Interpretation
The case is the first time alleged gender identity discrimination has been heard by the federal court and goes to the heart of how gender identity – and being a woman – is interpreted.
I can remember when being a woman – the brute fact part of it – didn’t require interpretation. A tree is a tree, a bird is a bird, a woman is a woman. What follows from that is infinitely discussable, but the mere word, not so much.
On Tuesday, federal court justice Robert Bromwich heard Tickle has lived as woman since 2017, has a birth certificate stating that her gender is female, had gender affirmation surgery and “feels in her mind that psychologically she is a woman”.
But what does “has lived as a woman” mean? Especially when it’s a man who claims to have done so? You can pretend to be a woman, you can fantasize being a woman, you can live according to your ideas of how a woman lives, but just plain “has lived as a woman”? The meaning is somewhat opaque. Seeing as how that’s what the case is about, such opaque claims should be avoided.
In her opening remarks, Tickle’s barrister Georgina Costello KC said that “Ms Tickle is a woman” but that “the respondents flatly deny that fact”.
That’s because it isn’t a fact. The respondents flatly deny it because it’s not true. A mere twenty years ago everyone knew it wasn’t a fact that this guy here is a woman. Now we’re required to lie about it. We refuse.
I’m guessing “Tickle” isn’t the surname he was assigned at birth.
“Roxanne Tickle”. “Barbie Kardashian”. Don’t those names just scream “Take me seriously as a woman!”?
I’ll be amazed if this doesn’t amount to a list of stereotypical behaviour, preferences, and items of clothing, because that’s all he can appeal to or gesture towards. He can waddle into court in an armadillo costume, munching down on Purina Armadillo Chow, but he will never be an armadillo. Ditto with womanface and woman “feelings.”
It’s amazing (and an indication of just how much power trans activism wields) that this case is being heard at all. To quote Ophelia from the “Argument is not magic thread”, “How is the fact that a man is not a woman NOT so self-evident that it’s positively perverse to disagree?” It’s no different than a court hearing a case in which someone claims to be a marmot, or made of anti-matter. It’s equally nonsensical. So the next time someone moans about how helpless and marginalized TiMs are, point them to this idiotic, pointless waste of the court’s attention, which should merit no more time than it would take to dismiss it.
There are lawyers on this blog that can speak with more authority than me, but my experience as an expert witness is that occasionally judges will make a finding of ‘fact’ that is a legal construct, not a physical one. So for example, the physical fact can be X, but under the construct of the applicable law a judge makes a finding of Y instead. We can of course argue that the law, and therefore the judge, is wrong because the law isn’t taking notice of the physical realm. I certainly fall into that camp as a scientist (legislate Pi, or zero sea level rise anyone?). It falls into the case Ken White so often talks about of ranting about what the law should be, rather than what it is. All the more reason that normal people should pay more attention to politics and what politicians are actually up to.
Ah, but “living as a woman” is a rich and varied field! A transwoman could live as a woman who is a butch lesbian taking testosterone and passing as a man might live. I mean, you’d never know unless you asked her — though she might be a woman who lies and says she is a man, so we’re no further along. There’s no wrong way for a woman to live.
Best wait till she spits, scratches her balls, and tells you she’s a woman.
For Roxy Tickle, living as a woman means playing on a women’s hockey team because he did not like the aroma of male change rooms.
1:05 mark of this video.
https://www.youtube.com/watch?v=STX1GCxYEIc
Rob,
This isn’t precisely what you’re talking about, but it’s often the case that the legal definition of something may or may not match that of a subject matter expert, lay person common sense, or either.
If a statute or regulation classifies tomatoes as vegetables, then no court is going to pay much attention to you insisting that botanically, they’re fruits.
Or, there’s this 2022 California case that holds that bees are fish.
Seriously. The link is to a blog post by a law professor explaining the case; he links to the actual opinion if you want to read that. It’s actually not as crazy as it sounds.
“Within the context of the Tickle versus Giggle case before the Federal Court of Australia, the @AusHumanRights recently asked me to give it input on the meaning of the word #woman in the CEDAW. The following statement is based on my reply to the commission while expanding some of the supporting arguments.”
Special Rapporteur on violence against women and girls, Reem Alsalem
https://www.ohchr.org/sites/default/files/documents/issues/women/sr/statements/20240404-Statement-sr-vawg-cedaw-convention.pdf
Thanks to counsel for Roxy Tickle, we now have a definition of woman “Someone who shops for women’s clothes”
This isn’t gender identity discrimination. That would be not allowing a trans-identified woman to access the site because she has the wrong hender identity. This is sex discrimination, which in certain contexts is perfectly legal. The issue isn’t what a ” woman” is. It is whether your gender identity changes your sex. It doesn’t.
The article has a factual error: it states that Tickle’s amended birth certificate has his “gender is female”. This is false, as Queensland birth certificates (like all Australian birth certificates) list a field for sex, and none for gender. So the birth certificate, as amended, falsely claims his sex, not gender, is female.