In May, the Full Court of the Federal Court of Australia ruled that Sall Grover, the proprietor of a women-only app Giggle for Girls, had discriminated against a transwoman, Roxanne Tickle, for denying Tickle access to the app.
Sall Grover did not know that Roxanne Tickle identified as a woman. But it was clear to Grover from the selfie Tickle submitted that she was looking at a biological man. The Federal Court judges decided that by excluding Tickle from her app, Grover had contravened the Sex Discrimination Act, amended in 2013 to make it an offence to discriminate against a person because of their “gender identity”.
Reading the Federal Court’s judgment in Giggle for Girls v Tickle is hard work. Its tangled reasoning and sentences requiring three readings contrast with the simple prose and transparent argument of the judgment handed down in 2025 by the Supreme Court of the United Kingdom in For Women Scotland Ltd v The Scottish Ministers. The reason for this difference is that the Supreme Court retained the straightforward biological distinction between male and female while the Federal Court became confused as it tried to blur the line between sex and gender.
Two of the three Federal Court judges construed the Sex Discrimination Act to mean that sex is mutable and that a transwoman is in fact a woman. The third said it was not necessary to decide. While their stated purpose was to interpret the Sex Discrimination Act, any fair reading of the judgment shows that the judges accepted Roxanne Tickle’s beliefs about sex and gender and rejected Sall Grover’s.
The Supreme Court in London ruled that, while transgender people are protected against harassment and discrimination under the UK Equality Act, “sex” means biological sex and therefore a “woman” is a biological woman, a person born female, and a “man” is a biological man, a person born male. If an individual says they are transgender, that individual may have changed their gender, but they have not changed their sex.
By contrast, the Federal Court judges are hazy about biology, believing that in law gender reassignment surgery can turn men into women. It can’t; nor can hormone treatment. They can only alter certain sex characteristics. For a refresher in biology, the judges might like to read this article by biologist Colin Wright who explains the difference between gametic dimorphism and the variety of secondary sexual characteristics.
Trans activists claim that the existence of people with “intersex” characteristics invalidates the male-female binary. That’s like arguing the existence of peanut butter and jam sandwiches proves that peanut butter sandwiches and jam sandwiches do not exist. “Intersex” covers dozens of disorders or variations in sex development and affects one in every 5000 babies. For a medical view on the trans lobby’s appropriation of the diverse experiences of people with intersex characteristics see this post by biologist Dr T.
Discourse maketh the world
To understand the intellectual origins of the opinions expressed by the Federal Court we need to go to the foundational work of Judith Butler, the philosopher most responsible for the gender ideology that lies at the heart of Giggle v Tickle.
In her 1993 book Bodies That Matter, the follow-up to her breakthrough book Gender Trouble, Butler argued that bodies are not given by biology but are constructed by our “psychic and discursive schemas”, that is, by the images and words that describe them. She was working within then-fashionable French post-structuralist philosophy in which the world is composed from the language and meanings used for it. Bodies are saturated in psychic investments and cultural meaning so that both sex and gender are “discursive categories”, that is, constructed by the language we use to speak of them.
Butler questioned the very existence of a sexed or gendered body prior to its creation through language or discourse. When the doctor declares “It’s a girl” they are not reporting a natural fact; they are making a statement that assigns a sex and a gender to the baby’s body as it comes into existence. (The radiographer may have beaten them to the punch.)
To be fair, Butler is not a pure philosophical idealist, that is, committed to the belief that all reality springs from consciousness or the mind. She does not believe that the material body is nothing more than an effect of the psyche. Yet for her, each material thing is bounded and constituted through discourse and power hierarchies and if there is anything that persists then that only calls for more description “within the cultural fabric of lived experience.” In the end, the body is “transmuted and projected” from the psyche. “It’s a girl!” creates the girl as an intelligible category.
All of this sounds weird to anyone not invested in the genderist way of thinking. They might simply ask: “Well, doesn’t the doctor inspect the genitals and announce it’s a girl rather than it’s a boy?” Declaring “It’s a girl” is not arbitrary, with no reality behind it; the doctor is not assigning a temporary marker until the child works out their sex once they get in touch with their “inner sense and feeling”.
Of course, the baby girl can grow up into all kinds of girls, taking on various markers of femininity or not as the case may be. And she may adopt one of several gender types. She may even wish that she had been born a boy and take steps to make her wish come true. That’s fine. Let’s hope it works out for her. But she was born a girl and nothing—no change of clothing, no hormones, no surgery—can change the essential cellular biology of her body.
The lesbian phallus
In a previous post I wrote that Butler’s thinking owes a lot to the French post-structuralist philosophy Michel Foucault, who argued that “sex” isn’t simply a biological fact but something shaped by culture and power. Butler also develops her ideas in conversation with the psychoanalyst Jacques Lacan, the “French Freud.” For Lacan, the phallus isn’t the penis but a symbol of power and authority. In theory, anyone could hold that symbolic position, not just men. But critics pointed out that if the phallus has no real connection to male anatomy, why does it always end up attached to men anyway, with women cast as the ones who lack it? In practice, the theory smuggled back in the very male privilege it claimed to dissolve.
By the time Butler wrote Bodies That Matter, she had already made her best-known argument that gender isn’t something we are but something we do, repeatedly performed rather than biologically fixed. Her critics pointed out that she had left unanswered an obvious question: what about the body itself? Surely anatomy is real, whatever we say about gender. Bodies That Matter was Butler’s attempt to answer this challenge by engaging with Lacan.
Butler turned Lacan’s own logic against him. If the phallus really isn’t tied to the penis, then nothing stops it being claimed by bodies that don’t have one, like lesbians, hence the idea of the “lesbian phallus.” Her point wasn’t simply that women could now claim the phallic symbol but also that the body’s sexual anatomy is shaped by symbolic meaning rather than being given by nature. The lesbian phallus may appear to be one of the more extravagant products of post-structuralist theory, yet it encapsulates in vivid form the philosophical move that made it possible to disconnect sex and gender from anatomy.
For trans activists this means a transwoman is a woman, with or without the surgery. It is this thought that permits gender ideology to insist that for a man to become a woman he only has to think of himself as one, to reimagine his gender. This raises the awkward question (consistent with Butler’s argument that gender is performative all the way down) of why a transwoman would have surgery to remove the most prominent signs of his manhood. It would be cheaper and less painful to just think the genitals away.
Consistency is not a strong suit of gender ideology, which has never reconciled the performative account of gender with the older idea that one can be “born in the wrong body.” The born-in-the-wrong-body trope is taught in primary schools. The mismatch is attributed by some to a glitch in foetal brain development.
He said, she said
Butler’s ideas did not travel directly from philosophy seminars to the Federal Court. They were absorbed over three decades into university syllabuses, teacher education, public administration, diversity training, activist organisations, and human rights bodies before becoming embedded in legal culture. By the time Giggle v Tickle reached the bench, judges no longer needed to have read Judith Butler; they were already operating inside the conceptual framework she had done so much to develop, one in which the lesbian phallus represents the detachment of sex and gender from anatomy
In Giggle v Tickle, the Federal Court began with discourse. It opined that in Australia “ordinary usage” of language accepts that a man who presents as female, with or without surgery, has become a woman (see paragraphs 281-283). In this view, language can transform a man into a woman. The three justices went further by deploying the loaded terms of gender ideology. They use the phrase “assigned male at birth” or “designated male at birth”, interpreting a biological observation as an arbitrary decision by a doctor.
They also adopt the term “cisgender.” In fact, they use it 84 times. In the genderist lexicon, “cisgender” is the term of art for someone whose inner gender identity happens to match their body (so not “transgender”). Instead of male or female being a matter of biological fact established at conception it becomes just one possible, self-chosen alignment of identity.
By labelling non-trans people “cisgender”, the Federal Court imposed the identity-language of queer theory onto everyone, whether they accept gender ideology or not. Sall Grover told the Court she did not accept the term “cisgender” because she believes in the reality of biological sex, but her objections were simply dismissed.
In effect, in Giggle v Tickle the Federal Court imported into statutory interpretation a post-structuralist ontology, that is, a conception of reality as constructed by discourse. While not consciously echoing Judith Butler, the judges reasoned within conceptual categories that Butler did more than anyone else to establish—that sex is constituted through social meaning, that language helps create the reality it names, and that biology cannot settle the question of what a woman is. In other words, the worldview Butler summed up with “the lesbian phallus.”
By embracing the trans activists’ framing of sex and gender, the Federal Court judgment turns black-letter law into rainbow-letter law.
Was the Federal Court right to argue that the public accepts, by the language it uses, that a transwoman is a woman? In the real social world, there is a wide difference between, on the one hand, treating a transwoman as a woman, including referring to her by female pronouns, as a matter of politeness and consideration, and, on the other, believing she actually is a woman. Many are happy to refer to a transwoman as “she” while most also believe men and women should have separate change rooms, toilets, and sports competitions.
There is not much good quality survey data on this for Australia but in Britain a poll by the respected YouGov shows some three quarters oppose transgender women competing in women’s sports, a number that is rising. When politeness and biology come into direct conflict, as they do in the phrase “her penis”, people overwhelmingly believe that the male characteristic overrules the gender identification.
LGB + T = ?
Butler’s gender ideology flourished in Western countries because it was taken up by trans activists and presented as no more than the next step in the modern process of liberation that began with the sexual revolution, second-wave feminism, and the struggle for gay and lesbian rights in the 1960s. It seemed natural for progressive politics to take up the cause. Even conservatives in the Australian parliament voted in 2013 to change the Sex Discrimination Act to include gender identity among proscribed forms of discrimination and to excise the definitions of “woman” and “man”.
Today, many people are realising that adding “T” to LGB was not a simple widening of the struggle but an ontological leap they had not signed up to, a leap that dissolved the distinction between sex and gender, reframing biology as discourse, with all kinds of consequences they are now not willing to accept.
Trans activists have over-played their hand and the process of reasserting the distinction between sex and gender, led by feminists and lesbian activists, is well under way. Bodies such the International Olympic Committee and the Supreme Court of the United Kingdom agree. Even so, gender ideology has become so embedded in institutions that it will take years to root out.
In Bodies That Matter, Judith Butler wrote: “I have consigned the penis … to the realm of the imaginary.” Unfortunately for those who seek women-only and lesbian-only spaces the penis is all too real. Now, the justices of the Federal Court have decided that women like Sall Grover are wrong to view the penis in this way, and those who act on their sincerely held belief in the reality of biology are acting unlawfully and are liable to punishment.
Compounding its mistake, the Court ordered Sall Grover to pay $8,000 in aggravated damages for “misgendering” Tickle because she repeatedly used “he” and “him” in court. So that’s $8,000 for expressing her belief in a court hearing the essence of which was to decide whether Tickle is male or female. In May this year, French feminist Dora Moutot was penalised for saying in a television debate: “As women, we are obliged to be wary of people with penises”. Coincidentally, Moutot’s fine was €4,754, or A$8,000. Speaking truth to power is expensive these days.