A Court Finally Answered The ‘What Is A Woman?’ Question — And They Got It Wrong

More than two years after the release of my film “What is a Woman?,” it’s still impossible to get a straight answer to that question from gender activists, liberal professors and political commentators on the Left. They might call you “weird” for asking the question, or call you a transphobe, or call the police. But whatever they do, they won’t respond in any meaningful way to a question that, throughout all of human history up until very recently, has been extremely easy for every living person to answer. They won’t tell you the truth, which is that a woman is an adult human female. Instead, they’ll tell you that the definition of a “woman” is whatever you want it to be.

One of the many reasons this approach isn’t sustainable is that it’s extremely important, from a practical perspective, to have a functional definition of the word “woman.” This isn’t some abstract philosophical exercise. We need a definition of the word “woman” in order to interpret our laws, including the various pieces of civil rights legislation that have been passed over the years. And yet, there haven’t been a lot of court cases addressing the issue. Instead, major legal battles concerning gender ideology have primarily focused on the area of so-called “trans medicine.” The legal issues in those cases — including the landmark Sixth Circuit case upholding Tennessee’s ban on child castration — are about the degree of supposed “consensus” in the medical field on the issue of whether children should be sterilized. They’re about the rights of parents to decide what physicians do to their children but they’re not really about this fundamental, underlying issue — which is the most basic question of all, which is what it means for someone to be a woman, or a man.

This is changing, though, and it’s changing very quickly. Courts overseas are being forced to issue rulings on the definition of womanhood, and unsurprisingly, they are having difficulty conjuring up the right answer. They’re coming up with political rulings instead. The most recent case arrives to us from that perpetually confused country known as Australia, where the Federal Court has just made a landmark decision in a lawsuit by a man who claims to be a woman, and who now uses the name “Roxanne Tickle.” Here’s the background. In February of 2021, Roxanne Tickle downloaded an app called “Giggle for Girls,” which was advertised as a way for women to speak to other women, exclusively. It was specifically promoted as an online refuge by Giggle’s CEO, who said she created the app as a kind of safe environment for women after she suffered some form of sexual abuse in the past.

So, yes, this case is quite literally “Tickle v. Giggle.” It may sound like an episode of Teletubbies, but it is in fact a real court case. 

Initially, an AI program at Giggle looked at Roxanne Tickle’s profile picture and concluded that he was probably a woman. So Tickle was allowed into Giggle. But a few months later, someone at Giggle took a closer look, and concluded that Roxanne Tickle was in fact a man, and that this fact was blindingly obvious to anyone who looked at his picture. So Roxanne Tickle was banned from Giggle, which led him to sue the company for sex discrimination. And ultimately Tickle won. Australia’s federal court decided that Tickle is, in fact, a woman, so Giggle has to pay tens of thousands of dollars in fake damages. (Giggle, in case you’re looking to download it, is apparently offline at the moment, although it’s supposed to relaunch soon. At its peak it had around 20,000 users, so it was never a particularly large platform).

It’s impossible to go any further in discussing this case without showing some footage of what Roxanne Tickle actually looks and sounds like, so here’s a news report that gives you some idea:

This is one of those situations where you obviously don’t need a 50,000-word federal court decision to figure out if Roxanne Tickle is a man or a woman. So how exactly did the Australian federal court arrive at their decision? By what definition of “woman” does Roxane Tickle qualify? If you pull up the decision, not surprisingly, you won’t find an answer to that question. Instead, you’ll find what appears to be the first major court decision that officially defines “woman” to mean “whatever the court says it means.”

From the court’s ruling:

Sex is not confined to being a biological concept referring to whether a person at birth had male or female physical traits, nor confined to being a binary concept, limited to the male or female sex, but rather takes a broader ordinary meaning, informed by its use, including in State and Territory legislation.

I should pause here and let you know what you probably already assumed: the court just claimed that there are more sexes besides male and female, but never at any point names what those other sexes are. This is very common. In fact, out all of the people who tell us that there are more than two sexes, precisely none of them have ever told us what the other sexes are. Just trust me, bro. There are other sexes. Now stop asking questions.

WATCH: Matt Walsh’s documentary ‘What Is A Woman?’ on DailyWire+

The court continues:

…The determination of the sex of a person may take into account a range of factors, including biological and physical characteristics, legal recognition and how they present themselves and are recognised socially.

In other words, according to the Federal Court in Australia, “legislation” and “legal recognition” determines your sex now, along with other “factors” — including what other people think you are and how you present yourself. If you’re “recognized socially” as a woman, then you’re probably a woman. Of course, the problem is that if the definition of woman is: “Someone who is socially recognized as a woman,” we still have no idea what a woman is. Socially recognized as what exactly? What is that thing?

And why does social recognition matter? As far as I can tell, the court never polled all of Australia for its opinion on whether Roxanne Tickle qualifies as a woman. They apparently didn’t ask anyone, in fact. So really the court never determined that Tickle was “recognized socially” as a woman. That factor didn’t come into play. In truth, what the court is saying is that Roxanne Tickle is a woman because the court says so. They’re not conducting any social analysis of how people perceive this person, not that an analysis like that would be relevant anyway.

Specifically, the court said that back in 1984, Australia’s parliament passed a law called the “Sex Discrimination Act,” which protected women from discrimination. But the law never explicitly defined the word “woman” because everyone knew what it meant at the time. So now, a few decades later, the court unilaterally says that you’re a “woman” if the court says you’re one, after weighing a few factors that the court invented. They just kind of read that into the law. The court decides what a woman is. Although the court still cannot say what a woman is.

In effect, Australians are being commanded by their court system to ignore their common sense, which is informed by their knowledge of basic human biology. They’re being asked to ignore their own laws as well. And instead, they’re commanded to obey the ad hoc wisdom of the federal court system. A woman is anyone the court says is a woman. That’s all. End of story. This decision is going to be appealed to Australia’s highest court, but at the moment that’s the precedent that has just been set.

WATCH: The Matt Walsh Show

We don’t have any kind of “landmark” case like this in the United States, at least not yet. But courts in this country are still proceeding on the same principle. This is a case that The Daily Mail first reported on last month, although it’s just starting to get attention now. A family in Maryland lost custody of their 16-year-old autistic son because they refused to pretend that he was really a girl. Apparently, the teenager went through difficult breakup with his girlfriend and attempted suicide in November 2021. He told his friends at the time that he was “LGBT” but still used masculine pronouns, as far as anyone knew.

But instead of treating this teenager as a deeply confused individual suffering from grief over a breakup and probably other mental health problems as well, Children’s National Hospital in Washington, D.C. reportedly determined that the boy suffered from “gender dysphoria” and was really a girl. It’s not clear how they came to that conclusion, or how much the hospital influenced that diagnosis. Then, according to the Daily Mail, the hospital, “used its emergency policies to keep the boy in its units and reported the parents to child protection services.” This went on for more than a month, at which point the child was then forced into foster care with a single mother who reportedly has a previous criminal record for assault. Then in July of 2022, the boy attempted suicide again — and this time the hospital took him back as a “girl.”

Now the boy’s parents are suing Children’s National Hospital, and the legal battle is apparently still underway. It’s been going on for two years. The child is now 19. (There’s conflicting information about whether this lawsuit is still active. The hospital told The Daily Mail it’s been withdrawn by the parents, but the parents deny that. The court filings in this case are sealed because it involves a minor but reportedly, the Fourth Circuit US Court of Appeals is now handling it.)

As it stands, the lawsuit focuses extensively on the hospital’s “non-gendered” chaplain, Lavender Kelley, who’s supposedly overseeing their child’s care. In fact, Kelley is reportedly responsible for finding the child his first foster home. Who is Lavender Kelley exactly? Here’s a photo:

Credit: DailyMail UK

Surprising absolutely no one, Kelley is a gender ideologue and an LGBT activist. The Daily Mail reports that Lavender Kelly posted on Facebook in 2022 that children should be “transitioned” without their parent’s consent if necessary. You might be wondering what a children’s hospital would employ someone like this, who’s clearly focused more on activism than medicine. But as we know, many children’s hospitals — including Children’s National — are activist operations now. This is the same hospital that recently told Libs of TikTok on the phone that they perform “gender affirming hysterectomies” on 16-year-olds and “younger kids.” They openly admitted to removing the uteruses of confused children in order to affirm their supposed gender identity. That’s an act of barbarism that even so-called “trans healthcare providers” typically shy away from, at least in public. It’s too much, even for them. But it’s not too much for Children’s National and their “non-gender” chaplain. This is the kind of hospital that apparently gets to decide whether the government can take your child.

The only way horror stories like this happen is if courts allow them to happen, unilaterally. There’s no law in this country that allows hospitals to take your son away because the hospital says your son is really a girl, just like there’s no law in Australia that says a woman is anyone who says they’re a woman. But courts increasingly have no problem inventing new laws to this effect, and then enforcing them. Rather than answering the question “What is a woman?,” the judicial system is punishing people who actually have a working definition. It’s taking their kids away, in some cases, to very little fanfare.

As I said, that story in Maryland broke last month, and it’s only now getting some degree of attention. What that means is that, as easy as it may be to hope that Australia’s completely unscientific and arbitrary understanding of gender won’t be adopted by judges in this country, the truth is that in at least one case so far, it already has been.