Equality Australia has welcomed a court ruling that found anti-trans campaigner Kirralie Smith and Binary Australia unlawfully vilified two trans women in a series of social media posts.
It marks the first time someone has been found to have unlawfully vilified a person for being trans under NSW law.
In the NSW Local Court on Tuesday, Deputy Chief Magistrate Sharon Freund found that Smith and her anti-trans group Binary Australia incited hatred and serious contempt for the women, who were targeted for playing football with their local clubs.
“These women were subjected to horrendous harassment online, including being publicly identified, outed and misgendered,” said Equality Australia Legal Director Heather Corkhill.
“People who target vulnerable minorities to incite hatred and fear need to be called out and stopped. Smith and her supporters are out of step with the law, out of step with community values, and out of step with modern Australia.”
The Deputy Chief Magistrate also found that the vilification provisions under NSW law are valid and do not infringe the implied freedom of political communication under the Commonwealth Constitution.
“The court has made it clear: online posts made in bad faith that incite hatred, serious contempt or severe ridicule regardless of the harm it causes cannot be disguised as ‘political communication’. Not only is that argument baseless — it’s against the law,” Ms Corkhill said.
“Trans Australians continue to face relentless attacks that push them out of public life and contribute to some of the most severe mental health outcomes in the country.
“Today’s judgement proves beyond doubt that those who engage in doxxing and targeted attacks on vulnerable minorities are not simply expressing ‘free speech’, they are abusing individuals in clear violation of the law.”
The two trans women have also applied for court orders requiring Smith and Binary Australia to pay compensation, take down the posts which publicly identified them, undergo anti-discrimination training, publish a public apology and not repeat the vilification in the future.
A decision on the amount in damages and other orders will be handed down in November following submissions.
The decision comes only a few weeks after Smith lost her appeal against a decision to put in place an apprehended personal violence order (APVO) to protect one of the players from further harassment and intimidation.
In an email to Binary supporters Smith said she would be consulting with her legal team and studying the decision in greater detail. She was not present in the court when the decision was handed down, and is currently on holiday overseas.
“Man’s laws will never trump the laws of nature and reality.” she said in the email.
Binary Australia was previously known as the Marriage Alliance, a group who campaigned against changing Australia’s marriage laws.
During the debate over marriage equality, they produced as series of questionable advertisements including one that depicted a woman in a rainbow noose, and another that was filled with dubious statistics.
After the marriage laws were changed the group morphed into the anti-transgender body Binary. Prior to becoming the leader of Binary Australia Smith was a prominent member of the Q Society and a campaigner against Islam and halal certification on food.
She stood as a candidate for the short lived right wing party Australian Liberty Alliance. She later joined Cory Bernardi’s Australian Conservatives party but stood down as a candidate before the 2019 election.
Lyle Shelton is the a director of the organisation. He was also previously an unsuccuessful candidate Cory Bernardi’s Australian conservatives, and has also spent time with Fred Nile’s Christian Democrats. He is currently a repetitive candidate for the Family First party, and their national spokesperson. Prior to his multiple attempts to enter politics Shelton was the Managing Director of the Australian Christian Lobby.
In a social media post attributed to the Family First party. Shelton said the court’s decision was a “blow to girls and women’s rights and for freedom of speech” and the laws were “unjust”.
“These are unjust decisions based on unjust laws. The law must be changed to protect girls and women’s sports and freedom of speech,” Shelton said.
Shelton said the current anti-vilification laws needed to be revised and wound back.
“Australians should be free to engage in debate, even robustly. The limits to free speech should be at incitement to violence, not to protect the political positions of those engaged in identity politics by shutting down discussion.
“Sadly, Liberal and Labor politicians allow the law to be used vexatiously by anti-free speech activists. “While these laws are often referred to as ‘hate speech laws’ they are in effect used to silence speech activists hate.” he said.
In 2022 the US based Global Project Against Hate and Extremism (GPAHE) listed Binary as one of the top 20 hate groups in Australia.
