Free speech fears in hate law
There are fears debate on transgender issues may be shut down in Tasmania by a proposed extension of hate speech laws to protect gender identity, including “gender expression”.
A legal analysis of AntiDiscrimination Act amendments proposed by Labor suggests they could prevent some women’s groups continuing to argue that biological males who self-identify as women should be denied access to female-only services.
“Presenting the perspective from a women’s rights position, and not acknowledging that trans women are female, could be construed as inciting hatred (under the changes),” said Bronwyn Williams, a lawyer and spokeswoman for Women Speak Tasmania.
“It limits our ability to say: ‘Hang on a minute, you are a biological male, you’re not female.’
“They could say: ‘I am legally female, I have a female name, my personal preference is for a female personal pronoun, you can’t discuss this, and if you do you are inciting hatred and ridicule.’ ”
Labor’s amendments would extend hate speech protections to include “gender identity or variations of sex characteristics”.
The act’s gender identity definition would be expanded to include “gender expression”, described as “any personal physical expression, appearance, speech, mannerisms, behaviour patterns, names and personal references that manifest or express gender or gender identity”.
Ms Williams said the changes — likely to be supported by the Greens and to swing on the casting vote of the independentminded Speaker — could see people accused of hate speech for referring to a trans person’s biological sex, former gender or previous honorific or name.
The ALP, which backed down this week on the compulsory removal of sex from birth certificates, is standing firmly by its amendments.
Labor justice spokeswoman Ella Haddad said the changes were long overdue protections for transgender people, with no impact on free speech.
“In no way does the existing act or the changes I’m proposing seek to prevent people speaking about issues, debating issues in the public sphere,” Ms Haddad said.
“The gender identity definition … in the act deals with how somebody identifies, as male or female or some other way. The new definition we’re adding … deals with how you display that expression physically.
“They strengthen the act in terms of protecting people from discrimination, but it’s a furphy argument to say that this would stop people talking about those things.”
Liberal Attorney-General Elise Archer called on Labor to refer all its proposed amendments to the Tasmania Law Reform Institute for detailed analysis.