Kirralie Smith will have to apologize to two male-to-female footballers following a judgment handed down in the NSW Supreme Court, in the latest installment of a long-running vilification case.
Justice Belinda Rigg, a judge of the Supreme Court of New South Wales, included the apology as part of a series of orders, which also allows Smith to appeal some parts of a local court judgment on “limited grounds”. However, Smith and the Binary campaign group is ordered to run an apology “forthwith and continuing for 3 months” on “all social media pages and websites over which they have control, including Facebook, Instagram, and X (formerly known as Twitter) and the website of Binary Australia.”
The judgment is here, https://www.caselaw.nsw.gov.au/decision/19f8d228d3ac8e4fa7995cb1
The Apology as ordered reads: “PUBLISHED BY ORDER OF THE LOCAL COURT OF NSW AS VARIED BY THE SUPREME COURT OF NSW
“Following proceedings in the Local Court of NSW (2024/78280) the Local Court of NSW has declared that Kirralie Smith and Binary Australia contravened section 38S of the Anti-Discrimination Act 1997 (NSW) by making and publishing various social media posts between 19 January 2023 and 27 March 2023 and a newsletter dated 19 January 2023 that incited hatred towards, serious contempt for, or severe ridicule of a soccer player on the ground that she is a transgender person.
“Public acts that incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground that the person or group are transgender are unlawful under the Anti-Discrimination Act 1977 (NSW).
“The Local Court of NSW has ordered Kirralie Smith and Binary Australia to pay damages to the soccer player, and to remove the offending posts and to not repeat or continue the offending behaviour.”
As of the time of writing this piece, the apology has not appeared on Smith’s facebook or at Binary.org.au.
The vilification case involved Smith taking information from local community sites and seeking to raise concerns about transgender women playing soccer in women’s teams using two players as an example.
During the three years since Smith first posted, there have been a series of complex cases involving one of the players, an AVPO (Apprehended Personal Violence Order) and suppression orders that extended to the NSW Supreme Court – Smith eventually losing that case. One soccer player had earlier attempted to argue vilification in the NSW Civil and Administrative Tribunal (NCAT) (but was stymied on technical grounds) before the players were successful in the Local Court.
This case was not about carefully worded online comments, but about a series of posts tagged to media outlets and activists that Deputy Chief Magistrate Sharon Freund found incited hatred and serious contempt for the women.
John Steenhof from the Human Rights Law Alliance, which has supported Smith, commented in Facebook post,”Yesterday’s decision in the Kirralie Smith vilification appeal shows why hate speech laws are so bad. The NSW Supreme Court recognised that Kirralie was advocating for women’s safety in sports when she criticised men playing soccer in a women’s league. It’s clearly a public interest issue. However, it upheld the Local Court decision that it was not reasonable to share publicly available information (club details, links, leaderboards) that identified individuals, so Kirralie is still liable.”
However, Justice Belinda Rigg has upheld the finding of vilification in ordering the apology.
A second issue is the large fine of $95,000 previously ordered. This part of the earlier finding against Smith stands – the quantum of this fine is of a greater magnitude than previous cases have warranted and raises free speech issues.
Image: Kirralie Smith. Image credit: Binary.
Note: Kirralie Smith has previously objected to The Other Cheek’s coverage of her case, and we gave her a right of reply: