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.

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