Vilification

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“Gender critical” victories in tribunal cases

Over the last month there have been three important tribunal decisions (two in the UK, one in Australia) in favour of women who had been disciplined or dismissed or sued for expressing “gender critical” views. This phrase, broadly, refers to those who believe that sex is a biological reality and that someone’s gender aligns with their sex. Allegations of “transgender vilification” or claims that someone’s views on this matter can be a ground for workplace penalties have been common over the last few years. But the three cases I want to mention here (involving social worker Rachel Meade, academic Dr Jo Phoenix, and commentator Kirralie Smith) suggest that the tide may be turning in favour of those who hold the view that biology matters.

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New NSW “Religious Vilification” law

An amendment to the NSW Anti-Discrimination Act 1977, making certain types of speech connected with religion unlawful, commenced operation on 11 November 2023. The amendment, made by the Anti-Discrimination Amendment (Religious Vilification) Act 2023 (No 15 of 2023) (“the ADA”), is a form of “religious vilification” law which has not previously been in force in NSW. It is not as bad as some forms of such laws in terms of its effect on religious freedom, but it is worth being aware of its potential operation. It will be important, for example, for those preaching and teaching the Bible (or other religious texts) to understand what the law does, and perhaps more importantly, does not, prohibit.

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Vilification claims based on critique of drag queens event dismissed

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.

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