Referring to the Federal Court’s decision to dismiss Grover/Giggle’s appeal in May 2026, the High Court has reasoned that “There is no reason to doubt the Full Court’s construction” of ss 7D(1) and (2), and an appeal dependent on demonstrating error in that construction had “insufficient prospects of success” to warrant special leave.” The result is that excluding Tickle from the Giggle app constituted discrimination on the ground of gender identity under the Sex Discrimination Act. Biological sex no longer figures in protecting women’s rights. By law.
The High Court was deciding whether the case deserved to proceed to a full High Court appeal. It was not conducting a third merits hearing on all the evidence and arguments. Special leave is a threshold gateway. The applicant ordinarily needs to identify an issue warranting consideration by Australia’s ultimate appellate court—typically a question of public importance, an important legal principle, or a sufficiently arguable error requiring correction.
Here, the High Court effectively concluded: “The Full Court’s statutory construction was not sufficiently doubtful, and the proposed challenge did not have sufficiently strong prospects, to warrant the High Court spending its appellate jurisdiction on it.”
A major part of Grover’s proposed appeal concerned the interaction between sex, gender identity and the statutory “special measures” provisions.
Grover’s position was essentially that a women-only service could exclude people whom she regarded as biologically male while relying upon the Act’s provisions permitting measures designed to achieve substantive equality between groups. Her argument treated “men” and “women” in the relevant provisions as referring to biological sex, distinct from “gender identity.”
The Full Court rejected that construction.
THANK YOU JULIA … AND ALBO
As Sal Grover and about a zillion others have repeatedly urged the government to do is to reverse Julia Gillard’s “it was a different time” intervention over a decade ago by removing the definition of woman in the Sex Discrimination Act and define sex biologically and specify the consequences for sex-specific provisions. Biological reality is now against the law. But when asked if he would move to change the definition, PM Albanese dodged the question by claiming the issue is part of the culture wars and he isn’t interested in the culture wars. (Yes, Prime Minister…)