The appeal in Giggle v Tickle comes in response to last year’s high court decision in which Justice Robert Bromwich found that Tickle—a biological male who identifies as a woman—had been indirectly discriminated against on the basis of gender identity under the Sex Discrimination Act.
Tickle had been removed from the Giggle app by founder Sall Grover after Grover viewed a profile photo and determined that Tickle was male. The court awarded Tickle $10,000 in aggravated damages and ordered Grover to pay legal costs up to $50,000.
Tickle’s legal team now argues that the trial judge failed to fully account for Grover’s conduct after the initial removal from the app. They say Grover’s public statements, misgendering, and online commentary formed a continuation of the discrimination rather than a separate issue.
Citing legal precedent, Tickle’s counsel told the court that repeated references to Tickle as a man after legal transition and public identification as a woman could not be considered “bona fide opinion,” but rather, were acts that reinforced and aggravated the original harm.
The lawyers also claim the trial judge did not adequately consider the impact of Grover’s behavior in public and in the media, including courtroom conduct where she reportedly laughed involuntarily at the sight of a candle bearing Tickle’s caricature labeled with the scent “sweaty balls.” The item had been created by a Giggle supporter and introduced as evidence.
At the center of the case is Giggle’s policy of excluding males, as it is a girls-only app. Tickle’s legal team maintains this condition disproportionately impacts men who identify as women and constitutes unlawful discrimination, regardless of Grover’s intent.
In the current appeal, Tickle’s lawyers are seeking a finding not just of indirect, but also direct discrimination. They argue Grover treated Tickle differently based on appearance, which under the law, they say, is sufficient to establish a direct breach of the Sex Discrimination Act.
Grover has maintained that the app was designed exclusively for biological women and claims the exclusion was a “special measure” meant to promote equality for women.
However, Tickle’s legal team says this argument is flawed and was not properly pleaded during the original trial. They argue that Giggle has shifted its position on appeal—from initially asserting that the app was for biological women, to now saying it is for a “subset of women.”
Tickle’s counsel says this shift allows the company to sidestep the legal question of whether excluding men who identify as women actually achieves equality under the Act.
Tickle’s lawyers are also challenging the trial judge’s conclusion that Grover did not know Tickle’s gender identity at the time of removal. They insist the law does not require knowledge or intent—only that the effect of the action resulted in discrimination.
Further, they argue that Grover’s refusal to reinstate Tickle to the app after reviewing a second selfie, where Tickle again presented as a woman under the name “Roxy,” constitutes a second act of discrimination, reports Stephanie Bastiaan, who is covering the case.
The legal team has requested that the Court consider both the initial removal and the refusal to reinstate as two separate discriminatory acts, which would be significant not just for liability, but also for the assessment of damages.
Tickle’s counsel concluded that the court must update its understanding of the psychological and social impact of gender identity discrimination, and that damage awards should reflect “contemporary expectations about respect for identity, equality, and safety.”
The hearing is continuing before Justice Perry, who reminded attendees at the start of proceedings that recording or photographing the livestream constitutes contempt of court.
