Lyle Shelton wins drag queen case

After three years and $700,000 of lawyers’ time, a vilification case brought by two drag queens saw a win for Lyle Shelton, a Christian activist and leader of the Family First political party. The Queensland Civil and Administrative Tribunal (QCAT) member Jeremy Gordon dismissed a complaint by Johnny Valkyrie and Dwayne Hill: a Shelton blog post, and posts on social media “did not and do not amount to vilification.” 

The Other Cheek asked Lyle Shelton if this was a win for free speech. “It is and it isn’t,” he responded “The decision may deter future attempts by activists to silence debate. But while Australia’s regime of flawed anti-discrimination laws remain in place no one is safe from a multi-year and expensive and stressful legal process. Parliamentarians with the will and courage to restore free speech are desperately needed.”

Shelton’s disquiet is based on how much the trial cost him and his supporters “On top of the $208,000 raised by almost 1300 supporters, there was a significant pro-bono component on top of this from HRLA. Tony Morris KC represented me at the trial pro bono. I can only estimate that the full cost of the case would have been in the order of $300,000. QCAT is a no costs jurisdiction so the complaintants bear no responsibility for the action they have taken against me. Their lawyers, the LGBTI Legal Service have received at least $400k from the Qld taxpayer.”

On his blog Shelton comments: “Most Australians will be shocked to know that the price of freedom of speech is north of $200,000, will cost three years of your life and force you to be subject to hours of cross-examination by a Senior Counsel in a public trial. This is not the Australia I grew up in.”

In January 2020 Valkyrie complained to the Queensland Human Rights Commission (QHRC) that a blog post by Shelton “described me as ‘dangerous’ for children as I am transgender, homosexual and do drag.” Hill made a similar complaint in July 2020. Lyle Shelton had described a drag queen story time event at Brisbane Library presented by the complainants.

Shelton’s post “Why ‘“’Queeny’ and ‘“’Diamond Good-Rim’ are dangerous role models for children,” had been posted just days before the Valkyrie complaint. It detailed some of the background to the performers, including an allegation that Hill was involved in the porn industry – that was rejected by the QCAT member.

The controversy about the draq queen library event was heightened by a tragedy. Wilson Gavin, the 21-year-old-student who led members of the University of Queenslanf Liberal National Club to protest at the library died by suicide the following morning. As gay site Qnews puts it after “considerable controversy over their action on social media that night.”

Conservative leader David Pellowe of Church and State confirmed to me that Gavin was both a devout conservative Catholic and a gay man who felt the tension of those positions. The QCAT member notes “The blog was written in the wake of the death of Mr Gavin.”

The QCAT member found that Shelton “had genuinely and honestly believed in the accuracy of his published material and that it was right to publish it, and that he did act in good faith in so doing.”

The QCAT finding notes that it was agreed between the parties that there was a legitimate public interest in discussing issues of gender identity, sexuality, and Drag Queen Story Time. Gordon notes that if he had found that Shelton’s material had amounted to vilification “I probably would have needed to decide with some precision what discussion or debate in the public interest was covered by the [public interest] exception” in the Anti Discrimination law.

But Shelton’s words did not amount to vilification the QCAT member found – which would have ammounted to a “public act, incit[ing] hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.”

Valkyrie and Hill relied on a “tindercbox” argument, that Shelton had acted to inflame an audience. The most inflamatory evidence they produced was not from Shelton, the QCAT member noted, but from third parties. The QCAT member noted a problem with the tinderbox argument. “Something more than merely providing an opportunity to react adversely is required.”

“To say otherwise would mean that for example, an uncritical public report of a Mardi Gras parade would amount to vilification because some people would respond with intense hostility. It should not be said that the report would have caused that hostility. Instead, it would have been caused by something else.”

An allegation was raised that Shelton had implied that some sort of child abuse or paedophilia had occurred. The QCAT member rejected this, commenting “that children needed protection from ‘radical sexual expressionism and gender confusion’ … is the main point being made in the blog.”

A key part of the QCAT member’s reasoningwas that the objection to drag queens would hold whether the performers were transgender, gay or straight, which means the performers own status as gay or transgender were not the main issue. This has caused negative comment in the gay press, with QNews wondering whether many straight men wear drag.

The Other Cheek asked Shelton “If you met your opponents what would you say to them?” Shelton responded “I have met with them via phone (because of Covid) during the conciliation process. I told them I respected and valued them as people who like me are created in the image and likeness of God. I simply did not agree with their views on what is appropriate for children. As well as this, I wrote to my opponents and offered to have coffee with them. This was received with hostility and further legal action against me which was dismissed on the first day of my trial.”

A distinction was drawn between what Shelton wrote and third party comments which the QCAT member obviously believed were closer to vilification, or crossed that line. Many of these comments would have come from Christians, considering Shelton’s support base. This might be considered the lingering problem with this case.

Implications

• Shelton lists a number of other cases of outspoken Christians before tribunals, making the point that a chilling effect due to legal costs is operating.

• The QCAT member’s description of third-party comments on Shelton’s blog and social media indicates that some Christians do engage in vilification.

• This case occurs at the same time as the NSW government considers legislation about “conversion therapy,” possibly not quite as restrictive of prayer and counselling by pastors as Victoria.

• In a post-Christendom environment, Christians need to be mindful of Peter’s injunction for dignity and respect towards those outside the kingdom of heaven. We need to speak in ways that promote the gospel full of grace and truth in equal measure.

Update: The Other Cheek also spoke to Shelton’s lawyer, John Steenhof of the Human Rights Law Alliance (HLRA). asked if people had anything to fear from this decision, he responded, “No. This is a very good result. It brings clarity about the proper bounds for public commentary. It takes a sensible approach to assessing internet secondary comments on primary posts. It’s a dry black-letter judgment that tries to establish a balance between protecting reputation and ensuring laws aren’t used to silence unpopular opinion.”