Ms Southey is a highly qualified data scientist with a significant number of post graduate qualifications. She is also a director of an organisation called Rainbow Rights Watch. The organisation's mission is the elimination of discrimination, violence and hate crimes perpetrated against transgender Australians. It is in pursuit of that function that she has brought the present matter to this Tribunal. She has done so previously against another party, Australian Press Council arising out of a newspaper article; see Southey v Australian Press Council [2023] NSWCATAD 145.
Her complaint concerns a media article that she contends amounts to vilification of transgender persons. At page 4 of the Applicant's complaint of 28 January 2023 she claims to rely on section 38T of the Anti-Discrimination Act 1977 (NSW) (the AD Act) as the foundation for the complaint. This is an error since 38T concerned itself with establishing the criminal offence of serious transgender vilification. It has been repealed. We will treat the complaint relevantly as relying on s 38S of the AD Act and that is how the Respondents have treated it.
There is no dispute that the Applicant is a transgender person within the meaning given in section 4 of the AD Act.
Section 38S(1) of the AD Act provides that:
38S 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 is a transgender person, or
(b) a group of persons on the ground that the members transgender person, or of the group are transgender persons.
Section 38S(2) provides that:
(2) Nothing in this section renders unlawful -
(a) a fair report of a public act referred to in subsection (l), or
(b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, 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.
On 28 January 2023 Ms Southey made a complaint to Anti-Discrimination NSW (ADNSW) of transgender vilification against Nationwide News ABN 98 008 438828, Mr Mark Butler, Mr Kieran Rooney, and Mr Sam Weir. She contended, although it is disputed, that Nationwide News is the publisher of the daily tabloid newspaper 'the Herald Sun'. The correct publishing company of that paper is, according to the Respondents, in fact, Herald and Weekly Times Pty Limited. She contended that the other Respondents Mr Butler and Mr Rooney were journalists employed by Nationwide News Pty Ltd and that Mr Weir is the editor of the Herald Sun, which is owned by Nationwide News. ln view of the findings we make below, it is not necessary to resolve this factual dispute, and on a hearing conducted on the papers, however we incline to the view that it can be accepted that the correct publisher is as the Respondents contend.
In her complaint she alleges that on 11 August 2022, Mr Butler, Mr Rooney and Mr Weir published an article (the "article") in the Herald Sun entitled "Women inmates demand removal of trans prisoner guilty of attacking females while a man". She contended in her complaint that the Article reported that "fearful prisoners" at a Melbourne correctional centre had demanded the removal of an inmate from the centre on the basis of that person's transgender status. She contended that the Article repeatedly referred to the subject as the "transgender offender".
It is common ground that on 11 August, 2022, the First and Second Respondents wrote the Article for publication about a prisoner housed at the Dame Phyllis Frost Correctional Centre in Victoria, headlined "Women Inmates Demand Removal of Trans Prisoner Guilty of Attacking Females While a Man". An agreed copy of the article was provided as Annexure 1 to the statement of the Applicant.
It is also common ground that the Article was edited and authorised for publication by the Third Respondent. The Fourth Respondent published the Article on the website of its newspaper, the Herald Sun.
It is also common ground that on or around 11 August 2022, the Fourth Respondent promoted the article on the social media accounts of its Herald Sun masthead. It is common ground that the public responses to the article are as set out in Annexure 2 to the statement of the Applicant.
It is not in dispute that the publication of the article was a "public act" as defined in s 20B of the AD Act.
The article was in the following terms:
Fearful prisoners at Victoria's biggest women's jail have launched a petition demanding the removal of a transgender inmate who committed serious sex offences against females while a man. Women at the Dame Phyllis Frost Correctional Centre in Deer Park say the transgender offender, who was moved to the Murray protection unit on July 5, should not be there.
The women's plea says they have no concern about transgender individuals, but are concerned the inmate has a "working" penis and a history of violent sexual assault against a woman and a girl.
The Dame Phyllis petition says many prisoners have been the victims of sexual assault or had supported victims. "Consequently, they carry significant trauma associated with this experience," it said.
"Therefore, upon hearing this news ... the mental wellbeing of many of the women was severely compromised "They became visibly upset as they were triggered and traumatised."
Those in Murray unit were allegedly told the inmate would initially be locked down 23 hours a day, but the ultimate aim was for "a full living, working and socialisation integration".
They have approached the Minister for Corrections, the Department of Justice and Community Safety, Corrections Victoria and the Ombudsman over the matter.
"We feel threatened, unsafe, distressed and traumatised with this current situation. Accordingly, we demand that (the inmate) be immediately removed from the Murray unit," the petition says.
Female inmates say they have no concerns about transgender individuals but are concerned that the inmate has a 'working' penis and a history of violent sexual assault.
The transgender inmate last year pleaded guilty to sexually assaulting a woman in a Richmond street, while still a man. During court proceedings over that matter, it emerged the prisoner had also spent time in a European jail for a child-sex offence.
There has for some years been debate overseas about transgender inmates being placed in women's (sic) prisons.
British media reported two years ago that transgender prisoners born as males had carried out seven sex attacks on women in jail.
One of them, Karen White, who was born a man, was sent to New Hall Prison for rape. White later sexually assaulted two female inmates.
A Department of Justice and Community Safety spokeswoman said: "All prisoner placement decisions are made with the best interests of each individual prisoner in mind, while balancing the safety and security needs of the prison system as a whole.
"Corrections Victoria does not comment on individual prisoners or their placements."
In her complaint Ms Southey contends that the article uncritically repeated claims that the person's transgender status caused other inmates to feel "fearful" and "unsafe" and "distressed" and "threatened" and "traumatised" and "concerned". She contends that the article uncritically repeated claims that "the mental wellbeing of many of the women [at the prison] was severely compromised" and that "they became visibly upset as they were triggered and traumatised" merely by being housed in the same space as a woman who is transgender. She contended in her complaint that the article cherrypicked isolated examples of a transgender woman committing offences in prisons abroad to give weight to the prejudicial idea that transgender women, in and of themselves, as safety risk to people who are not transgender, referring in the article to the proposition that: "British media reported two years ago that transgender prisoners born as males had carried out seven sex attacks on women in jail. One of them, Karen White, who was born a man, was sent to New Hall Prison for rape. White later sexually assaulted two female inmates".
Ms Southey accepts that while there are violent sex offenders who are transgender, there are also violent sex offenders who are "homosexual, Black, Muslim, as well as members of other minority groups". She contended in her complaint that Dame Phillys Frost Correctional Centre houses a number of inmates convicted of identical, or similar crimes as had this prisoner.
Ms Southey contends that what was unique about the article was that it singled out this particular offender as a specific (or heightened) risk to the safety of others solely on the basis of their transgender status and that the article uncritically repeated calls for transgender sex offender prisoners to be segregated, and treated differently to other female sex offender prisoners, on the basis of their transgender status alone. She says that the article caused substantial harm to vulnerable transgender groups, in addition to reinforcing negative stereotypes by portraying transgender people as a threat to others. She argues that rather than constituting a threat, transgender women are, in fact, at disproportionate risk of violence and sexual assault, especially in prisons. She referred to a number of studies into transgender women's safety, performed in the US, and in the UK. She contended in her complaint that in Australia, a study by UNSW found that 53% of transgender women have experienced rape, sexual assault, or sexual coercion, compared to 23% of cisgender women.
Ms Southey refers to a global study into the safety and socio-economic status of transgender people in the United States found that those "who were incarcerated were five to six times more likely than the general incarcerated population to be sexually assaulted by facility staff, and nine to ten times more likely to be sexually assaulted by another inmate". She also refers to a peer-reviewed Australian study performed by La Trobe University and Australian Catholic University found that Victorian transgender prisoners are "much more likely to be subjected to violence than perpetrating violence" and that transgender people are portrayed as inherently dangerous. Ms Southey contends that taken at its highest, the article demonises transgender women and amplifies prejudice by perpetuating negative stereotypes about transgender women representing a "threat" to the "safety" of others. She contends that a reasonable person, having regard to all of the circumstances would consider that transgender people would find this offensive, as would people of minority races be offended by material which portrays people of particular races as an inherent "threat" to others.
Ms Southey argues that there is no public interest in amplifying such prejudice, and accordingly, the defences in s 38(2) of the AD Act would not be available and that Courts throughout Australia have routinely rejected the public interest argument and censured and disciplined journalists and editors that portray, for example, Aboriginal Australians, of themselves, as a threat.
On 27 March 2023 ADNSW wrote to the Respondents seeking written response to the complaint. On behalf of all Respondents, it was submitted that the article did not incite hatred or serious contempt of the incarcerated individual because of their transgender status. They contended that if however, it was thought otherwise, the defence in s 38S(2)(c) of the AD Act applied.
On 7 June 2023 ADNSW received the complainant's comments on the response to her complaint. In that response she maintained her allegations of transgender vilification. ADNSW formed the view that the complaint could not be resolved by conciliation and on 8 June, 2023, ADNSW referred the complaint to the NSW Civil and Administrative Tribunal (the "Tribunal") pursuant to section 93C(a) of the AD Act.
On 5 July 2023, the Tribunal ordered, by consent of the parties, that the matter be determined on the papers.
In submissions here, the remedies that are sought are that the Tribunal should order, pursuant to section 108(2)(c) and 108(2)(d), that the Fourth Respondent is to remove the article from its website within the next 10 days, so that it does not continue to incite further serious contempt.
It is sought that the Tribunal should order that to correct the understanding of the 13,000 readers who have already consumed the article and redress the harm caused to the Applicant, the Fourth Respondent is required to publish a statement on its website in the following terms:
"On 11 August, 2022, Mark Butler, Keiran Rooney, Sam Weir, and the Herald and Weekly Times published an article on the website of the Herald Sun headlined 'Women Inmates Demand Removal of Trans Prisoner Guilty of Attacking Females While a Man'. The article was widely read by the general public.
The article reported that prison inmates felt "unsafe" and "distressed" about the social integration of an inmate who is transgender into the prison. In the presentation of the facts, the article impliedly linked transgender identity with serious criminalism and 'threats' to people who are not transgender. It cherrypicked isolated examples of transgender people committing serious sexual offences, which likely caused readers to generalise about all transgender people as threats'. It included lurid and un-necessary references to the person's genitals and their private medical history.
The article did not make clear that there is no cogent empirical evidence that transgender people are, of themselves, a threat of serious criminality or a threat to others. It failed to make clear that such fears are more likely based on anti-transgender bias and prejudice.
The NSW Civil and Administrative Tribunal found that the article unlawfully vilified transgender people by inciting serious contempt for transgender people by linking them with criminalism and 'threats' to others."
It is sought that the Tribunal should order that it promote the statement, consistent with the original article, including on the website landing page, and in any marketing communications to customers, and on social media platforms.
It is sought that the Tribunal should order that the Fourth Respondent to discontinue publishing material which incites serious contempt towards transgender people by linking them with criminalism, and 'threats' to people who are not transgender.
[2]
What does "on the ground of" mean in the section 38S of the AD Act?
As may be seen above, both provisions relied on here as having been infringed require that the conduct be on the ground that the person is a transgender person or a group of persons on the ground that the members of the group are transgender persons.
Neither party made submissions directed to the legal principles relevant to that issue. There are numerous variations and permutations of this expression "on the ground of…" and similar expressions to be found in the State and Commonwealth laws that deal with discrimination and vilification. In some states the expression used is that the offending act needs to have been done "on the basis" of an attribute, such as sex or gender identity.
Courts have adopted a purposive approach to interpreting this requirement. In particular, courts have focused on the 'essential nature' of the respondent's conduct, rather than the motive or intention of the respondent, as this approach assists in eliminating racial discrimination in all its forms and manifestations.
In the context of a case concerning sections 9 and 11-16 of the Racial Discrimination Act 1975 (Cth) in Wotton v Queensland [No 5] (2016) 352 ALR 146 at [534]-[540] (Wotton), Mortimer J identified what she said was the outcome-based limb of s 9 which focuses on the 'purpose or effect' of the relevant act on the human rights of the relevant person or group. Her Honour emphasised that s 9 focuses on the 'actual outcome', or the practical consequences, of the act, rather than the motive or intent of the respondent. In relation to the word 'effect', her Honour stated that a 'qualitative assessment of the impact of conduct' is required. This necessarily involves examining the circumstances surrounding the relevant act, including its consequences for the complainant. Her Honour emphasised that s 9 is concerned with achieving substantive, rather than merely formal, equality.
Wotton involved a claim of racial discrimination made against members of the Queensland Police Service ('QPS') regarding their treatment of Aboriginal people during a period of heightened tension between the Aboriginal community and police in a remote community. Affirming the principles outlined above, Mortimer J stated at 289 [553] that the existence of "laudable motives, appreciable difficulties or understandable dilemmas [on the part of the QPS] will not prevent or preclude a contravention of s 9 where it can nevertheless be said that the impugned conduct … was based on race".
In Wotton, Mortimer J at [551]-[553] interpreted "based on race" as focusing on the 'essential nature' of the relevant act. Her Honour held that the character of the act must be determined by examining all the surrounding circumstances, including the consequences of the act.
The reference to race need not be explicit for a statement to be based on race. In Wotton, Mortimer J said at 290 [559], quoting Qantas Airways Ltd v Gama (2008) 167 FCR 537 at 564 [76] (French and Jacobson JJ):
The making of a remark is an act. It may be that the remark involves a distinction because it is made to a particular person and not to others. The remark may convey no express or implicit reference to the person's race, colour, descent or national or ethnic origin. Nevertheless, a linkage may be drawn between the distinction effected by the remark and the person's race or other relevant characteristic by reason of the circumstances in which the remark was made or the fact that it was part of a pattern of remarks directed to that person and not to others of a different race or relevant characteristic. Where the remark, critical of one person in a group but not others, expressly or by implication links the criticism or denigration to that person's race then that linkage establishes both the distinction and its basis upon race.
As mentioned above, Mortimer J adopted an approach that focuses on the essential nature of the relevant act, rather than the respondent's motive or intention. In particular, her Honour noted that "the basis of the impugned conduct must not be conflated with intention or subjective purpose [of the alleged discriminator]".
Although the language to be found in the AD Act of something being said to be "based on race" is linguistically different prohibitions of statements "done on the ground of the person's race" (Racial Discrimination Act 1975 (Cth)) or said "on the basis" of race (Anti-Discrimination Act 1991 (QLD)), it does seem to us that for present purposes, the question remains the same or substantially the same, focusing on what is the 'essential nature' of the relevant act to be determined by examining all the surrounding circumstances, including the consequences of the act.
[3]
The vilification case - was the article capable of inciting hatred towards, serious contempt for, or severe ridicule of, a person?
Under section 38S, as is noted above, 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.
The words "hatred", "serious contempt" and "severe ridicule" are to be given their ordinary meaning: Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40] (Kazak); Ekermawi v Jones (No 3) [2014] NSWCATAD 58 at [33]. In Kazak [40], the Tribunal set out the ordinary meaning of "serious", "contempt", "severe" and "ridicule", as defined in the Macquarie Dictionary and Oxford Dictionary:
"serious" means "important, grave" (Oxford); "weighty, important" (Macquarie);
"contempt" means "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);
"severe" means "rigorous, strict or harsh" (Oxford); "harsh, extreme" (Macquarie);
"ridicule" means "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).
In Riley v State of NSW (Department of Education) [2019] NSWCATAD 223 [129] to [133], the Tribunal considered the test for establishing whether comments were capable of constituting racial vilification as expressed in Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414 (Sunol No 2).
This approach has also been adopted by this Tribunal in vilification cases such as Comensoli v Passas [2019] NSWCATAD 155, Lamb v Campbell [2021] NSWCATAD 103, Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79 and Malenha v Sullivan [2017] NSWCATAD 222. In Margan v Manias [2015] NSWCA 388, the Court of Appeal adopted the findings in Sunol No 2 and also noted that:
1. there can be no incitement in the absence of an audience (at [76]);
2. the identification and nature of the audience are essential for the purpose of determining objectively whether an ordinary member of that audience would be likely to be incited by the public act (at [78]);
3. it is not necessary that any person actually be incited (at [12]); and
4. it is necessary that the words used are capable of inciting hatred, serious contempt, or severe ridicule (at [11]).
The motive or intention of the respondent to incite is irrelevant to the question of whether vilification has occurred for the purposes of s 20B(a) and/or (b) of the AD Act: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye [2002] NSWADT 32 at [21]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]; Sunol No 2 at [30]-[31]. In the latter case the Court of Appeal said it was prepared to proceed on this basis without finally deciding the issue but observed that it is consistent with the approach taken by the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349. In that case Mason CJ and Gaudron J made the following comments:
However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, 'to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status'. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s.17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. (at 359); see Deane J agreeing at 382; but see McHugh J at 401.
Were the position otherwise, ignorance and prejudice could be excused on the basis that there was "no intention" to vilify.
A useful summary of the parameters of unlawful vilification in NSW was given in 2012 in the NSW Court of Appeal in the earlier mentioned decision in Sunol No 2 Chief Justice Bathurst stated at [26]:
(a) Incite 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.
(b) It is not necessary for a contravention that a person actually be incited.
(c) It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of … [the targeted group]; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed.
(d) It is not necessary to establish an intention to incite.
(e) For the public act to be reasonable within the meaning of … [the sub-section 2 exemption categories] 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.
Allsop P said in Sunol No 2 at [61]-[62]:
61 Subject to the following comments, I agree with the Chief Justice as to the construction of subsection (1). The question of the audience against which the public act is to be assessed for the purposes of s 49ZT (1) may be very important in any individual case. It will be intimately connected with the whole context of the public act. Thus, in an emotionally charged public meeting where reason has been pushed aside by passion or hatred, it may be inappropriate to posit the standard of the "reasonable" member of the class which may be aptly described as a group of impassioned bigots. The question is ultimately one of fact in the context in which the act takes place. If the general public is being addressed, bearing in mind the approach conformable with Brown and Coco, the ordinary and reasonable members of the public may be appropriate to consider.
62 Further, satisfaction of s 49ZT (1) is not necessarily to be assumed or concluded by rude, indecorous, base or insulting language that reflects some dislike of, or opposition to, homosexuality. The section provides for an act to incite hatred, serious contempt, or severe ridicule. Fine linguistic distinctions should of course not be drawn which may deflect attention from the language of the statute. The words of the statute are to be applied with a recognition of the degree or quality of the act contemplated by the language. The act is to be assessed by reference to the context in which it takes place, including the audience or likely audience.
Although Sunol No 2 involved alleged homosexual vilification under AD Act s 49ZT, the summary applies equally to the scope of unlawful racial vilification. That point has been subsequently confirmed by the NSW Court of Appeal in a racial vilification case: Jones v Trad (2013) 86 NSWLR 241, 253 [52].
For the reasons we have dealt with elsewhere in these reasons, the expression "on the ground of" means that transgender status must be one of the real, general true reasons for the incitement: Jones v Trad [2013] NSWCA 389 at [98].
These principles were recently reviewed and applied in a transgender vilification case in Valkyrie and Hill v Shelton [2023] QCAT 302 (Valkyrie), which it should be noted that Valkyrie is subject to an Appeal at present to the QCAT Appeals Tribunal. There Messrs Valkyrie and Hill alleged that Mr Shelton had breached section 124A of the Anti-Discrimination Act 1991 (Qld) through negative online posts he made about the pair presenting a storybook reading session to children called "Rainbow Storytime" at a Brisbane Library in 2020.
Between January and November of 2020, in Facebook posts, a blog and video podcast, Mr Shelton made various claims about the men specifically and drag queens in general, including that they were "dangerous role models for children", wanting to "spread their radical sexual expressionism and gender confusion to children everywhere", "hell bent on trashing the purity and innocence of the next generation", and living in a "debauched world".
The Applicants alleged that Shelton's published material amounted to vilification by asserting directly or by implication that the two men were child sex offenders, and/or 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. As to that the Member held that any belief held or criticism generated 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". The Member also stated that a substantial proportion of drag queens were neither transgender nor homosexual;
"Hence I do not think it follows that an attack on drag queens is also an attack on transgender persons and persons with homosexual sexual orientation. The group of persons known as 'drag queens' is too wide and too diverse for that to be the almost inevitable consequence,".
The Applicants also alleged that Shelton's published material amounted to vilification by asserting directly or by implication that;
(a) 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".
(b) transgender persons are dangerous to children, and Mr Valkyrie however dressed, was dangerous to children because he was a transgender person;
(c) 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;
(d) LGBTIQA+ activists are hell bent on trashing the purity and innocence of the next generation.
The member held that Mr Shelton's blog would not have the "natural and ordinary effect" of causing people to be critical of Mr Valkyrie merely because he was a transgender person and said;
"These days, any such a reaction to the blog would be unnatural and extraordinary because of general understanding and respect in Australia of the attribute of gender identity, so if there was any such incitement it could not be vilification under Section 124A."
On the assertions that Mr Hill was a danger to children, Member Gordon in Valkyrie made similar findings.
On the assertion relating to LGBTIQA+ activists, the Member held that;
"the natural and ordinary reaction to these posts upon those critical of the activists would be only to confirm their disagreement with them" and could not find that the post could increase that disagreement to hatred or serious contempt to the activists".
The Member decided that the test to be satisfied under s 124A was "whether the natural and ordinary effect of the respondent's material on a hypothetical audience would be to incite people to hatred towards or serious contempt for the complainants or for drag queens". This was a nuanced conclusion based on, and in part critical, of the tests that had been enunciated in earlier decisions in different jurisdictions.
[4]
Was there transgender vilification in this case?
Whether the use of some expression in a particular context suggests that it is capable of being more than an insult or is likely to incite hatred, severe ridicule or serious contempt requires it to be considered in the precise factual matrix in which it is published.
The words themselves of course have to be considered in context to see whether they would incite hatred or serious contempt or ridicule in the relevant sense.
In our view it does not follow reasonably that an article about a particular transgender person in a prison that implies negative characteristics about that person, if that is what this article did, constitutes vilification of the applicant either personally or on the basis that the person is part of a group of persons who are transgender persons.
In an appropriate case of course, were the publication one which ascribed those characteristics to all transgender people, or those of which the applicant is a member as an identified subclass then the position may be different. We do not consider that this article does ascribe those characteristics to all transgender people or to any subgroup of which the applicant is a member.
Applying the correct approach which the cases have identified, we do not consider that this article was such as to incite hatred towards, serious contempt for, or severe ridicule of this applicant who apart from being another transgender person, is not referenced in the article nor are any other characteristics of transgender persons generally identified in a way that would mean that they also were said to apply to the applicant and therefore amounted to vilification of her.
Nor do we accept that the mere fact that there were some clearly disrespectful and even quite outrageous and ill-considered responses to the article posted on Facebook, demonstrates that the article did incite serious contempt. One comment was "put him in a man's prison and leave him there". A response referred to the prisoner as a "ladyboy". Another said "he's a male regardless of how he defines himself". The worst referred to him as a "a rapist hetro" and asked how one can "simply claim to be female in mind and be put in women's prison". Another replied to this warning them not to be discriminatory and that "if he identifies as a woman, she stays in womens jail. Aren't we meant to celebrate things like this".
The nub of the applicant's case is that, insofar as the article reported that prison inmates felt "unsafe" and "distressed" about the social integration of an inmate who is transgender into the prison, the article impliedly linked transgender identity with serious criminalism and 'threats' to people who are not transgender. The key to this argument is the reference to the word "implied", and by its use, it confesses that the article itself does not state that proposition. So, did the article imply that? On the current state of the law, the Tribunal is required to consider the context in which the statement or article is made, and the publication takes place.
In our view the article did not either state or imply that transgender persons as a class or subclass engaged in general or regularly or significantly in serious criminalism conduct and constituted a 'threat' to people who are not transgender.
The article identifies not that the author editor or publisher of the article holds any particular view but at the outset reports on the conduct of others in a news providing context, that "fearful prisoners at Victoria's biggest women's jail have launched a petition demanding the removal of a transgender inmate who committed serious sex offences against females while a man". And it is reported, women at the Correctional Centre in Deer Park say the transgender offender, who was moved to the Murray protection unit on July 5, "should not be there".
The article identifies that the prisoners' plea says they have no concern about transgender individuals, but are concerned that the inmate has a "working" penis and a history of violent sexual assault against a woman and a girl. So, it is immediately apparent that there is a repudiation of the idea that the concern, whether validly held or not, by fellow prisoners on the basis of that person being a "transgender individual".
Then the article says that the petition says that many prisoners have been the victims of sexual assault or had supported victims. "Consequently, they carry significant trauma associated with this experience," it said. It also said, "Therefore, upon hearing this news ... the mental wellbeing of many of the women was severely compromised" and "[t]hey became visibly upset as they were triggered and traumatised". Then the article says that the petition says that "We feel threatened, unsafe, distressed and traumatised with this current situation. Accordingly, we demand that (the inmate) be immediately removed from the Murray unit." That is a report of what the petition says the other prisoners feel.
That is a report on a proposition of fact as to what the petition says. It does not endorse those reactions or say, connote or imply that they were justified because of the prisoner's transgender identity. Nor does it suggest that any prisoner who was transgender was likely to cause such upset triggering or traumatisation.
It then goes on to explain why those reactions were had by reporting what these petitioners said, namely that female inmates say they have no concerns about transgender individuals generally but are concerned that the inmate has a 'working' penis and a history of violent sexual assault. The same proposition might be put about a non transgender male put in a female prison. The focus is on the presence of a person with male genitalia as a co prisoner in a female prison.
The next material part before the article refers to the approach of the prison authority, the Department of Justice and Community Safety spokeswoman. This section is perhaps the most concerning because the article now stops merely discussing what the petition says and talks generally about transgender prisoners and makes an association to the commission of sexual offences. It refers to the particular inmate as being a transgender inmate who "last year pleaded guilty to sexually assaulting a woman in a Richmond street, while still a man. During court proceedings over that matter, it emerged the prisoner had also spent time in a European jail for a child-sex offence. In court proceedings over that matter, it emerged the prisoner had also spent time in a European jail for a child-sex offence".
In our view that part identifies in context a further basis for why the women in the prison, who may know the history of the prisoner as a sex offender, had the concerns which they had. The proposition that during court proceedings over that matter, it emerged that the prisoner had also spent time in a European jail for a child-sex offence was probably irrelevant to the article since there was no suggestion that there were children in this prison, but in our view, it was not, by itself or with the rest of the article referable to transgender persons generally or characteristics that transgender persons have.
Then the article says that "there has for some years been debate overseas about transgender inmates being placed in women's (sic) prisons. British media reported two years ago that transgender prisoners born as males had carried out seven sex attacks on women in jail. One of them, Karen White, who was born a man, was sent to New Hall Prison for rape. White later sexually assaulted two female inmates". The premise here is that, in the context of explaining historical concerns about transgender prisoners born as males being put in women's prisons, it is reporting as a fact that transgender prisoners born as males had carried out seven sex attacks on women in jail. Again, it was not, by itself, or read with the rest of the article, referable to transgender persons generally or characteristics that transgender persons have.
The second critical element of the applicant's case is that she contends that the Respondents cherrypicked isolated examples of transgender people committing serious sexual offences, which likely caused readers to generalise about all transgender people as threats. The applicant contends that it included lurid and un-necessary references to the person's genitals and their private medical history.
The article did refer to examples of transgender people committing serious sexual offences, however there is no evidence that these were cherrypicked isolated examples. That is not to say that the applicant's contentions about the limited extent to which transgender people commit serious sexual offences is not correct. It is just that in pointing to the fact that some people who identify as transgender have committed serious sexual offences, in the context of this article which seeks to report on the concerns of female prisoners about this particular prisoner, would not cause readers, the audience here, to generalise about all transgender people as threats.
We are not satisfied that it included lurid and un-necessary references to the person's genitals and their private medical history, however we consider that even if it did, that by itself would not mean it was capable of inciting the requisite ill-feeling required to establish a complaint of transgender vilification.
In those circumstances, it is unnecessary to consider whether the defence in section 38(2)(c) of the AD Act is made out.
Having regard to the findings we have made; the applicant's complaints of transgender vilification are dismissed.
[5]
Orders
1. The Applicant's complaints of transgender vilification are dismissed.
[6]
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
[7]
Amendments
31 May 2024 - Paragraph 6 corrected - replaced "and it is not in dispute here" with "although it is disputed"; added "The correct publishing company of that paper is, according to the Respondents, in fact, Herald and Weekly Times Pty Limited."; added "ln view of the findings we make below, it is not necessary to resolve this factual dispute, and on a hearing conducted on the papers, however we incline to the view that it can be accepted that the correct publisher is as the Respondents contend."
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Decision last updated: 31 May 2024