Recently, it appears that key court decisions in Australia are being made for illogical reasons. Kirralie Smith, a keynote speaker at this year’s Forum on the Family and a spokesperson for the anti-trans group Binary Australia, was recently ordered by the NSW Local Court to pay a fine of $95,000 for identifying a male footballer playing on a women’s football team. The court also required her to issue a public apology after ruling she unlawfully vilified two transgender women.
This case marks the first time someone has been found to have unlawfully vilified a transgender individual under New South Wales law. The ruling resulted from a series of posts by Smith, initially concerning claims that a trans soccer player injured women. Deputy Chief Magistrate Sharon Freund ruled that Smith’s posts, which were tagged to media and activists, incited hatred and serious contempt towards trans women. The magistrate determined that Smith’s actions were not protected by the ‘good faith’ exemption in the NSW Anti-Discrimination Act because the posts were disproportionate and did not consider the impact on the individuals involved, whose pictures and identifying information were included.
Interestingly, 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. At the end of the magistrate’s 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 she made the finding of vilification.
The fine has triggered strong reactions from activists on both sides (and rightly so) regarding the scope of ‘hate speech’ laws and free speech protections. 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.’ This raises questions about where free speech ends and vilification begins, a key concern for the public and policymakers alike.
Kirralie Smith has faced significant legal setbacks in this ongoing court case. In August, she lost her appeal in the New South Wales Supreme Court challenging an Apprehended Personal Violence Order (APVO) issued to protect one of the athletes from further harassment. This week, her final attempt to appeal the APVO decision in the High Court was dismissed, and she was ordered to pay the woman’s legal costs. Ms Smith argues that these rulings are a crucial precedent for “journalists, politicians and political advocates.” She concluded by asserting her “gender critical” stance, declaring that while “the law might state men can be women… it defies the laws of nature,” and affirming her commitment to standing for “truth and reality.”
Ms Smith has announced she will appeal this latest court decision.
