AI, Assumptions and Unlawful discrimination: Practical Lessons from Giggle v Tickle

On 15 May 2026, the Full Court of the Federal Court of Australia handed down its decision in Giggle for Girls Pty Ltd v Tickle [2026] FCAFC 64, dismissing the appeal from Giggle for Girls and upholding the finding that Giggle for Girls had unlawfully discriminated against Ms Roxanne Tickle. The Court also allowed Ms Tickle’s cross-appeal and increased the award of damages to $20,000. In doing so, this case provides clarity about how the protections against discrimination based on gender identity apply in practice. Importantly, this case also demonstrates that single sex spaces must not take an exclusionary approach to people of diverse gender identities seeking to access their services.

The Decisions

Giggle for Girls is an online app designed for women. Ms Tickle, a transgender woman, was blocked from accessing the Giggle app on the basis that Giggle’s CEO, Sally Grover, did not consider her selfie was that of a woman. In August 2024, a judge of the Federal Court found that the appellants had engaged in indirect discrimination under the Sex Discrimination Act 1984 (Cth) (SD Act), in excluding Ms Tickle from the Giggle App because they had imposed a condition on access to the App that operated to disadvantage transgender women. The Court awarded Ms Tickle $10,000 in damages. You can read our earlier alerts on the original decision here and here.

In the present case, the full Federal Court dismissed the appeal from Giggle for Girls and allowed Ms Tickle’s cross-appeal. In allowing Ms Tickle’s cross-appeal, the Court found  that instead of engaging in indirect discrimination, Giggle for Girls had engaged in two instances of direct discrimination on the basis of Ms Tickle’s gender identity; first, by excluding her from the app and the subsequent decision to refuse to readmit her. The Court awarded Ms Tickle an increased amount of $20,000 in damages.

The Court did not consider whether the Giggle for Girls app could be a special measure for the purposes of achieving substantive equality for women under the SD Act. However, the Court noted that to the extent that it could be a special measure, it did not permit organisations to discriminate on the basis of other protected attributes in granting access in accordance with that special measure, in this case, only providing the service to cisgender women or women who fit a certain appearance standard.

Beyond its discrimination findings, this case tackles a growing issue: the use of artificial intelligence in decision-making. Giggle for Girls relied on third-party facial recognition software said to detect gender with 94% accuracy, alongside human moderation. Here, it was the human moderation that led to Ms Tickle’s removal. The Court made it clear that AI is no shield: organisations remain legally responsible for decisions made with or by their systems.

Critically, the Court found that Ms Tickle’s removal was not a neutral outcome of AI screening, but a human decision shaped by subjective assumptions about what a woman “looks like”. The Full Court made clear that the use of AI systems does not absolve the humans or organisations behind them of legal responsibility for the decisions those AI models make. 

Key takeaways for organisations

• The law has moved beyond binary or purely biological definitions. The Full Court’s reasoning reinforces that discrimination law protects gender identity, including gender-related appearance and presentation. Organisations should be cautious about policies, practices or decision-making criteria that assume there is only one lawful or fixed way to define who is a woman, man or non-binary person. While there has already been political commentary about amending the SD Act to define biological sex, the current legal position remains that gender identity is protected and must be accommodated in the design and delivery of services.
  
  
• Single-sex services and spaces require careful, lawful design. Schools, sport and recreation providers, community organisations, apps and other service providers cannot assume that a single-sex purpose allows them to exclude transgender people. Even where an exception or special measure may be available, it must be applied carefully and cannot be used as a blanket justification for excluding people because of another protected attribute.
  
  
• National consistency cannot be assumed. While this decision concerns the federal SD Act, organisations also need to consider state and territory anti-discrimination laws. The scope of exceptions, exemptions and protected attributes varies across jurisdictions, which is particularly important for organisations operating nationally or delivering services across multiple states.
  
  
• AI does not remove organisational accountability. Organisations remain responsible for decisions made with, or supported by, automated tools. A decision that appears to be generated by technology can still expose an organisation to liability if the system, its inputs, or the human review process produces a discriminatory outcome.
  
  
• Human oversight must be meaningful, not symbolic. Where AI is used in screening, access, eligibility or other decision-making processes, organisations should ensure that human review is properly informed, documented and capable of correcting bias rather than reinforcing assumptions. This is particularly important where decisions affect access to services, safety, inclusion or participation.
  
  
• This is a governance issue, not just a legal technicality. Organisations should review policies, onboarding and access processes, complaints pathways, AI governance frameworks and staff training to ensure they can make defensible, respectful and legally compliant decisions in sensitive inclusion matters.

How we can help

Our Safeguarding and Discrimination teams routinely support organisations to navigate the nuanced legal issues arising from inclusion of individuals of diverse sexuality and gender identity, as well as understanding circumstances where discrimination is lawful. Our Privacy team can also support your organisation to embed AI into your operations in a way that minimises the risk of inadvertent discrimination.

Contact us

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^{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}