Freedom of speech

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Kirralie Smith- transgender vilification and sport

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.

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Giggle v Tickle, the Federal Court Appeal- Two Steps Back

The Full Court of the Federal Court of Australia has handed down its long-awaited decision in Giggle for Girls Pty Ltd v Tickle [2026] FCAFC 64 (15 May 2026). I commented on the trial decision in this case in an earlier post. In the trial decision, as I noted, Bromwich J in the Federal Court of Australia found that the company Giggle had been guilty of indirect gender identity discrimination when its director, Sall Grover (who was also sued), had removed Roxy Tickle from her women-only social media app. Roxanne Tickle (“the applicant”), as Bromwich J noted at trial:

was of the male sex at the time of birth, but is now recognised by an official updated Queensland birth certificate, issued under the Births, Deaths and Marriages Registration Act 2003 (Qld) (Qld BDM Registration Act), as being of the female sex.  This followed from, and was predicated on, sexual reassignment surgery, being the term used in the Qld BDM Registration Act.. (at [3])

While the appeal decision overturned some rulings of the trial judge, the outcome was that Giggle and Sall Grover were still held to have unlawfully discriminated, and were hit with double the previous award of damages (raised from $10,000 to $20,000.)

Recently I posted about another case where I suggested that the decision of Federal Court judge represented “one step closer” to recognition of the reality of biological sex in our legal system. Sadly, it has to be said that this decision of the Full Court might now be seen as “two steps back”.

In short, I think this appeal decision is also legally wrong, and I look forward to it being overturned on appeal to the High Court of Australia if that goes ahead. But the decision also strongly points to the need to amend the Sex Discrimination Act 1984 (Cth) (“SDA”) to restore a clear definition of the word “sex”, and reaffirm the right of women to be able to enjoy single-sex spaces without being intruded upon by biological males.

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New federal hate speech laws- impact on religious freedom?

After the dreadful terrorist incident at Bondi on December 14 2025, where 15 folk from the Jewish community were murdered, the Federal government has introduced new “hate speech” laws at the national level. Whenever there is a proposal to target “hate speech” there is always a potential danger that unpopular religious views will be caught up in the ban. However, it seems that the recently enacted changes will have little impact on religious freedom in Australia, except where religion is offered as a reason to justify calls for violence against others. In this post I will try to spell out what the changes are, and why they seem to be a reasonable response to the danger of terrorist violence.

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Football and “transgender vilification”- the Kirralie Smith cases

I have written previously about litigation involving Kirralie Smith stemming from her comments about a biological male playing in a womens’ football team. In that post I noted the decision in the NSW Civil and Administrative Tribunal (“NCAT”) in Blanch v Smith [2024] NSWCATAD 20 (22 January 2024). Ms Smith is part of an advocacy organisation, Binary Australia Ltd, which advocates for sex-based rights, especially for women, and sometimes posts about transgender males who have been allowed to compete in women’s sport. Stephanie Blanch was mentioned on the website of Binary and elsewhere online in this context, and then claimed that this amounted to “transgender vilification” under sections 38S(1)(a) and 52 of the NSW Anti-Discrimination Act 1975 (“ADA”). As the judge in the liability proceedings noted below commented at para [3]:

the Plaintiff is a transgender woman. She was born a male and has lived solely as a woman since 2016.

Ms Smith’s case was then transferred for constitutional reasons to the Local Court, where she was subsequently found to have been guilty of vilification. Most recently, in a decision involving Blanch and also in a case mounted by Riley Dennis, Ms Smith was fined and found to be liable for costs. In my view all of these four recent decisions were wrong, and I hope will be overturned on appeal.

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Recent cases on transgender vilification

I am presenting some material on vilification laws, and this paper deals with some recent cases on “transgender vilification”: Blanch v Smith (Local Court of NSW; 26 Aug 2025) and Dennis v Smith (Local Court of NSW, 26 Aug 2025). The paper can be downloaded below. It supplements material presented in a previous paper linked here.

Recent decisions involving TG vilificationDownload
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Religious Liberty conference at Uni of Notre Dame, Sydney

 The University of Notre Dame Australia School of Law and Business will hold its 11th Annual Religious Liberty Lecture on Thursday 11th September 2025 – 5:30pm for 6pm, at St Benedict’s Hall, 104 Broadway, Chippendale, Sydney. A full day Annual Religious Liberty Conference will follow on Friday 12th September 2025 from 9am. 

More details and registration information can be seen in this flyer:

ND6263_Religious Liberty Lecture and Conference_July2025_FA (1)wit addressDownload

While the official RSVP date has passed, the organisers assure me they would still welcome registrations! I will be speaking on the vilification and hate speech issues, and there will be a number of other important papers presented on the day.

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Freedom for Faith conference

Freedom for Faith is holding its annual conference on religious freedom and the law on September 27th, and is offering a student ticket discount. There is a great line-up of speakers- do come along!

The conference will be held on Saturday September 27th, 10am-3:30pm, at Village Church Annandale (Sydney) and the Student price: is $45 .

Speakers include Prof Patrick Parkinson and Ass Prof Alex Deagon – both of whom will be launching books – as well as Monica Doumit, the head of public affairs for the Catholic Archdiocese of Sydney. 

There will also be a conversation between Julian Leeser MP, the Federal Liberal Member for Berowra and Shadow Attorney General, and Dr Hugh McDermott, the NSW Labor Member for Prospect and Parliamentary Secretary (Assistant Minister) to the NSW Attorney General. 

Ticket includes lunch and unlimited coffee from the in-house coffee cart.

More information and tickets at: https://fff.org.au/f25 .

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Vilification laws and religious free speech

I am presenting a paper on “Hate Speech – Vilification Laws and Threats to Freedom” this week, and a copy is available here to download for those interested. As well as comment on a number of other cases, there is some comment on the recent Wertheim v Haddad s 18C decision, and the litigation involving “Billboard Chris”.

HRLA Legal Academy 2025 Foster on VilificationDownload
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The meaning of “sex” – in the UK and Australia

A high profile decision from the UK Supreme Court this week, For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 (16 April 2025) (“FWS“), holds that the word “sex” as used in the UK anti-discrimination legislation the Equality Act 2010 (UK) (“the EA 2010”), means biological sex, and that the term does not change its meaning in relation to those who have obtained a gender recognition certificate (“GRC”) under the Gender Recognition Act 2004 (UK) (“the GRA 2004”). In the circumstances of this case, this meant that where a “quota” had been established for certain governance roles requiring 50% of non-executive members to be women, that quota could not be met by including those with an “acquired gender” of female due to their holding a GRC.

But the ramifications of the decision go far beyond the specific quota legislation. The question that the court had to address was whether references to “sex”, “women” and “men” in the EA 2010 included those who held GRC’s and had an “acquired” or “certificated” sex. After an extensive review of the general provisions of the discrimination law, the court unanimously concluded that a GRC did not have the effect of deeming someone to have changed their sex for the purposes of the EA 2010.

As they sum up near the end of the decision, at [265] item (xviii):

The meaning of the terms “sex”, “man” and “woman” in the EA 2010 is biological and not certificated sex. Any other interpretation would render the EA 2010 incoherent and impracticable to operate. 

As they point out, this does not remove other protections provided by the EA 2010 to transgender persons, whether or not they hold a GRC. But the ruling will have the effect that it will be possible to establish rules requiring that single-sex spaces such as changing rooms, bathrooms, and other areas designed for the use of one sex, can be reserved for those who have that biological sex and will not have to be made available to those who have the relevant sex through a GRC or claim to be of that sex on some other ground (see references to those issues in para [265] items (xiv) and (xv).)

While the decision itself does not refer to religious belief issues, the case will have important implications for religious groups whose conviction is that a person’s sex is that given at conception biologically, and cannot be later changed by other processes. (For a recent careful and scholarly analysis of the Christian perspective on these issues, see Robert S Smith, The Body God Gives (Lexham Academic, 2025), esp Part 3.) In the UK, those groups will be able to apply this view in the way that they provide services for men or women, or for girls or boys, in accordance with their faith commitments.

Of course the decision is not directly relevant to the law of Australia. But in this post I want to briefly compare the reasoning of the UK Supreme Court in its consideration of the EA 2010, with how a court in Australia might approach similar issues under Australian law, in particular in relation to the federal Sex Discrimination Act 1984 (Cth) (“SDA 1984”). Readers of this blog may recall that we have had a decision of a single judge commenting on some of these issues in the Tickle v Giggle litigation, which I previously suggested was wrongly decided. The reasoning of the Supreme Court of the UK here strongly supports my view that comments about the meaning of the category of “sex” made by the judge in that case were incorrect and should not be supported on appeal. (For an excellent overview of the FWS decision by a UK legal scholar cited by the court, see Michael Foran, “Sex has always meant biological sex“.)

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The NSW Conversion Practices law, religious freedom and Government “guidance”

The Conversion Practices Ban Act 2024 (NSW) (“the Act”) is now in force, having commenced operation on 4 April 2025. I have previously posted a paper expressing concerns about the operation of the Act in relation to religious freedom. In this post I want to re-iterate briefly some of those concerns, and comment on “guidance” on the operation of the Act provided by NSW government officials.

I commend the previous paper to readers for more details. But the following are some extracts which may help to set the scene for my comments on the NSW government guidance. Below I will be referring to the “Frequently Asked Questions” (“FAQ”) page produced by “Anti-Discrimination NSW” (ADNSW)- the version I am commenting on was dated 7 April 2025. (ADNSW is the “online identity” of the body formally known as the “Anti-Discrimination Board” established under the Anti-Discrimination Act 1977 (NSW); the President of the Board receives initial complaints under the Act- see s 14- and the Board has a number of other functions under the Act.)

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