9 The respondents deny in any event that they engaged in any unlawful discrimination by way of either direct or indirect gender identity discrimination. The respondents deny that the applicant is entitled to any relief, and in the alternative contend that any damages awarded should be minimal. The respondents also challenge the validity of the provisions of the Qld BDM Registration Act that allow the change to a person's registered sex on the basis that those provisions are in conflict with the SDA and thus inoperative by reason of the operation of s 109 of the Constitution. As will be dealt with in detail later in this judgment, that challenge is misconceived and must fail.
10 I have concluded that the gender identity discrimination provisions in the SDA are valid because they are supported by s 51(xxix) of the Constitution (external affairs power) as an enactment of Australia's obligations under Art 26 of the International Covenant on Civil and Political Rights (1966) (ICCPR). Their application in the present case is also supported by the power in s 51(xx) of the Constitution (corporations power), by reason of Giggle being a trading corporation and Ms Grover, its officer.
11 The SDA according to its objects seeks to give effect to the Convention for the Elimination of All Forms of Discrimination Against Women (1979) (CEDAW), and the respondents argued that CEDAW does not and cannot support the gender identity discrimination provisions in the SDA. It has not been necessary to decide whether s 22, when read with s 5B, is generally supported by CEDAW, via the external affairs power. This is because the kind of discrimination that Ms Tickle complains about does not engage CEDAW in relation to the SDA any event, not being discrimination in favour of a man or men. It is well established that questions of constitutional validity should ordinarily only be determined if they properly arise on the case that has been brought: LibertyWorks Inc v Commonwealth [2021] HCA 90; 274 CLR 1 at [90].
12 For the reasons that follow, I have decided that the outcome of Ms Tickle's suit should be as follows:
- (a) Ms Tickle's claim of direct discrimination fails, which was not really the case that she brought;
- (b) Ms Tickle's claim of indirect discrimination succeeds, being the substance of the case that she did bring based on a condition being imposed for the use of the Giggle App that she was required by that condition to have the appearance of a cisgender woman;
