Kirralie Smith, spokesperson for anti-trans group Binary Australia has has been ordered to pay $95,000 fine and issue a public apology after the NSW Local Court ruled she unlawfully vilified two transgender people who identify as women. She has said she will appeal.
The case marks the first time someone has been found to have unlawfully vilified a person for being transgender under New South Wales law.
It all began after a soccer/football match, when Smith posted that women had been injured by a trans player and was never able to substantiate it.
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 that resulted in the fine 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.
The NSW Anti-Discrimination Act makes it unlawful “for a person, by a public act, to incite hatred towards, serious contempt for or severe ridicule” of transgender persons. But the Act does not make it unlawful “a public act done reasonably and in good faith for academic, artistic, scientific research or religious discussion or instruction purposes.”
The her judgment issued earlier, the magistrate found that Smith’s posts were disproportionate, and did not take into consideration the effect on the person named in the posts, and therefore were not protected by the good faith clause. Smith’s posts included information on the players’ identities, their pictures, and where and when they were playing. Evidence in one of the parallel cases included Smith taking a group of men dressed as women to a game.
Is misgendering a person equivalent to vilification? This is not explicitly stated in the judgment, but Magistrate Freund appears to come close. At the end of the judgment, the act of referring to the soccer player as “a male or a man” and posting their name on a top scorers leaderboard is cited as the basis the magistrate made the finding of vilification.
The magistrate also found the NSW Anti-Discrimination Act did not infringe the implied freedom of political communication under the Commonwealth Constitution.
In a comment about Kirralie Smith’s earlier experience at the NCAT and some other recent cases, Law and Religion Australia’s Neil Foster concluded “taking a stand on ‘gender critical’ views (which many would simply describe as basic biology) can be defended in the legal system.” He may write on this fine.
Smith’s fine has drawn the expected reaction from activists on both sides. Lyle Shelton, National Director of Family First, who also chairs the Binary board, wrote: “Incitement of violence should be where ‘hate speech’ laws begin and end. No one should be able to sue their fellow Australian for hurt feelings.
“Public debate is where disagreements over public policy should be thrashed out, not in court, where certain identity groups are empowered to silence speech they hate.
“The findings against Kirralie are unAustralian, and every politician should be making it their utmost priority to repeal the laws which allow such a miscarriage of justice.”
The Star Observer reports a comment from Equality Australia Legal Director Heather Corkhill.
“The court has made it clear: online posts made in bad faith that incite hatred, serious contempt or severe ridicule, regardless of the harm it causes, cannot be disguised as ‘political communication’. Not only is that argument baseless — it’s against the law.”
A comment from The Other Cheek
As an evangelical, or even as a merely Christian site, the Other cheek is in favour of free speech, and even speech that will offend people. Both conservative and progressive Christian speech is capable of that. The boundary of vilification needs to be carefully drawn, but it is clear there is a boundary. One dictionary definition is “abusively, disparaging speech or writing.”
Freedom to disparage is necessary for discussion. We have a right to disagree.
But adding abuse to disparagement leads towards vilification, but the NSW law has a tougher description in its provision about transgender vilification; inciting hatred towards, serious contempt for, or severe ridicule of trans people. That’s not a bad bar.
Does misgendering a trans gender person on its own amount to vilification? In this case, Smith had a barrage of comments, including derogatory references such as “A bloke in a frock”.
One aspect of the magistrate’s judgment that causes concern is that media reports occasioned by Smith’s Lobbying were regarded as vilification, but this was not made out in any cited evidence. The Other Cheek, possibly in a glass house, is concerned about those stones.
Image Kirralie Smith. Image Credit: HRLA
Shelton makes a case for these these laws to be repealed. Is it just that ‘trans’ receive special mention in these laws? The article by Stephen Price in the Australian today on the power and reach of ACON suggests there is little liklihood of this.