ACAT decision finds debate on the nature of transwomen is in the public interest

ACAT decision finds debate on the nature of transwomen is in the public interest

Last month, after long deliberation, the ACT Civil and Administrative Tribunal (ACAT) handed down its decision on the appeal of radio newsreader, Beth Rep, partially reversing an earlier finding that she had unlawfully vilified former infantry Captain turned trans activist, Bridget Clinch. The ruling helps to remove lingering uncertainty about where the legal parameters of any public discussion of trans issues might lie, reducing the threat of vilification claims against individuals who venture upon this controversial topic.

The contention between Clinch and Rep dates back to International Women’s Day 2018 when Rep, a radical feminist and talk radio newsreader based in Canberra, posted gender critical comments on her Facebook page. Her posts were widely shared across various media and social media platforms and this prompted the first complaint from Clinch, a resident of Queensland, to the ACT Human Rights Commission. 

Mediation resulted in Rep agreeing to post an apology and pay Clinch $700. However, Rep’s apology post attracted 304 comments in support of Rep, many expressing outrage at the success of Clinch’s complaint and support for Rep under the hashtag #istandwithbeth. This public social media conversation prompted Clinch to make a second complaint to the Tribunal which, in 2020, found Rep had victimised and vilified Clinch.

Rep was held responsible both for the tenor of her own posts, for failing to delete comments from her supporters (which, for example, described Clinch as “a male bully”), and for “liking” some of these comments. The Tribunal acknowledged that trans activists posting “anti-feminist” comments to Rep’s Facebook string had added fuel to the fire. It even acknowledged that some of these comments were “unacceptable” but, even so, still obliquely criticised Rep for leaving them in place.

“Leaving the anti-feminist rants on the page could have had no other effect than it would provoke her followers to respond in kind and they did.”

Rep was ordered to remove various social media posts, pay $10,000 in damages and that she “refrain from making, publishing or distributing any statements, information, suggestions or implications, including hyperlinks on any website or social media that she owns or controls, posts which are the same or of similar effect, whether directly or indirectly.”

As one contributor to the conversation, Janet Fraser, commented at the time:

“It is hard not to interpret this as having a potentially chilling effect on women’s capacity to discuss sex-based rights. It is clear that people are already scouring posts hoping to bring another action like this.”

The November decision of the Appeal Tribunal therefore has significance beyond the Rep’s immediate circumstances because it helps clarify some of the legal uncertainty created by the 2020 ACAT decision. Specifically, the Appeal Tribunal found that “calling a trans woman a man will not necessarily be vilification” and that “discussion and debate on the nature and position of trans women…is in the public interest”.

The November 2021 Appeal Tribunal decision sets the bar higher for trans claims of victimisation than the 2020 Tribunal decision. Words would need to be individually targeted and infer that “because of being a trans woman a person is inherently inferior, a threat, or a criminal” for “the issue of vilification” to arise.

This partial victory, however, has come at a high personal cost to Rep, who is still obliged to pay $5,000 in damages and is understandably personally fatigued by the litigation. In a statement at the time she said:

“This claim against me by Clinch has burdened me for the past 4 years and has resulted in the loss of my employment and has impacted negatively on my health. I need it to be over. Despite this failure by the legal system to protect women’s freedom of speech, I hope others will continue to find the courage to speak up and defend our sex-based rights.”

It is time now for other women to boldly step into the space that Rep has fought to defend – a space that is absolutely necessary if Australian women are to continue to command the language they need to voice their opinions and express their concerns about issues that uniquely affect women.

Women’s Forum Australia is an independent think tank that undertakes research, education and public policy advocacy on issues affecting women and girls, with a particular focus on addressing behaviours and practices that are harmful and abusive to them. We are a non-partisan, non-religious, tax-deductible charity. We do not receive any government funding and rely solely on donations to make an impact. Support our work today.

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