An important appeal decision in November 2021, Rep v Clinch [2021] ACAT 106 (3 November 2021), provides significant clarification on what amounts to “transgender hate speech”, and what does not, under the law of Australian Capital Territory- and provides a helpful and persuasive set of reasons which may be influential in other jurisdictions. Is it unlawful to say that “a trans woman is a man”? Not according to the Appeal Tribunal in the Rep decision- see [117]. While none of the relevant parties seem to have referred to religious reasons for their comments, the question of what can be lawfully said in public contexts about issues raised by the “gender identity” debates has some importance for religious groups which take the view that religious texts teach that sex is determined at birth, not fluid, and not able to be changed.

Legal Context

The ACT Discrimination Act 1991 s 67A provides relevantly that:

Unlawful vilification

    67A(1)     It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private: …

        (b)     gender identity; 

    (2)     However, it is not unlawful to— 

        (a)     make a fair report about an act mentioned in subsection (1); or 

        (b)     communicate, distribute or disseminate any matter consisting of a publication that is subject to a defence of absolute privilege in a proceeding for defamation; or 

        (c)     do an act mentioned in subsection (1) reasonably and honestly, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and presentations of any matter.

This is an example of what is sometimes called a “hate speech” prohibition, though it is important to note that the specific types of speech made unlawful do not necessarily require “hate” on the part of the speaker, and incitement of things other than “hatred” are also prohibited.

Prohibitions on vilification are not as common in Australian law as prohibitions on “discrimination”, and the two concepts are not the same. Discrimination requires some form of detrimental treatment which usually goes further than speech alone.

The facts of this case

This case grew out of a series of interactions between the appellant, Bethanie Rep, a radio news-reader in Canberra, and the respondent, Bridget Clinch, a self-described “trans woman”, following events at an International Women’s Day event in 2018 (see this earlier media report.) An initial complaint about vilification resulted in a negotiated settlement under which the appellant posted an apology on her Facebook page. But this posted apology then saw a number of comments critical of the respondent made by members of the public who followed the page, some of which the appellant “liked” and a number of which were not deleted or removed.

The court proceedings

The respondent complained about vilification under s 67A (and also “harassment” under s 68, though as these complaints were not successful in the end I will leave them out of this discussion.) The initial Tribunal hearings in the ACT Civil and Administrative Tribunal (see the final first instance outcome in CLINCH v REP (No. 2) (Discrimination) [2020] ACAT 68 (8 September 2020), Senior Member B Meagher SC, Presiding) resulted in a finding that the appellant was responsible for 50 Facebook posts (either made by others in response to the initial apology, or made subsequently directly by her) which amounted to unlawful vilification. The appellant was ordered to pay $10,000 in damages and to remove all the posts and similar posts, and refrain from making the posts or similar posts.

These latest appeal proceedings (heard by a panel of senior members, Acting Presidential Member R Orr QC and Senior Member Prof P Spender sitting as the ACAT Appeal Tribunal) revisited the earlier decision and concluded that the Original Tribunal had made a number of legal errors in the way that it approached both vilification and harassment findings, and in the width of the initial injunctions that had been issued. It concluded that indeed some of the 50 posts amounted to relevant vilification- 9 out of the original 50- but the large majority did not. The appellant was still ordered to pay a reduced amount of compensation ($5000) and to be subject to a narrower prohibition on repetition of “those posts, or posts in substantially the same terms” as the offending comments.

But the importance of the Appeal Tribunal’s decision is that it carefully and exhaustively examines each of the allegedly vilifying posts, in a detailed Schedule to the decision, and makes specific rulings about which are, and which are not, unlawful. This is clearly the correct approach. The Original Tribunal decision had offered a sample of comments but did not set out all, and made sweeping comments to the effect that the other comments were as bad as the ones they ruled on. The Appeal Tribunal justifiably refused to adopt this approach- see [111]. While it may not be pleasant for people who have been offended or insulted to see those remarks repeated in a published tribunal or court decision, that is what must happen if open justice is to be done, and seen to be done.

I will not of course repeat all the various comments discussed in Schedule 1 here- the interested reader may do so at the link to the Appeal Tribunal decision above. But in the discussion below I will give some examples, as it seems important for those commenting on these issues to have some idea about what is, and is not, unlawful speech under laws that are similar to the ACT law.

General principles governing the area

The Appeal Tribunal makes a number of important comments about the general principles applicable to transgender vilification claims from para [52] and on. Briefly, they note the following:

• Vilification law sits in the context of a “broad human rights tradition” which recognises the need to take into account a range of important rights- see [53].
• Vilification law “draws on defamation law. The legal notion of vilification is related to that of defamation, and the ‘defences’ to vilification, in particular in section 67A(2) of the Discrimination Act, are related to defamation defences. Again, in our view the specific provisions of the Discrimination Act need to be read in light of the terms and concepts it borrows from defamation law”- see [54]. (As an aside, I have discussed the links between vilification laws and defamation law in a previous paper: see here at p 38).
• The question to be decided is an objective issue concerning “incitement”, and does not require a finding about the personal feelings of either the speaker or the subject of the comment- [57].
• The comments at para [58] are particularly helpful:

[58]… ‘Incite’ means to “rouse, to stimulate, to urge, to spur on, to stir up, to animate”. (Young v Cassells (1914) 33 NZLR 852 at 854, quoted in Sunol v Collier (No.2) [2012] NSWCA 44 at [26] (Bathurst CJ)). While this can cover a wide range [of] conduct, it is not enough simply to make insensitive, disrespectful, offensive, or insulting comments, or even just to express hatred, revulsion, contempt or ridicule, inappropriate as this is. The post must be one which could encourage or spur others to hatred, revulsion, serious contempt, or severe ridicule. Such vilification can include words which command, request, propose, advise or encourage hatred etc. But it can also be words which simply incorporate such strong and abusive language about the person or group that it is likely to encourage hatred etc. (emphasis added)

• The specific attitudes or behaviour which must be “incited” – ie “hatred toward, revulsion of, serious contempt for, or severe ridicule of” persons- take their ordinary meaning.
• The comment must take place in a public forum.
• Context needs to be considered, and sometimes there may be difficult issues in identifying the audience of a remark.
• The “ground” of the remarks must be “gender identity”.
• There are defences built into s 67A, and in this case an important one was that it was not unlawful “do an act mentioned in subsection (1) reasonably and honestly, for … other purposes in the public interest, including discussion or debate about and presentations of any matter”. Here the “public interest” in discussion of gender identity issues was an important factor. Another important comment:

[67] It was argued that the posts were for purposes in the public interest, that is discussion and debate on the nature and position of trans women. We accept that discussion and debate of this issue is in the public interest. But to come within the exception, the act must be done reasonably and honestly.

[68] This involves a subjective and objective test, at least in relation to reasonableness, that is, the person must believe they are acting reasonably, and they must be actually doing so, objectively assessed. Unreasonable presentation of an argument, objectively assessed, does not fall within the exception. (emphasis added)

Application of the principles to this case

There are a number of subordinate legal issues discussed in the decision, which I won’t touch on here. One was the question of whether the ACT Tribunal had jurisdiction to hear the matter given that the respondent was in Queensland at the time. But these matters were resolved in favour of the respondent, and the Appeal Tribunal held that jurisdiction was established. (As this involved the law of a territory and not a State law being applied by a tribunal, it seems to have been accepted that the prohibition against a State tribunal hearing a matter against a resident of another State laid down in Burns v Gaynor was not relevant here. My post on that case is available here.)

Applying the above principles about vilification, some of the things that had been which had been held by the Original Tribunal to be unlawful, did not amount to vilification. A few examples may help.

[99]…we do not agree that the other posts in the tranches are all the same as the examples chosen. To use item 1.16 as an example, it says: 

I apologise that Bridget has been given the impression by this system that his views about himself must be upheld by others at all times. It is evident that under capitalism, ‘human rights’ means white male rights. It is not Bridget who has been victimised here, but who has manipulated a system already constructed in his favour.

[100] As we discuss below, we think that stating that Ms Clinch is a man who has not been victimised but has manipulated the system is offensive and insulting, but it does not meet the test of inciting hatred etc. This post also raises the issue as to whether it falls within the exception for reasonable and honest discussion of transgender issues. In our view there is a real issue as to whether this is vilification and is “like the others”. On our analysis in Schedule 1, it is not vilification.

[101] To mention another, item 18 responds to a post which says:

Disappointed at @ConversationUK running a vapid piece, that’s contrary to lived experiences of transwomen. Oppression is related to gender presentation, not sex, ask any professional who’s trans and they’ll tell you they either went up or down the privilege scale post transition. 

[102] Ms Rep replied: 

‘Oppression is related to gender presentation, not sex.’ Thousands of years of oppression and all females had to do was stop wearing dresses apparently, who knew.

[103] The first sentence by Ms Rep is an attempted restatement of the basic position of the post being responded to. In our view it is a reasonable summary. We do not think that it can be vilification. The second sentence is Ms Rep putting forward her contrary position, which we would summarise as being that such oppression is not just related to gender presentation. She states this in in a somewhat flippant or colloquial way, but does address the issue and it is not offensive or insulting. We do not think that this post is inciting hatred etc. to trans women or Ms Clinch. Even if it was, we think that it falls within the exception in section 67A(2)(c) as a statement reasonably and honestly made in discussion or debate in the public interest of transgender issues. We find it is not vilification.

In coming to some of the posts which were found to amount to vilification, the Appeal Tribunal made some important preliminary points. One was that merely to insult someone, as rude and offensive as this may be, does not amount to vilification:

[114] In our view, in order to amount to vilification it is necessary that there be more than language which is insensitive, disrespectful, offensive, insulting, abusive or even an expression of hatred, revulsion, contempt or ridicule.

(Perhaps at this point it ought to be noted that this will depend to some extent on the wording of the relevant prohibition. The ACT form of words represents the majority formulation in Australia. Sadly, there is a much more repressive provision in s 17 of the Tasmanian Anti-Discrimination Act 1998, which does indeed make it unlawful to “offend” or “insult” someone on the basis of “gender identity”. But this provision is arguably unconstitutionally broad, and may be over-ridden if the Commonwealth Religious Discrimination Bill is enacted- see my recent submission on that Bill.)

Further, the Appeal Tribunal commented that merely to comment on the sex of a trans person is not itself vilification:

[117] In particular, many of the posts refer to Ms Clinch as man, or trans women as men. We can understand that such comments are insensitive, disrespectful, offensive and insulting to Ms Clinch and trans women. They are certainly inconsistent with the general principles of the Discrimination Act. But without additional aspects, we do not think that such comments are necessarily vilification. 

However, of course, context may turn an innocuous remark into something else. So the Appeal Tribunal summed up its discussion on this point by saying:

[121] Ms Rep seemed to argue that calling a trans woman a man could never be vilification. Ms Clinch seemed to argue it was always vilification. In our view neither position is correct. Calling a trans woman a man will not necessarily be vilification, but it may be.

There are a number of other examples of statements that might be thought offensive or insulting but which did not amount to vilification- in Schedule 1 see paras [239], [244], [249], [253], [255], [257], [259, [263], [265] and [267] (and elsewhere) . Overall the Appeal Tribunal summed up its views in this way:

[163]…In particular where the words indicate that because of the protected attribute a person is inherently inferior, a threat or a criminal, the issue of vilification will arise. 

[164] Words directed at the physical attributes of trans women can be vilification, if they meet this test. Generally we do not think that referring to a trans woman as a man will necessarily do so.

One example of actual vilification is as follows:

[247] Item 1.6 says: 

How ridiculous that u have to lie and pander to these anti women delusional haters. The good thing is that everyone knows that Bridget is a man no matter what he dictates people call him. Even the anti women men and handmaidens know he’s a man. We can laugh at how pathetic he is and know he’s angry that no-one actually believes his delusions – the only reason he’s being supported is because he’s helping support men’s misogynistic views and desperate attempts to control women.

[248] In our view this statement moves beyond being just offensive and insulting, to strong and abusive language. It refers to Ms Clinch as anti women, delusional, a hater, a man, who dictates to others, is laughable, pathetic, angry, delusional, misogynistic and controlling of women. It does so in the context of the apology, which it undercuts. It directly attacks Ms Clinch. It does so on the basis that she is a man not a woman and is therefore linked to gender identity. This is incitement of, revulsion of, or severe ridicule of, a person and the group of trans women. It is not reasonable, that is a rational or proportionate discussion of transgender issues, especially in the context of the apology. We find this is therefore vilification.

Other examples of what has been found to be vilification can be seen in Schedule 1 at [233], [236], [241], and [251] (and elsewhere).

The overall conclusion of the proceedings will not satisfy everyone. Some things that are viewed as insulting or offensive are not prohibited. Some things that others will see as true and a legitimate part of robust debate on the area are seen as vilification. But overall the decision moves the discussion in a helpful direction by noting that the actual words of the prohibition need careful attention, and that where issues are discussed in a rational and moderate way this will not amount to “inciting hatred” etc.

Other recent cases relating to “transgender” issues

While there is no time or space to examined them in detail here, I thought it was worthwhile noting two other significant court decisions that relate to the gender debates.

One is the decision of the UK Supreme Court in Elan-Cane, R (on the application of) v Secretary of State for the Home Department [2021] UKSC 56 (15 December 2021).  In this decision the Supreme Court was asked to approve the addition of a “non-binary” (X) marker to UK passports, on the basis that this was required by the European Convention on Human Right. They declined to do so. While accepting that “Transgender people, in the sense of people who have acquired a different gender from the one recorded at birth, can obtain passports showing their acquired gender” (at [6], referring to the formal “gender recognition” processes required under UK law), the court ruled that there was no obligation to record a “non-binary” identity on passports when the UK Parliament had not allowed for such. They held at [39] that “the purpose of providing that information is not to inform HMPO as to the applicants’ feelings about their sexual identity, and the applicants are not being forced to lie about those feelings”; that the record was meant to be a record of biology, and there were rational reasons for requiring such information on passports.

The second decision of note was that of the England and Wales Court of Appeal in Miller, R (On the Application Of) v The College of Policing [2021] EWCA Civ 1926 (20 December 2021). In this case Mr Harry Miller had been visited at his place of work by a police officer looking into what was called a “non crime hate incident”, which resulted from debates on the internet about gender identity issues. Mr Miller had previously been successful in seeking judicial review of the actions of the police in his case; but on this appeal he was further successful in obtaining an order against the College of Policing who had produced the relevant guidance as to when police should act on these incidents. The case is lengthy but well worth reading, but in brief the court ruled that the elements of the guidelines which allowed citizens to be accused simply on the feeling of offence by someone else, and for this sort of “incident” to be recorded and available in some circumstances to possible employers, amounted to a disproportionate burden on free speech rights under the ECHR, and the court ordered the guidelines to be amended accordingly.

Both these decisions, as well as the comments made in the Rep v Clinch appeal, are encouraging signs that courts and tribunals are pushing back against the view that “gender” is simply a matter of self-identity and that it is unlawful to query or question this ideology. These are encouraging developments.