DLH v Nationwide News Pty Ltd

Statutory framework

1. Section 38S makes transgender vilification unlawful: TRANSGENDER VILIFICATION UNLAWFUL (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of: (a) a person on the ground that the person is a transgender person, or (b) a group of persons on the ground that the members of the group are transgender persons. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or … (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.
2. Section 38A of the Act defines a transgender person to mean a person, whether or not the person is a recognised transgender person: (a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or (b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or (c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex, and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.
3. A "public act" is defined to include "any form of communication to the public, including … writing, printing …": s 38R.
4. The operation of the provisions of the Act which make vilification unlawful on the grounds of race, transgender and homosexuality, has been considered by the NSW Court of Appeal, most recently in Sunol v Collier and anor (No 2) [2012] NSWCA 44 (Sunol), Jones v Trad [2013] NSWCA 389 (Jones) and Margan v Manias [2015] NSWCA 388 (Margan). The following statement of principles may be distilled from those authorities: 1. An objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group, on the ground of the protected characteristic of the person or group (race, transgender, homosexuality): Jones at [53]. 2. The word "incite" in the unlawful vilification provisions of the Act means "to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement": Sunol at [41]; Margan at [11]. 3. For a contravention it is not necessary to establish that anyone was incited: Sunol at [41], or that there was an intention to incite: Sunol at [41]; Margan at [12]. 4. It is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of the person or group of persons with the protected characteristic. It must be capable of inciting those reactions in an ordinary member of the class to whom the act is directed/the audience or likely audience: Sunol at [41]; Margan at [76]. 5. The assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurred: Sunol at [61]. 6. In making that assessment, the particular class of persons to whom the act is directed, the audience or likely audience must be identified and considered: Sunol at [34]; [61]; Jones at [62], [63]. 7. The assessment of the capacity of the public act to incite must be made by reference to the "ordinary" member of the relevant audience: Sunol at [34]; Margan at [76]; (cf. Sunol at [61]; Jones at [61], [62]).
5. The words "contempt" and "ridicule" are to be given their ordinary English meanings. Dictionary definitions of these words include: contempt: "the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account" (Oxford); "the feeling with which one regards anything considered mean, vile, or worthless" (Macquarie). ridicule: "subject to ridicule or mockery; make fun of, deride, laugh at" (Oxford); "words or actions intended to excite contemptuous laughter at a person or thing; derision" (Macquarie). See Burns v Dye [2002] NSWADT 32 at [23]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]; Burns v Sunol [2012] NSWADT 246 at [17].
6. The words "contempt" and "ridicule" are qualified by the adjectives "serious" and "severe" respectively. Like their accompanying nouns, they are also ordinary English words: serious: "important, grave" (Oxford); "weighty, important" (Macquarie). severe: "rigorous, strict or harsh" (Oxford); "harsh, extreme" (Macquarie).

Issues for determination

1. The publication of the Article on the Website is the "public act" of News. Whether the Complaint is substantiated turns on three key issues: 1. Whether the publication of the Article had the capacity to incite serious contempt for, or severe ridicule of, Ms Amati and/or transgender people. 2. If yes, whether one or more of those emotions was incited "on the ground" that Ms Amati is, or is thought to be, a transgender person. 3. If the answer to Question 2 is yes, whether the publication of the Article is not unlawful by reason of s 38S(2)(a) and/or s 38C(2)(c). The Applicant bears the burden of proving, on the balance of probabilities, the matters listed in (1) and (2) above. If those matters are proven, the onus of proving the final issue then falls upon News.

The audience

1. As a first step in determining whether the Article had the capacity to incite serious contempt for, and/or severe ridicule of Ms Amati and/or transgender people, the class of persons to whom the Article was directed must be identified.
2. The Article appeared on Mr Blair's blog page, Tim Blair Blog (https://www.dailytelegraph.com.au/blogs/tim-blair) (the Blog), which is contained in the opinion section of the Website. It is not protected by a pay wall and can be accessed through the Website itself and directly through search engines, such as Google and Yahoo. The Article received about 5000 hits. The number of people who accessed the Article by scrolling through the Website is probably higher.
3. Apparently there is no publicly available information about the characteristics - age, socio-economic background, education etc. - of the readers of the Website or Mr Blair's blog page. Nor did News produce any such information in these proceedings.
4. Mr Blair claims to have some knowledge of the people who subscribe to his Blog, largely through reader feedback. On his account, since he began publishing online in 2001 he has never "targeted" an audience, rather "readers have come to him and their numbers have grown". Mr Blair describes his readers as "moderate to centre right" not "the harder edge of Tele readers". He claims that readers seek out his blog for his "take" on current news. He describes his style as "irreverent" using satire and humour. He asserts that the Blog takes a "wry look at daily news events without being dry or boring" and "informs readers while providing them with a laugh".
5. News describes the readers of the Daily Telegraph as "more Footy Show than Four Corners" by which we understand News to suggest that they are working Australians of average education with "middle-brow" tastes whose views on social issues are moderately conservative but reasonably tolerant.
6. The relevant group for the purpose of determining whether the Article has the capacity to incite one or both of the relevant emotions are the readers of Mr Blair's blog. On the available material it is difficult to make any reliable findings about the demographics, education levels or other characteristics of this group, which might inform an assessment of their likely reaction to the Article. While Mr Blair has some contact with a number of subscribers to the Blog, on the available material it is not possible to know whether those people are representative of the subscribers to his blog and readers of the Article. Nonetheless, we think the assumption made by both parties that the readers of the Blog fall to the right of the political spectrum is probably correct. More to the point we think it likely, as the applicant contends, that like many Australians the readers of the Article probably have had little, if any, contact with openly transgender people and are largely ignorant about gender identity issues.

Applicant's submissions

1. The applicant contends that the following contextual factors support the contention that the Article had the capacity to incite serious contempt for, or severe ridicule of Ms Amati and/or transgender people.
2. First, the nature of the Blog. The applicant disagrees with Mr Blair's characterisation of the Blog as "light hearted" and "humorous" and contends that a more accurate characterisation would be "provocative, inflammatory and socially divisive", pointing to the following articles written by Mr Blair: "Get up, Stand Up, Stand Up for the Judge" (an article about a Sydney Muslim woman who refused to stand in court), "Full Court Press Council" (an article critical of the decision taken by the Australian Press Council to investigate a complaint made in relation to an article published in The Australian about refugees held on Nauru), "Officially not a Racist" (an article critical of the Human Rights Commission), "Let's all Laugh about violence against women" and "On the Sunni side of the street" (an article about the "intensely Islamic Sydney suburb of Lakemba"). She contends that common to each of these articles and the Article the subject of the Complaint, is Mr Blair's use of satire to ridicule and deride minority groups and individuals belonging to those groups.
3. Second, the low levels of public awareness, tolerance and acceptance of transgender people within Australia. In support she cites a number of recent studies which found a high proportion of transgender people report peer rejection, isolation, bullying and discrimination (see, for example, P Strauss, A Cook, S Winter, V Watson, D Wright Toussaint and A Lin, Trans Pathways: the mental health experiences and care pathways of trans young people (2017) (Telethon Kids Institute, Perth, Australia); T Jones, E Smith, R Ward, J Dixon, L Hillier and A Mitchell, "School experiences of transgender and gender diverse students in Australia" (2016) 16(2) Sex Education.
4. Third, the alleged negative bias towards transgender individuals in the Australian media. The applicant points to a study undertaken by not-for-profit social justice organisation, Rainbow Rights Watch, "Translating Transphobia: Portrayals of Transgender Australians in the Press 2016-2017" report, 2018 accessed 12 September 2018, which reviewed articles published in the Australian media between 1 January 2016 and 31 December 2017. The study found a "strong correlation" between negative article sentiment and articles containing multiple references to "transgender".
5. Fourth, the "historic oppression" experienced by transgender Australians. The applicant asserts that this is relevant because it may be presumed "to form part of the ordinary reader's knowledge and experience of human affairs": Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18.
6. In addition to these contextual factors, the applicant points to the features of the Article itself - choice of language, focus and tone - which she asserts support a finding that the Article was capable of inciting serious contempt for and/or severe ridicule of Ms Amati and transgender people as a group.
7. Elaborating on that argument, the applicant points to the choice of words used to describe Ms Amati, notably the word "tranny" in the opening line of the Article. The applicant contends that the word "tranny" is a pejorative slur targeting transgender women. In support, she points to dictionary definitions and style guides used by leading news organisations.
8. These include the Macquarie Dictionary (online) accessed 7 September 2017, which defines "tranny" to mean "Colloquial (often derogatory) → trannie". The Oxford English Dictionary (online) accessed 7 September 2017 gives a similar definition: informal, offensive a transvestite or transgender person
9. In Allan Siegal and William Connolly, The New York Times Manual of Style and Usage: The Official Style Guide Used by the Writers and Editors of the World's Most Authoritative News Organization (5th ed, 2015) Three Rivers Press) (The New York Times Manual of Style and Usage), the guide instructs: "Do not use the offensive slang tranny".
10. In AP Editors, The Associated Press Stylebook 2018 (2018 online, Associated Press) accessed 7 September 2017, the guide carries an entry in similar terms: Do not use the derogatory term such as tranny except in extremely rare circumstances - only in a quote when it is crucial to the story or the understanding of a news event.
11. Second, the Article's focus on Ms Amati's gender identity and the fact that she had undergone gender reassignment surgery. The applicant points out that the Article carries six express references to Ms Amati's gender identity despite bearing no apparent relevance to the alleged facts of the assault. She submits that it is notable that before any mention is made of the alleged facts, or the victims of the assault, the Article refers to Ms Amati's gender identity, genitals and the fact that she had undergone reassignment surgery. She contends that this focus is likely to have the effect of conflating, in the mind of the reader, Ms Amati's gender identity and her conduct in the assault.
12. The applicant points to the policies adopted by The New York Times, Associated Press, Reuters and other news organisations, regulators and human rights organisations which caution against gratuitous references being made to a person's transgender status or referring to a person's transgender status in pejorative terms. The New York Times Manual of Style and Usage states: Cite a person's transgender status only when it is pertinent to the story and its pertinence is obvious to the reader. Unless a former name is newsworthy or pertinent, use the name and pronoun preferred by the transgender person.
13. The entry for "transgender" in the Reuters Handbook of Journalism (2nd ed online, 2008, Reuters) accessed 12 September 2018 is in similar terms: We typically only mention that a person is transgender if it is relevant to the story. For example, no need to describe one of three victims of a random car crash as a transgender person.
14. The UK independent regulator of newspaper and magazines, the Independent Press Standards Organisation, has issued an editors' Code of Practice, "Guidance on researching and reporting stories involving transgender individuals", code of practice, October 2016 accessed 7 September 2017. The Code recommends that before publishing an article about a transgender person editors consider, whether the person's transgender status is relevant to the story, whether the article includes unnecessary information such as references to medical details about the person's gender transition, and whether the language used to describe the person is pejorative or prejudicial.
15. The Victorian Equal Opportunity and Human Rights Commission makes similar recommendations. In "Guide for media - reporting on gender identity" accessed 12 September 2018, the Commission counsels against describing or defining a person by their gender identity, unless relevant, and sensationalising on the basis of the person's gender identity.
16. Third, the tone of the Article. The applicant contends that the use in the opening line of the pejorative term "tranny" together with the gratuitous reference to Ms Amati "having been chopped herself", sets the mocking tone used throughout the Article. Together with the absence of any mention in the Article about the motivation for the assault, coupled with the phrase "sought to share the experience [of "being chopped"]", imputes, argues the applicant, that Ms Amati's transgender status was a motivating factor in the assault.
17. Fourth, the demeaning reference to the term "the chop" to refer to Ms Amati having undergone gender reassignment surgery. She argues that had that term been used to refer to other types of necessary medical treatment which involve intimate body parts, such as mastectomy (surgical removal of one or both breasts usually to treat breast cancer) or orchiectomy (surgical removal of one of both the testicles usually to treat testicular cancer or prostate cancer), it would justifiably be considered to be vulgar and highly offensive.
18. Finally, the applicant asserts that it is highly relevant that the author of the Article is a respected and influential journalist whose views probably hold significant weight among his readers.

Submissions made by News

1. News disputes that the Article had the capacity to incite serious contempt for or severe ridicule of Ms Amati. It argues that the Article, while flippant, did not incite or have the capacity to incite contempt for, or ridicule of, Ms Amati at the "extreme end of the scale". News concedes that some people may have found the Article rude, indecorous or insulting of Ms Amati but points out that this is not relevant to the test posed by s 38S of the Act.
2. News disputes that the word "tranny" is a pejorative term, pointing out that this view is not one universally held within the transgender community. News points to Bryan J Lowder, "The 'Tranny' Debate and Conservatism in the LGBTQ Movement", Outward Magazine (online), 30 May 2014 accessed 1 January 2018 , in which Outward's editor, Bryan Lowder wrote: A furor is growing within the queer community around the idea that progress means abandoning words and cultural affiliations that a vocal subset of trans people deem offensive. Tranny, the highest-profile of these words, is both a slur and a term of endearment, a brand that can sting and a badge that can be worn with pride.
3. In addition, News cites Rich Juzwiak's blog post, "The Politics of "Tranny," debated by Trans People on I am Cait", Gawker (14 March 2016) accessed 12 September 2018, which features a debate between openly transgender writers, Jenny Boylan and Kate Bornstein. The article quotes Ms Boylan as saying: [Using the word "tranny'] is like saying the F-word to a gay man, or the n-word to a person of colour' It's the word I associate with beatings, being diminished, being on the receiving end of violence.
4. Ms Bornstein is quoted as expressing an opposing view: I call myself tranny. I've been a tranny for 30 years. If you want me as part of your family, you say my name.

Consideration

1. The applicant must establish that the Article was capable of inciting the ordinary reader of the Article to feel serious contempt for, and/or severe ridicule of, Ms Amati on the grounds of Ms Amarti being a transgender person. She does not need to establish that any person was, in fact, incited.
2. The relevant group for the purpose of making this assessment is the readers of the Blog. There is little reliable information about the characteristics of this group. However, the parties agree that readers of the Blog probably hold views towards the conservative end of the political spectrum. More relevantly, reflecting Australian society at large, this group probably has had limited contact with and exposure to openly transgender people. The applicant's hypothesis that, as a consequence, readers of the Blog may be more susceptible to being influenced by an opinion leader's views about transgender people, is plausible.
3. Mr Blair claims that the articles on the Blog are designed to "inform readers while providing them with a laugh". The laugh in this case was at Ms Amati's expense, whom Mr Blair portrayed as a figure of fun: "The tranny" who takes an axe to unsuspecting customers … "having being [sic] chopped herself"; "The previous he [who] apparently doesn't like people who buy pies or milk"; the person "charged with intentionally causing grievous bodily harm and being way too Adelaide for Sydney". The unavoidable conclusion is that Ms Amati's transgender status is the focus, if not prurient interest, of the 131-word article.
4. There may be, as News contends a divergence of opinion within the transgender community about whether the word "tranny" is a term of derision. This is, however, irrelevant. The issue is not the likely meaning of the term conveyed to the transgender community but the likely meaning conveyed to readers of the Blog in the context in which it was used. Consistent with dictionary definitions, we find that the term "tranny" is likely to be understood by the ordinary reader to be a term of insult and derision. That is especially so given the context in which the term was used: in an Article which deliberately poked fun at Ms Amati's transgender status.
5. The Article undoubtedly conveyed to the ordinary reader the impression that Mr Blair saw Ms Amati as a spectacle of ridicule and fun and possibly held her in contempt. In our view, the Article was probably capable of inciting contempt for, and ridicule of, Ms Amati and possibly transgender people at large. In reaching that conclusion the choice of and play on words, the multiple gratuitous references to Ms Amati's gender identity, and the powerful imagery of customers being attacked by an axe and Ms Amati "being chopped herself", are especially relevant. So, too, is Mr Blair's standing among his readers. As he asserts, it cannot be assumed that his readers will always agree with the opinions he expresses. However, we think it likely that his views carry significant weight, especially on topics his readers have limited knowledge and experience, transgender people being but one example.
6. The more difficult question is whether the Article had the capacity to incite serious contempt for and/or severe ridicule of Ms Amati in the ordinary reader. It cannot be overlooked that the words "contempt" and "ridicule" in s 38S are qualified by the adjectives "serious" and "severe", respectively. In Veloskey v Karagiannakis [2002] NSWADTAP 18 at [29] an Appeal Panel of one of the predecessors to NCAT, the NSW Administrative Decisions Tribunal commented: In the context of s 20C [unlawful racial vilification] the public act must be capable of inciting intense dislike or hostility towards a person or group of persons, or grave scorn for a person or group of persons, or extreme derision of a person or group of persons: [citations omitted]. The use of the adjectives "serious" and "severe" call for an evaluative judgment on the part of the tribunal of fact, within a broad discretion: Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs [1995] FCA 1653; (1995) 62 FCR 556.
7. The task of identifying the line between the emotions of ridicule and severe ridicule was considered in the latter decision of Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267. Referring to the statement made by the Appeal Panel in Veloskey at [29] that "severe ridicule" equates with "extreme derision", the Tribunal commented at [41], [42]: But while these views refine the meaning of 'severe ridicule' by describing different degrees of severity, they do not greatly assist in being able to say when conduct has crossed the 'severe ridicule' line. Qualifiers such as 'mild' and 'harsh' are relative measures of degree, and cannot be understood in the abstract any more than the wrong that parliament means to address through this legislation exists in the abstract. The parliamentary debates make clear that that wrong is the causing of, at worst, physical harm, and, at least, offence and distress, to people on the ground of a characteristic, in this case homosexuality. To identify ridicule that is 'mild' on the one hand and 'harsh' on the other could involve a judgment as to the possible impact of the ridicule on the type of person to whom it is directed. An indicator that conduct is "severe ridicule" could therefore be an assessment that it could reasonably cause distress or offence to a person with that characteristic. But conduct can be severe ridicule without that assessment being made.
8. The applicant contends that read as a whole and having regard to the use of pejorative language, the gratuitous emphasis on gender identity together with the vulgar and dehumanising references to Ms Amati having undergone gender reassignment surgery, the Article was capable of inciting each of the relevant emotions towards Ms Amati and transgender people at large. She argues that the reference to Ms Amati having undergone reassignment surgery, "having been chopped herself", and the juxtaposition with the headline "Allegedly Axing Evie" moves the Article from being capable of inciting mild ridicule and contempt of Ms Amati, to being capable of inciting severe ridicule and serious contempt.
9. News disagrees, contending that the Article fails to reach the "high bar" set by s 38S. While conceding the possibility that the Article had the capacity to incite ridicule of, and contempt for, Ms Amati, News asserts that the Article falls a "long way short" of the type of public acts found by the Tribunal to amount to unlawful vilification under the Act, citing by way of example a decision made by NCAT that an article carried on a website which stated that same sex marriage would permit homosexual men to engage in "all sorts of nasty things" including "child paedophilia", amounted to unlawful homosexual vilification: Burns v Sunol [2016] NSWCATAD 81: at [21], [22].
10. If, by this submission, News is suggesting that the task of evaluating whether a public act has the capacity to incite one of the relevant emotions, should be undertaken by comparing the impugned act with public acts considered to fall at the extreme end of the scale, we are unable to agree. To be caught by s 38S it is enough that the public act has the capacity to incite one of the relevant emotions - here, serious contempt and/or severe ridicule. The task of making that assessment is not assisted by comparing the capacity of the impugned act with the most extreme case.
11. The task of assessing whether the Article is capable, in an objective sense, of inciting feelings of serious contempt for, or severe ridicule of, Ms Amati and/or transgender people in the ordinary reader of the Blog, is difficult. It is inevitably impressionistic and does not lend itself to empirical measurement or scientific assessment.
12. We are conscious of the prevalence of casual, low-grade attitudes of aversion or even contempt for some minorities in the community, including transgender people. We are also conscious that many, perhaps most, transgender people have suffered the effects of ridicule and contempt expressed towards them on the basis of their transgender status. We accept that the media plays a key role in shaping the community's perception of transgender people and that gratuitous and demeaning references to a person's gender identity contribute to a climate of prejudice and intolerance.
13. We have no hesitation in accepting the applicant's claim that she found the Article to be deeply offensive and dehumanising toward Ms Amati and transgender people as a group. The Article was published with apparent disregard for the injurious effect it might have on transgender people. It is evident that Mr Blair was seeking to make fun of Ms Amati and probably transgender people more generally. His attempt at humour was in poor taste and completely devoid of empathy or sensitivity.
14. The Article is but one of a number of articles carried by the Australian media which contribute to the perpetration and perpetuation of demeaning negative stereotypes and a lack of acceptance of transgender people within the community. However, the question posed by s 38S is whether the Article is capable, in an objective sense, of inciting the ordinary reader to feel serious contempt of, or severe ridicule for, Ms Amati and/or transgender people. While the Article comes close to the line, especially in relation to its capacity to evoke emotions of severe ridicule of Ms Amati herself, we are not persuaded that it crosses that line. In reaching that conclusion we have assumed that many of Mr Blair's readers have had little, if any, contact with openly transgender people and are unlikely to come from a position of natural sympathy towards this minority group. Nonetheless, we are not persuaded that the ordinary reader is so lacking in intelligence or taste that he or she would be incited to serious contempt for, or severe ridicule of, Ms Amati or transgender people at large.
15. This application must therefore be dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 September 2018