What landmark rulings mean for trans workplace discrimination

The Federal Court has made a landmark ruling in a trans workplace discrimination case that will likely have implications for Australian workers. Trans woman Roxanne Tickle was awarded $10,000 after it was found she had faced indirect gender identity discrimination. She alleged she had been discriminated against after being barred from a “women’s only” app.

This was the first time the Federal Court has ruled on a case concerning gender identity discrimination. It tested provisions of the federal Sex Discrimination Act introduced in 2013. These provisions made it unlawful to discriminate against individuals based on sexual orientation, gender identity or intersex status. 

The Federal Court’s ruling therefore will have broader implications with regard to gender identify trans workplace discrimination. Legal experts anticipate that it will influence how employers create gender-based services and policies. It could also influence future court decisions in employment disputes involving gender identity workplace discrimination.

In this article, we detail the events of this landmark case. We also look at another case of trans workplace discrimination where a trans McDonalds worker won over $1.3 million in damages.

Trans woman’s exclusion from female-only app ruled as unlawful discrimination

In the Federal Court of Australia case Tickle v Giggle for Girls Pty Ltd (No 2) [2024]. The case involved 52-year-old Roxanne Tickle, who was born a man and began identifying as a woman in 2017. Her birth certificate stated that she was female, having undergone gender affirming surgery in 2019. Ms Tickle told the Federal Court that she “feels in her mind that psychologically she is a woman.”

In February 2021, Ms Tickle joined Giggle for Girls, a platform intended as a social networking space exclusively for women. To join the platform, users were required to submit a selfie. Selfie’s were initially assessed by artificial intelligence to verify their gender as female. 

Trans woman alleged gender identity discrimination

Ms Tickle’s selfie was accepted and she was therefore allowed to join the platform. r However, later that year her account was manually restricted. This prompted Ms Tickle to pursue legal action, alleging discrimination due to her trans identify.

She told the Federal Court that up until being blacklisted from the platform, she had not faced trans workplace discrimination. “Up until this instance, everybody has treated me as a woman,” she said.

Founder argued platform was a “women’s only” space 

Giggle for Girls founder Sall Grover argued to the Federal Court that an individual can’t change their biological sex. She said that the platform was intended as an online refuge for women, designed to foster equality between men and women.

The platform was suspended in 2022, but Ms Grover has stated that she intends to relaunch it. Her legal team claimed an exemption from discrimination law based on a “special measure” intended to protect women’s spaces. 

Ms Tickle told the Federal Court that the constant misgendering by Ms Grover caused her to experience continual anxiety and suicidal thoughts. 

Court affirmed that biological sex is changeable 

The Federal Court took issue with Ms Grover’s contention that an individual can’t change their biological sex. It stated that her argument was invalid based on past court decisions.

“Those cases establish that in its ordinary meaning, sex is changeable,” the Federal Court of Australia said. This decision reaffirmed the understanding that gender is not a purely biological matter but also involves social and psychological elements.

Court found Ms Tickle experienced indirect gender identity discrimination

Based on the evidence presented, the Federal Court concluded that Ms Tickle had not been directly discriminated against due to her gender identity. However, it said that “it remains possible that this was the real but unproven reason.”

The court did find that Ms Tickle had faced indirect discrimination as she had been barred from the platform “because she did not look sufficiently female”. As a result of the court’s ruling, Ms Tickle was awarded $10,000 in compensation, plus legal costs. However, her request for an apology from Ms Grover and Giggle for Girls was denied.

Federal Court Justice Bromwich explained that any apology from the defendants would likely be insincere.

“It is plain that any apology given by Ms Grover… would be through clenched teeth and utterly devoid of sincerity,” he noted.

Broader implications for gender identity discrimination in Australia

Ms Tickle expressed that the case had taken an emotional toll on her, particularly given the public and personal vilification she faced. She noted that the ordeal had caused significant distress, stating that the case had “stolen” three years of her life.

“The ruling shows that all women are protected from discrimination,” she said. “I brought my case to show trans people that you can be brave and that you can stand up for yourself.”

Sex Discrimination Commissioner Dr Anna Cody welcomed the ruling, stating, “We now know that you cannot discriminate on the basis of sexual orientation or gender identity.”

In early October 2024, Ms Grover filed an appeal of the Federal Court’s decision

McDonalds employee wins over $1.3M for gender identity workplace discrimination

The landmark Tickle vs Giggle for Girls case will likely have broad implications for future court decisions, including those concerning trans workplace discrimination. Elsewhere in the world, we’re seeing trans employees win large sums of compensation after experiencing workplace discrimination.

This includes the case of a US McDonalds worker who made global headlines in October 2024. It involved trans woman Diana Portillo, who was awarded US$930,000 (over $1.36 million in Australian dollars) for the gender identity workplace discrimination she faced while at McDonalds.

Trans worker faced workplace discrimination from coworkers

Originally from El Salvador, Ms Portillo began working at a McDonald’s franchise in Washington, D.C., in 2011. Initially hired as a customer service representative, she was later promoted due to her strong work performance. However, in 2013, when she began her transition, she faced ongoing harassment from coworkers and managers, according to the lawsuit she filed in 2021.

The lawsuit detailed how managers and supervisors referred to her using male pronouns and her previous male name, despite her requests to be recognised as female. This practice of “deadnaming” encouraged further mistreatment from her colleagues, according to court documents. As stated in the lawsuit, Ms Portillo was subjected to a “barrage of taunts, laughter, ridicule, and harassment because she is a transgender woman.”

Trans worker told not to use women’s toilet

One particular incident occurred in 2016, when a supervisor confronted Ms Portillo for using the women’s restroom. The supervisor reportedly yelled, “What are you doing using the female bathroom?” They then said, “You’re not a woman, you’re a man,” according to the lawsuit. Following this incident, Portillo filed a formal complaint with the D.C. Office of Human Rights, citing trans workplace discrimination and harassment.

Eight days after filing her complaint, Ms Portillo was fired by her employer, International Golden Foods, LLC, which operates the McDonald’s franchise. The company claimed the termination was due to Ms Portillo’s undocumented status as an immigrant. In her lawsuit, Ms Portillo’s argued that this reason was a pretext for retaliation. Her legal team provided evidence that showed the franchise had knowingly hired other undocumented workers without taking similar action against them.

Trans Workplace discrimination legal proceedings and verdict

Ms Portillo’s civil trial examined her allegations of workplace discrimination, harassment and retaliation. The jury determined that she had been dismissed not because of her immigration status, but in retaliation for her complaints about trans workplace discrimination.

Ms Portillo was awarded US$700,000 in punitive damages and $230,000 for emotional distress. The verdict is considered to be the first jury decision in Washington, D.C., involving trans workplace discrimination under the city’s Human Rights Act.

“This verdict puts other employers on notice that tolerating harassment of transgender employees is both unlawful and costly,” Ms Portillo’s lawyer stated.

Teacher suspended for allowing trans daughter to join girls’ volleyball team

In July 2024, another story of trans workplace discrimination made global news headlines. It involved Jessica Norton, an employee of a Florida school who was suspended for allowing her daughter to play on the school’s girls volleyball team. Monarch High School suspended her for 10 days without pay for violating state law. In 2021, Florida passed the Fairness in Women’s Sports Act which restricts transgender girls and women from competing on female sports teams.

The controversy over Ms Norton’s actions began in November 2023 when it was discovered that her daughter had been playing on the school’s girls’ volleyball team. As a result, the Florida High School Athletic Association fined the school US$16,500 and placed it on probation for a year. Additionally, Ms Norton’s daughter was banned from participating in any state-sanctioned sports teams for approximately one year.

Ms Norton’s suspension has garnered national attention in the US, particularly amid growing debates about the rights of transgender athletes in school sports. Florida is one of at least 26 states with legislation that limits or restricts transgender athletes’ participation in sports based on their gender identity.

Details of the suspension

The school’s board decided to suspend Ms Norton after deeming dismissal as too harsh. This was after it considered that this was her first offence and that she had worked for the school for over seven years. However, the board argued that Ms Norton’s actions knowingly violated the law.

“She knew what the law was, she made a decision not to follow the law, and that needs to have consequences,” said board member Debbie Hixon during the discussion.

Following her suspension, Ms Norton told local media that she did not feel it was the right decision. She had been reassigned from her position at the school in November 2023 and has since been on paid leave.

Teacher launched lawsuit against state law

In 2021, Ms Norton and her daughter filed a federal lawsuit against Florida governor DeSantis and several state officials. The lawsuit argues that the Fairness in Women’s Sports Act infringes upon her daughter’s civil rights. This case is still pending.

Following the school’s decision to reassign Ms Norton, hundreds of students staged walkouts and protests in support of her daughter. Several school officials, including the principal, took part in the protests. 

Ms Norton told media that she acted in her child’s best interests. “I was protecting my child. Again, I did nothing wrong,” she said. Ms Norton also claimed that the ordeal has brought negative attention to her family, which has resulted in harassment and threats.

Ongoing legal challenges

The Norton family continues to face both legal and public scrutiny. Although the school board’s decision has temporarily concluded Ms Norton’s professional fate, her daughter has since left Monarch High School and is now enrolled in an online school. Ms Norton and her family’s lawsuit against the state over the Fairness in Women’s Sports Act remains unresolved.

Have you faced workplace discrimination?

Get in touch with our team today for a private conversation about your situation. We at A Whole New Approach are Australia’s leading workplace mediators. With us, you can make the best workplace discrimination case at the Fair Work Commission. We’ve helped over 16,000 Australian workers take action through the Fair Work Commission.

Give us a call on 1300 766 700  for expert guidance on how to approach your Fair Work action.