By Stephanie Bastiaan and Rachael Wong
A New South Wales Court has made a finding that public discourse can amount to unlawful vilification in an alarming judgment that poses a dire threat to freedom of speech, political communication and women who speak up about the erosion of sex-based rights.
Last year, the world watched in disbelief as two male boxers, Imane Khelif and Lin Yu-Ting, dominated the female competition at the Paris Olympics. The visible fear and frustration of their female competitors combined with intense public and media scrutiny, marked a watershed moment for women’s sport. The biological reality of male advantage was undeniable, and a new International Olympic Committee policy safeguarding the female category is reportedly imminent.
Well before the Olympics made headlines, Binary spokeswoman Kirralie Smith was raising similar concerns in Australia. “Where is the safeguarding?” she asked on Twitter (now X) in March 2023, after calling out Football NSW for prioritising “inclusion” over fairness and safety in women’s sport. At the time, at least five trans-identifying male players had joined the women’s soccer league, and athletes and parents were increasingly alarmed about injuries and an unfair playing field.
For asking this simple question and for campaigning to protect women’s sport, Smith has now been subjected to nine separate rounds of litigation, including three applications for Apprehended Violence Orders (only one was upheld on appeal) and, most recently, two findings of unlawful vilification relating to her commentary about Stephanie Blanch and Riley Dennis – both trans-identifying male players competing in the women’s soccer category. This is the first time someone has been found guilty of “transgender vilification” in NSW.
The main judgments were handed down in August, but on Friday the Court imposed a $95,000 penalty ($55,000 to be paid to Blanch and $40,000 to Dennis), which doubles if not paid within 28 days, and ordered Smith to issue a public apology. She has said she intends to appeal.
The main point of difference between the global scrutiny of the Olympics and Smith’s advocacy here in Australia is NSW’s anti-vilification laws.
Why Kirralie Smith was found guilty of vilification
Under NSW’s transgender vilification law (section 38S of the Anti-Discrimination Act 1977), a person commits unlawful vilification if a public act is capable of inciting “hatred, serious contempt or severe ridicule” of someone because they are transgender, even if that was not the speaker’s intention.
Crucially, the test is purely objective: the Court does not need to find actual hatred, actual incitement, or any intention to cause harm. It is enough that the words could hypothetically cause someone to react strongly.
In Smith’s case, Deputy Chief Magistrate Freund found that describing trans-identifying male players as “he”, “male”, “man”, “fella”, “bloke”, “bloke in a frock”, posting or sharing publicly available images and sports statistics enabling identification of the players, and framing the participation of males in women’s sport as unfair, unsafe or deceptive “evoked fear” and could lead others to harbour “contempt”, “hatred” or “ridicule” of the players. What’s more, because Smith used real examples to illustrate the policy failures and did not have the players' feelings front of mind, her advocacy was not protected by the Act’s section 38S(2)(c) exemption for acts done “reasonably and in good faith” for genuine discussion in the “public interest”.
Smith’s advocacy was characterised as unlawful because the Court viewed her tone, imagery and messaging as going beyond what was “necessary” for legitimate policy commentary. However, to defend the sex-based rights of women and girls, it is necessary to use correct sex-based language. It is necessary to highlight the very real risks of males competing in female sports. And it is necessary to use real world examples to demonstrate why policy change is urgently needed. Moreover, “fear” amongst female athletes, parents and members of the public regarding safety and fairness issues already existed, and is something Smith was highlighting rather than evoking, in order to advocate change.
While this is an emotive issue, it must be said plainly that any form of bullying or harm directed towards trans-identifying players is wrong. These players are operating within the rules provided to them, and it is the rules and laws that must change. Indeed, personal comments against Blanch and Dennis posted by others on Smith’s social media posts submitted in evidence and which contributed to the finding against her, highlight the importance of keeping criticism focused on policy, not people.
Phrases like “bloke in a frock” may not be politically correct language, however, what is clear from all of Smith’s engagement – from her social media posts and blog articles on Binary’s website to her letter-writing campaign to Football Australia – is that her focus was the risks posed by biological males competing in female sport, not the transgender identity of Dennis or Blanch.
An alarming judgment
The judgment stretches NSW’s vilification laws far beyond their intended purpose. By treating policy-focused calls for change as “incitement”, the Court effectively collapsed the distinction between criticising a rule and vilifying a person.
Nothing in Smith’s posts encouraged hatred or harm. She raised concerns about safeguarding and competitive fairness, concerns now validated across the world. Yet her use of real-world examples, essential for demonstrating how sex-based categories are being eroded, was treated as evidence of bad faith.
Under this ruling, intent, truth, the public interest, and freedom of political communication are placed secondary to anti-vilification protections simply because someone might react strongly. This is not how vilification laws were ever intended to operate, and it marks a dangerous turning point for democratic debate in Australia.
The global shift – Australia is falling behind
Across the world, there has been a decisive return to common sense when it comes to protecting women’s sport. World sporting bodies like Aquatics, Rugby, Netball, Athletics and Boxing, as well as many British sports, have banned or implemented strict restrictions on biological males competing in the female category. The Trump Administration is demanding sex testing for athletes ahead of the 2028 Los Angeles Olympics. And even New Zealand has abandoned its previous “trans-inclusion” community sport guidelines.
This shift has been driven by the tireless work of athletes like Riley Gaines, prominent figures including J.K. Rowling, and organisations such as For Women Scotland, all committed to restoring biological reality and women’s sex-based rights under law.
Australia, by contrast, is falling further and further behind our Western counterparts, although many women are hoping that a victory for Sall Grover in the federal Giggle v Tickle appeal will help the country catch up.
What has become increasingly clear through the actions brought against Kirralie Smith, the discrimination case against Grover, and the vilification claim against breastfeeding expert Jasmine Sussex, is that women defending sex-based rights are being targeted through lawfare. Magistrate Freund’s findings and significant penalties against Smith will only embolden activists to pursue further litigation, whilst having a chilling effect on free speech and women’s advocacy in particular.
What must happen next
Trans-identifying male athletes competing in women’s sport isn’t hypothetical, it is the lived reality of many female athletes. And it is impossible to expose policy failure and drive meaningful change without showing the public what is actually happening, including using real world examples and through visual media.
Sporting bodies, not critics, are the ones placing trans-identifying male players in positions of public controversy by allowing them into female leagues, and they are the ones that must update their policies to protect women’s sport. To penalise women for describing these realities is a profound injustice. Legislators must similarly clarify sex-based protections for women and girls so that sporting bodies aren’t spooked by activists claiming that it is unlawful to have single-sex sports.
One of two things must happen in Smith’s case: The decision must be overturned on appeal, or NSW’s vilification laws must be reformed to ensure that genuine harassment is prohibited while political debate – especially advocacy for women’s sex-based rights – remains lawful. Women must be free to describe sex-based harms and use real examples without fearing financial ruin or prosecution. This is not merely a legal issue; it is a democratic one. The future of women’s sport, the rights, safety and dignity of women and girls, and free speech in Australia depends on restoring this balance.
Stephanie Bastiaan is Head of Advocacy and Rachael Wong is CEO at Women’s Forum Australia
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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