Talking transgender: the border between crime and denigration

Law and Religion Australian Neil Foster has reported on a case before the ACT Appeals Tribunal that attempts to find the line between infringement and defamation in resolving complaints about a vigorous debate on social media.

The ACT Appeals Tribunal case involved the analysis of a series of critical comments about a transgender person. “Is it illegal to say that a trans woman is a man?” Not according to the Representing decision, ”Foster reports.

For the ACT tribunal, it is important to draw a line between “defamation” and “offense,” according to Foster, which could have influence in other jurisdictions. In most Australian anti-discrimination laws, the bar is set between offense and defamation.

For example, ACT Discrimination Act 1991, section 67A under the heading ‘unlawful defamation’ reads: ‘It is unlawful for a person to incite hatred, disgust, serious contempt or ridicule of a person or group of persons on the basis of one of the following, except in private:. And then list the protected characteristics, including transgender people.

The law provides the normal exceptions for fair reporting, which we and Foster rely on. Here we will discuss disrespectful comments that we would not allow on a Eternity wire.

The court concluded that some comments deemed illegal by a previous court were not. They included this sarcastic example “I apologize that Bridget [Clinch, the respondent in the appeal who identifies as a transgender woman] has been given the impression by this system that his opinions about himself should be supported by others at all times. It is obvious that under capitalism “human rights” means the rights of white men. It was not Bridget who was victimized here but who manipulated a system already built in her favor.

The Tribunal commented: “We believe that declaring Ms. Clinch to be a man who was not a victim but who manipulated the system is offensive and insulting, but it does not meet the test of incitement to hatred etc. . This post also raises the question of whether this falls within the exception for a reasonable and honest discussion of transgender issues. In our opinion, there is a real problem as to whether it is defamation … According to our analysis … it is not defamation.

The court discussed the point of view of both sides in the case. One party argued that calling a trans woman a man can never be defamatory. The other “seemed to claim that it was still libel.”

The court formed an opinion that is somewhere in the middle. “In particular, when the words indicate that because of the protected attribute a person is inherently inferior, a threat or a criminal, the question of defamation will arise.

“Words directed at the physical attributes of trans women can be libelous if they pass this test. Generally speaking, we don’t think that talking about a trans woman as a man will necessarily do it. “

An example of what the court ruled to be genuine libel: “How ridiculous that you have to lie and flatter those delusional anti-women detractors. The good thing is everyone knows Bridget is a man no matter what he dictates people call him. Even men and anti-female maids know he’s a man. We can laugh at how pathetic he is and know that he is angry because no one really believes in his delusions – the only reason he’s supported is because he helps support the misogynistic views of men and their people. desperate attempts to control women.

The Tribunal concluded that it was defamation: “In our opinion, this statement goes beyond being merely offensive and insulting, to becoming strong and abusive language. It refers to [the respondent] as anti-women, delusional, hateful, man, dictating to others, is laughable, pathetic, angry, delusional, misogynist and controlling women. … This is incitement, disgust or severe mockery of a trans person and group of women. It is not reasonable, it is a rational or proportionate discussion on transgender issues…

Foster comments that the court’s approach is good. “The overall conclusion of the procedure will not satisfy everyone. Certain things considered insulting or offensive are not prohibited. Some things that others will take to be true and legitimately part of a solid debate about the region are considered libel. But overall, the ruling takes the discussion forward in a useful direction by noting that the actual terms of the ban require careful consideration and that when issues are discussed in a rational and moderate manner, it won’t amount to ‘pushing’ to hatred ”, etc. “

Eternity believes that none of the examples cited would be acceptable if submitted as a comment on our Facebook page. We want these issues to be discussed. But we don’t think it’s necessary to try to provoke those with whom you do not agree. Please, Eternity commentators, take note.

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