Sex Is Not Gender: How the Tickle v Giggle Ruling Eradicates Female Rights

In 2024, Federal Court Justice Robert Bromwich ruled in Tickle v Giggle for Girls Pty Ltd that "in its contemporary ordinary meaning, sex is changeable." The Full Federal Court upheld this decision in 2026.

At the heart of this controversial judgment is a fundamental confusion: the conflation of sex and gender. This error has far-reaching consequences for women’s rights and protections.

Sex Is Not Gender: Clear Definitions and Contrast

Term	Definition	Basis	Changeable?	Observable?
Sex	The biological classification of humans as male or female, determined by the type of gametes (reproductive cells) an organism is organised to produce.	Biology (chromosomes, gametes, reproductive anatomy)	No (immutable)	Yes
Gender	The social, cultural, and psychological roles, behaviours, and identities associated with the sexes. Often used today to mean subjective "gender identity".	Social / Psychological	Yes (subjective)	No

Key contrasts:

Sex is binary, material, and rooted in reproduction. At its core, sex is defined by reproductive function: Males are the sex that produces small gametes (sperm) and can fertilise; females are the sex that produces large gametes (ova), can be fertilised, and can gestate and produce a baby. This reproductive distinction is the fundamental reason sex exists in humans and almost all other sexually reproducing species.
A person who cannot currently reproduce due to age, illness, injury, or a disorder of sexual development (DSD) does not change sex. A sterile male remains male. A woman who has had a hysterectomy or is post-menopausal remains female. Disability or dysfunction does not reclassify a person into the opposite sex.
Gender (as currently used) is largely a social construct or personal feeling. A person can identify as male, female, both, or neither - but this does not alter their biological sex or reproductive reality.

The Tickle v Giggle judgment effectively treated these two distinct concepts as interchangeable. By declaring that sex is "changeable" and includes "social presentation" and "legal recognition," the court allowed gender identity to override biological sex in law.

Core Flaws in the Ruling

False redefinition of sex
The court claimed sex is not strictly biological and can be changed. This contradicts the foundational biological definition of sex based on reproduction.
Conflation of two different categories
The Sex Discrimination Act 1984 was originally designed to protect people on the basis of biological sex. The court blurred this distinction.
Ignoring material reality
Biological males retain significant physical advantages over females even after transitioning.

How This Disempowers Females

Loss of single-sex spaces: Women and girls lose the right to privacy and safety in change rooms, shelters, prisons, and female-only services.
Fairness in sport: Biological males who identify as women can compete in female categories, displacing female athletes.
Safety risks: Males commit the vast majority of sexual and violent crimes. Redefining sex removes women’s ability to create female-only environments that reduce these risks.
Medical and data integrity: Sex-based medicine becomes confused when biological males are recorded as female in health records.
Dilution of women’s rights: If "woman" includes any male who identifies as one, women’s advocacy groups, political quotas, scholarships, and services lose their original meaning and effectiveness.

Conclusion

Sex is not gender. One is an immutable biological fact grounded in reproduction; the other is a subjective experience. Australian law should recognise this clear distinction.

The Tickle v Giggle decisions represent a serious threat to female rights. Legislative reform is now urgently needed. Parliament should clearly define sex as biological, binary, and immutable - based on reproductive function - in the Sex Discrimination Act.

Females deserve spaces, sports, and services based on biological reality - not legal fictions.