I have previously written about the case of Kirralie Smith. Ms Smith is part of an advocacy organisation, Binary Australia Ltd, which advocates for sex-based rights, especially for women, and sometimes posts about biological males who have been allowed to compete in women’s sport. Stephanie Blanch (and Riley Dennis) were mentioned on the website of Binary and elsewhere online in this context, and then claimed that this amounted to “transgender vilification” under section 38S(1)(a) of the NSW Anti-Discrimination Act 1975 (“ADA”). The plaintiffs in the original litigation were each described by Deputy Chief Magistrate Freund as a “transgender woman”, and were both born biologically male.

In the earlier proceedings (judgments linked in my previous post) Smith was found to have committed vilification, ordered to pay a total of $95,000 in damages to the two plaintiffs, and found liable for costs. An appeal was lodged, and the NSW Supreme Court (Rigg J) has now handed down a judgment granting leave to appeal in some respects, but mostly dismissing the appeal grounds: see Smith v Blanch; Smith v Dennis [2026] NSWSC 879 (24 July 2026) (Blanch and Dennis Supreme Court Appeal, “BDSCA”). Smith remains liable to pay $95,000, is forbidden “from publishing on social media or otherwise anything relating to the defendant[s] to the same or similar effect as held to be unlawful vilification in [the previous] Local Court proceedings” – see BDSCA [261], [262]. She also has to pin a notice about the proceedings “on all social media pages and websites over which [she has] control, including Facebook, Instagram and X (formerly known as Twitter) and the website of Binary Australia”, for 3 months. (See Annexure A to BDSCA for the content.)  

In this post I will aim to explain the basis for the court’s decision. As will be seen, I think there may be grounds for a further appeal.

It has to be said that the judgment in BDSCA is quite complicated. One reason for this is that, on many of the issues involved, leave to appeal was required (a preliminary step, the grounds for allowing an appeal to be made out before the substantive issues could be considered). A crucial feature of the case is that there is often no right to appeal questions of “fact” as opposed to questions of law. These matters were relevant under sections 39 and 40 of the Local Court Act 2007 (NSW), which govern appeals from the Local Court to the Supreme Court. (As noted in my previous post, this matter had to be heard in the Local Court of NSW, rather than the NSW Civil and Administrative Tribunal (NCAT), where discrimination issues are often resolved, because questions were raised about whether the vilification provisions were consistent with the Federal Constitution.)

These sections governing the appeal relevantly provide:

39 Appeals as of right
(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law…

40 Appeals requiring leave 
(1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court.
(2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court—…
(c) an order as to costs.

Some of the issues at stake in this appeal did not require leave, as they were acknowledged to be purely legal questions (for example, the constitutional issues). But other issues which involved questions of “mixed law and fact” required leave, and even when leave was granted, were subject to the general rule that facts found by the lower court would not usually be over-turned.

In this post, for reasons of space and clarity, I do not review the arguments about leave to appeal. Instead, I will summarise the overall result on the main issues, and what the implications may be for future speech about these issues.

The main questions to be considered, then, were these:

1. Was there vilification in each case on the on “the ground that the person is a transgender person” (s 38S(1)(a), Anti-Discrimination Act 1977 (NSW) (“ADA”))?
2. Did any of the matters in s 38S(2) apply?
3. Is s 38S invalid because it infringes the implied freedom of political communication under the Constitution?
4. What remedies should have been ordered if vilification was established?

1. Was there vilification on transgender grounds?

The relevant provision, s 38S(1)(a), says that it is unlawful to publicly “incite hatred towards, serious contempt for, or severe ridicule of- (a) a person on the ground that the person is a transgender person…” The actions that were said to breach this provision were summed up by Rigg J as follows in BDSCA:

[4] On 20 January 2023 the first plaintiff wrote an article concerning Ms Blanch and including a photograph of her (“the January article”) which was posted by the second plaintiff on its website with other communications by the second plaintiff. Between 20 January and 17 February 2023 the first plaintiff posted to Facebook and Twitter on numerous occasions regarding Ms Blanch, not naming her but including photographs of her and naming her football club, and on a number of these occasions including a link to the January article. Between 29 and 31 March 2023 the first plaintiff posted (to Facebook and Twitter) on a number of occasions regarding Ms Dennis, including naming her by nominating where her name fell on a reproduced leaderboard of sporting results. The posts regarding Ms Blanch and Ms Dennis are referred to as the social media posts. 

Deputy Chief Magistrate Freund had ruled that these actions incited the relevant emotions against the plaintiffs. Rigg J, in general terms, held that she was not free to decide for herself about the question of incitement, as it involved factual and not legal issues.

She considered some matters that had been said to be questions of law on this issue. One was that the wrong legal test for determining incitement had been used. But she said that the major Court of Appeal decision in a related area, Sunol v Collier (No 2) [2012] NSWCA 44; 289 ALR 128 (“Sunol”), had laid down the correct approach, and that Freund DCM had applied this approach- see BDSCA [41]-[45].

Another alleged legal issue was the question as to whether an actual intention to incite was required for s 38S to be breached. Her Honour ruled that this issue had been decided in the negative in Sunol and no good reason was offered by the plaintiffs here for departing from this- see BDSCA [46]-[49]. (I note that in this appeal, contrary to usual practice, the parties appealing are the “plaintiffs” due to the nature of the appeal rights involved, rather than being called “appellants”.)

In broad terms, Rigg J ends up rejecting the arguments made as to questions of law by either saying that they are not persuasive readings of prior cases, or else involve issues of fact as to which she cannot make findings. See for example the conclusion to para [65]: “These are simply questions of fact.”

There is, with respect, one point where it is arguable that her Honour has herself made an error of law. Her Honour on my reading does not correctly distinguish a statement made “on the grounds of” someone being a transgender person, from a statement made on other grounds. I made the following point in my previous post in relation to the trial decisions, and I think it also applies to the decision in BDSCA:

The basis for the unlawful actions must be the identity of the “target” person as a transgender person. But in my view what is noted above was not done on that ground. Ms Smith’s comments and actions were based on her concerns that a biological male was playing in a women’s football competition. Noting that Blanch was a “bloke in a frock” was a shorthand way of stating that Blanch was a male purporting to act as a female, in the context of a physical contact sport which was designed to only be run for females.

In other words, it seems to me that incitement against someone must be on the grounds that they are a “transgender person”- to adopt the definition provided in s 38A, that they are someone “who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex”. It would be unlawful if the person was simply named and relevant emotions incited because of this fact, that they live as a member of the opposite sex. But when comments are made about their actions, about their being involved in a sporting team clearly intended for those who were born female, then those comments are not made “on the grounds of ” their transgender identity as such.

Consider the following hypothetical example. A transgender person born male, T, applies to join a female soccer team. The team declines on the basis that it is reserved for those born female. If T were to complain of unlawful transgender discrimination under the ADA (assuming that the definition of “services” in s 4(1) extends under para (b), “recreation”, to the running of a sport), their claim would fail on the basis of s 38P of the ADA:

38P (1) Nothing in this Part renders unlawful the exclusion of a transgender person from participation in any sporting activity for members of the sex with which the transgender person identifies.

The legislation does not allow a discrimination claim to be made on the grounds of transgender identity in the provision of the “service” of running a sporting activity for women (the “sex” with which the person identifies). If a commentator, C, were to criticise T for the act of trying to join the team, they would simply be noting that T had no legal right to do so. The legislative scheme would be incoherent if the simple act of noting that T had no legal right to join a female soccer team could be regarded as vilification under s 38S.

Insofar as Rigg J addressed this issue, her Honour seems to have characterised it as a question of fact which she should not review- see eg [65]. With respect, it seems to me that the approach of the trial judge was flawed, in apparently assuming that the comments were “on the ground of” transgender identity. There is a very brief discussion of the issue in the Blanch Liability decision at [89]-[90] but it does not address the question noted here. In short, I do not think s 38S was breached because the comments were not made “on the ground of” transgender identity as such.

2. Did s 38S(2) apply?

Suppose (contrary to what I have said so far) that what was done could be said to done on the grounds of transgender identity. Section 38S(2) provides for various circumstances in which what was said would not amount to vilification. It provides, so far as is relevant here:

(2) Nothing in this section renders unlawful … (c) a public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

What Allsop P said in Sunol about s 49ZT of the ADA (dealing with homosexual vilification) seems equally applicable to s 38S:

[60]… Subsections (1) and (2) should be read together as a coherent provision that makes certain public acts unlawful. Subsection (2) is not a defence; it is a provision which assists in the defining of what is unlawful. It attempts to ensure that certain conduct is not rendered unlawful by the operation of subsection (1).

It was conceded by all concerned that “discussion or debate” about the question of whether biological males should be playing in women’s sport is in the “public interest”- see BDSCA [7]. Hence the main issues arising under s 38S(2) were whether what Smith had done, had been done “reasonably” and “in good faith”. Freund DCM had ruled that the acts did not satisfy this requirement- see eg the Dennis Liability decision, [61]-[92].

The test that was adopted on these matters was held by Rigg J to have been the comments taken from Sunol on the point, per Bathurst CJ at [41]:

(e) For the public act to be reasonable within the meaning of s 49ZT(2)(c) it must bear a rational relationship to the protected activity and not be disproportionate to what is necessary to carry it out.
(f) For the act in question to be done in good faith, it must be engaged in bona fide and for the protected purpose.

It was accepted here that comments about a biological male in a women’s sporting team did bear a “rational relationship” to the relevant public interest issue. However, what Smith had done was found by Freund DCM not to be “proportionate” to achieving the goal, and it was held not to have been done “in good faith” because Smith did not take into account the emotional impact on the complainants- see BDSCA at [120].

Again, Rigg J does not undertake a detailed consideration of these issues, apparently regarding them as questions of fact which she was not at liberty to disturb. It seems to me that these matters are classic examples of “mixed fact and law”, given the “fuzzy” nature of the concepts of “proportionality” and “good faith”. I suggest that it seems far too onerous a requirement to say that “good faith” must always involve consideration of the emotional impact of one’s comments on others- see eg BDSCA [128]. This finding seems based on evidence of Smith “of not turning her mind to the issue of whether serious hurt would be likely caused”- see [130].

On the question of proportionality, this again is a very unclear criterion. It seems that the act of naming or identifying the individuals concerned played a role in the trial judge finding that what was said was “disproportionate”- see Blanch Liability at [120]. Rigg J declined to revisit the issue. But in any discussion of this issue, it has not been uncommon to hear folk say that “it does not happen”. To prove that it does in fact happen, it becomes necessary to name names.

3. Is s 38S in breach of the Constitution?

The question of the validity of s 38S, as to whether it breaches the Constitution by unduly impairing the implied right of free speech on political matters, seems to have been resolved in the negative by the Sunol decision for the moment. Rigg J discusses the issues at BDSCA at [137] ff but starts by saying that she is bound to follow that earlier decision.

There is more to be said, as can be seen by a couple of important articles noted here:

• N Aroney, “The Constitutional (In)Validity of Religious Vilification Laws: Implications for their Interpretation” (2006) 34 Federal Law Review 287
• Nicholas Aroney and Paul Taylor, “Building Tolerance into Hate Speech Laws: Australian State and Territory Anti-vilification Legislation Reviewed Against International Law Standards” (2023) 42 University of Queensland Law Journal, available at SSRN. 

The ultimate resolution of this question will have to await a decision on the matter from the High Court of Australia.

4. What remedies should have been ordered?

Even (again, if I am wrong about liability) assuming there has been a breach of the legislation, an award of $95,000 in damages seems very high. Indeed, there seems something odd about the calculation of damages which is not fully explained by the BDSCA decision.

The original damages decisions can be viewed here (they do not seem to be available anywhere else): Blanch Damages, Dennis Damages. In each of these decisions an amount of $40,000 is awarded by way of compensation- see Blanch [38], Dennis [37] – but Freund DCM goes on to rule that she will not award “aggravated damages” – see Blanch [42], Dennis [41]. Yet in the Blanch case the final award for damages is $55,000 – see Blanch “Decision and Orders” para 1. This feels like an amount for aggravated damages has been added to the Blanch order, but it is nowhere justified.

In the BDSCA decision, at [15], Rigg J notes that “on 10 April 2026 Deputy Chief Judge Freund corrected a slip in relation to the amount of damages referred to in a paragraph of the judgment which did not accord with the order made”. Does this mean that Freund DCM completely re-wrote para [42] of her decision to find that aggravated damages should be awarded? This goes unexplained, and if so it would seem to go far beyond the scope of something that could be corrected under a “slip” rule. That rule, in rule 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), allows for correction of errors after a judgment has been handed down, but as the Supreme Court said in Abdallah v Paco Nominees Pty Ltd [2025] NSWSC 1582:

[25] It is the objective intention of the Court that is determinative of an application under the slip rule. That objective intention is to be discerned from the words of the judgment

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Here there is no clear evidence from either judgment that the larger amount of $55,000 was intended at the time.

Even apart from this issue, two large damages orders of $40,000 each seems a very significant penalty for comments online on an issue of significant public importance. Indeed, as can be seen from s 38P of the ADA quoted above, the policy of the legislation is that transgender persons do not have a right to play sport in teams designed for those of the opposite sex to the sex they were born in. While it could be said that comments which were made could have been more polite, the important principle of free speech cannot be limited to carefully crafted politeness.

Indeed, in the major precedent of Sunol, Allsop P noted at [62] that breach of the equivalent provision in that litigation (s 49ZT, forbidding homosexual vilification), such breach

is not necessarily to be assumed or concluded by rude, indecorous, base or insulting language that reflects some dislike of, or opposition to, homosexuality.

In the same case, Basten JA at [79] stressed that

Mere insults, invective or abuse will not engage the prohibition. 

The legislation seems far too broadly worded. In any event, in my view what Smith did here did not amount to incitement “on the ground of” transgender identity, and so she should not have been found guilty of breaching s 38S(1).

5. Implications

Does this decision mean that no comment can ever be made suggesting that biological men should not be allowed to play in women’s sporting teams? While nothing I say here should be read as specific legal advice, I do not think that is the effect of the ruling, even as it stands. It seems fairly clear that comments on this issue are in the public interest. Production of general evidence about the reasons for separate sex sporting events are perfectly acceptable. It has to be conceded that the line might be crossed if individuals are named and attacked; certainly any comments should be respectful and polite. But there is no avoiding the fact that many folk will decide not to engage with the issues while this decision stands. For that reason, I hope that it may be overturned.

It is worth noting some points about the formal legal effect of this decision. Decisions of the Local Court are not traditionally regarded as binding on later courts, even at the same level and certainly not on courts above in the judicial hierarchy. Findings of the Supreme Court here that are made on the basis of adopting the rulings of the Local Court (due to the doctrine that matters of facts cannot be reviewed on appeal), are also not binding on future courts. The only authoritative rulings of Rigg J that bind later courts and tribunals, then, are those that are explicitly said to be issues of law. In this case it seems that would mainly be the constitutional issue, where her Honour in any event holds she is bound to follow a previous decision of the NSW Court of Appeal, Sunol.

It may finally be noted that a decision of a Justice of the Supreme Court may be appealed to the NSW Court of Appeal if the conditions in s 101 of the Supreme Court Act 1970 (NSW) are satisfied (including leave being granted if the financial stakes are less than $100,000). There is also precedent for a case which started in the Local Court to be granted leave to appeal all the way up to the High Court of Australia- see for example Arsalan v Rixon; Nguyen v Cassim [2021] HCA 40. So there may still be some way to travel before this matter is finally settled