The Queensland Civil and Administrative Tribunal, in its decision yesterday in Valkyrie and Hill v Shelton [2023] QCAT 302 (18 August 2023), has dismissed claims of vilification based on sexual orientation or gender identity, made against conservative commentator Lyle Shelton. The careful decision of Member Gordon reveals a number of uncertainties still surround the interpretation of this and other similar laws around Australia, but finds in the end that comments critical of the participation of the complainants in a “drag queen library event for children”, did not amount to the incitement of hatred towards, serious contempt for, or severe ridicule of the complainants on the ground of their sexuality or gender identity in contravention of section 124A of the Anti-Discrimination Act 1991 (Qld). There are a number of points in the decision worth noting.

Factual background

Many readers of this blog will know of Lyle Shelton. The judgment summarises his background as follows:

[208] He had a background as a journalist and at the age of 30 started a six year period as a member of Toowoomba City Council, and then worked as advisor to Senators Ron Boswell and also Barnaby Joyce.  He was with the Australian Christian Lobby for 11 years first as its Chief of Staff and then its Managing Director.  At the time of the blog of 16 January 2020 he was aged 51 and was working as Operations Manager at Advance Australia, which was a conservative political lobbying group, and in 2021 he became Director of Campaigns and Communications for the Christian Democratic Party of New South Wales.  By the time of the hearing the respondent was National Director of the Federal political party Family First.

Judgment, para [208]

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The comments Mr Shelton made on his blog and elsewhere were critical of an event sponsored by Brisbane City Council, described as follows:

[191] On Sunday 12 January 2020 there was a children’s holiday entertainment event called ‘Drag Queen Story Time’ organised by the Brisbane City Council and Rainbow Families at the Brisbane City Council Library.

[192] The complainants were engaged by Rainbow Families to dress as drag queens with the stage names of ‘Queeny’ (Mr Valkyrie) and ‘Diamond’ (Mr Hill).  

[193] A group of between 10 and 20 children aged about 2 to 8 years old attended the event.  It lasted about 1½ hours.  The complainants sang ‘Twinkle, Twinkle Little Star’ to them and read a story book entitled ‘Love Makes a Family’ by Sophie Beer.  They supervised an art and craft activity where the children drew pictures of their family and some of them cut out paper dolls or made origami.

[194] The book ‘Love Makes a Family’ … depicts various ordinary family scenes and says on the back cover:

Whether you have two mums, two dads, one parent, or one of each, there is one thing that makes a family a family and that’s LOVE.

[195] The performance was advertised by a poster in the lobby of the library and on the Rainbow Families Facebook site.

Judgment, paras [191]-[195]

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The event was also the subject of a protest by some university students, and a tragic sequel to the event was that one of the students involved in the protest seems to have committed suicide. Mr Shelton made comments on the event, and was critical of those involved, in online material in 2020.

The judgment recounts the precise comments that were made in detail. One of the general remarks that was made was that “drag queens are dangerous role models for children” (see eg para [251]). Member Gordon summed up the essence of the assertions which it was said were conveyed as follows:

[272] The complaint is, that the respondent’s published material amounted to vilification by asserting directly or by implication that:

(a) the complainants were child sex offenders and/or the complainants when dressed as drag queens, and drag queens generally (and therefore also transgender persons and persons with homosexual sexual orientation), were a danger to children;

(b) drag queens were ‘advocates’ for gender fluidity and the adult entertainment industry in presenting drag queen story time, ‘inducting’ children ‘into the worlds of gender fluidity and sexual expressionism’;

(c) transgender persons are dangerous to children, and Mr Valkyrie however dressed, was dangerous to children because he was a transgender person;

(d) Mr Hill, however dressed, was dangerous to children because he uses the name ‘Diamond Good-Rim’ on Facebook, performs to adult audiences as a drag queen, and uses that name when doing so;

(e) LGBTIQA+ activists are hell bent on trashing the purity and innocence of the next generation.

Judgment, para [272]

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The Legal framework

Like a number of other discrimination laws around Australia, Queensland law makes “vilification” on the basis of various “protected attributes” unlawful. The relevant provision here is section 124A of the Anti-Discrimination Act 1991 (Qld), which provides in part:

Here the relevant attributes were “sexuality” (what elsewhere is called “sexual orientation”) and “gender identity”. Member Gordon noted that there were a number of ambiguities in this provision which needed to be resolved. He ruled that, in relation to those which were relevant or potentially relevant here:

• The category “drag queens” is not one that is directly protected under the ADA (nor the general categories of “members of the numerous and diverse LGBTIQ+ community” or “LGBTIQ+ human rights and community advocates”); but insofar as the complainants could be said belong to “sub-groups” of those categories who are homosexual or transgender persons, then they could take an action (see paras [43]-[47]).
• The essence of the provision is “incitement” of strong emotions in the audience for the remarks. But there is some difference of opinion as to how to define the relevant audience. After reviewing the various suggested solutions, Member Gordon said that the Tribunal should consider  “the ‘natural and ordinary effect’ of the public act having regard to the nature of the audience” (see [101]). This would mean that comments made to different audiences, if the audiences were clearly defined, might or might not be unlawful depending on the expected reaction of the audience.
• However, the fact that comments made on the internet may then be followed by more serious vilifying comments made by third parties, would not mean that the original commentator would be held liable for the comments of others (see [109]).
• It is “the reaction of the audience [that] needs to be on the ground of the attribute” (see [118]); so in s 124(1), the key issue is not the motive of the commentator, but the effect that the comment is likely to have on the audience.
• Evidence of the actual reactions of the audience who received the comments is relevant, but is not essential (eg see [141]).
• The standing and reputation of the commentator is relevant to the possible impact of what was said (see [148]).

There were some other comments made on the provision in s 124A(2)(c) for the prohibition not to apply to something said “reasonably and in good faith” for “purposes in the public interest”. Some of the comments here will be helpful in future cases where these “defences”are needed. For example, Gordon M said:

It is clear from this I think, that it is not necessary for the debate to be in the ‘public interest’ in the sense that it must be ‘for the good of the public’.  It is sufficient for the debate to be about something which is legitimately the subject matter of public discussion or debate.  

Judgment, para [183]

However, in this case these defences did not need to be applied.

Applying the law to the facts

The reason that the defences did not need to be considered in detail was that the Member ruled that there had been no breach of s 124A(1). However, there were findings made (presumably in case the matter were to be appealed) that Mr Shelton was subjectively acting in “good faith” (that is, he did not have other ulterior motives)- see [268]. It was not necessary to go into detail as to whether the publication of these views (which was accepted to be on matters of “public interest”- see [260]) was “reasonable”, as there had been no prima facie vilification- see [270].

The reasons for rejecting the claims of vilification are detailed, but some themes that emerge are these:

• The allegation that Mr Shelton had accused the complainants of being child abusers was rejected; he had not made these accusations in what he posted.
• Some of the third party comments posted in response to his remarks went that far, but it was not accepted that causation was established simply because others responded to what had been said and went much further. Gordon M noted:

[278] It seems to me that there is a causation issue here which prevents the tinderbox argument from prevailing.  Something more than merely providing an opportunity to react adversely is required before I can find that there was a contravention of section 124A.  The public act must be the cause of the adverse reactions.

[279] 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.

Judgment, paras [278]-[279]

Rejection of the claims of vilification often hinged on the fact that even if negative characteristics were being imputed to the complainants, this was not “because of” their protected attributes; rather, it was on the basis of the effect their performance would have on children. For example:

It seems to me also that any belief of those in the hypothetical audience that when performing drag queen story time the complainants were involved in some sort of child abuse or paedophilia, would not be on the ground of a relevant attribute, that is (for Mr Valkyrie) on the ground of his gender identity or sexuality and (for Mr Hill) on the ground of his sexuality.  I say that because any such belief would most likely arise because of the interaction in the drag queen story time event between the children and the complainants as drag queens.  In other words, the people would hold the same belief even if the complainants did not have any such attribute. (emphasis added)

Judgment, para [302].

With respect, this seems to clearly be the correct approach. A similar approach can be seen in the following comment:

It is an overstatement however, to say that therefore the respondent’s published material asserted that ‘transgender persons are dangerous to children’.  The assertion was not that children should have no contact with transgender persons.  What was being said was that transgender persons would be a dangerous role model for children if they were inducting the children ‘into the worlds of gender fluidity and sexual expressionism’.  In other words, transgender persons should not be permitted to educate children about gender fluidity.

Judgment, para [347]

Gordon M also added that any comments made about “drag queens” in general were not forbidden by the legislation, as the relevant protected attributes were not co-extensive with the class “drag queens”.

[S]ome drag queens are transgender persons and some are persons with homosexual sexual orientation, but a substantial proportion of drag queens are neither.

Judgment, para [313]

In the end, then, vilification on the basis of the legislative protected attributes was not established. Usually the comments were directed to a category not protected by the law, or (and in many cases, and also) the comments were directed at specific behaviour (the staging of drag queen activities for children) rather than being generalised comments based on homosexuality or transgender identity alone.

Conclusion

Issues around transgender identity, in particular as these issues relate to children, will no doubt continue to be the subject of intense debate in the community. No-one should be the victim of comments inciting hatred or serious contempt merely based on their sexual orientation, or gender identity, or other attributes such as religion. But we should all be free to debate and discuss these matters affecting the most vulnerable members of our community. This decison affirming free speech on these issues is to be welcomed.