminated against Roxanne Tickle, because she didn’t know she was dealing with a transgender woman – she just saw someone who looked like a man.
“The appeal judges have said that doesn’t matter. You can be directly discriminating against someone because of their male appearance, according to the Full Court, because male appearance is a gender-related characteristic of transgender women.
“You might have thought male appearance was, well, because someone was born male.”
And as Giggle’s Sall Grover put it after the judgement, “We’re not opposing other people having protections that they need, but you cannot take away our protections to get yours,” she says. “That’s not how human rights work.”
Except in Australia, apparently.
Tickle’s case was supported by Sex Discrimination commissioner Anna Cody and endorsed by the Australian Human Rights Commission and LGBTQI+ group Equality Australia. Ms Grover’s case had been crowd-funded
As Plato used to say, “The worst form of injustice is pretended justice.”