Currently in Victoria, vilification on the grounds of race or religion is illegal through the Racial and Religious Tolerance Act (2001). Momentum has been growing to extend these protections to other areas such as sex, gender, sexual orientation and disability.
In March 2021, the report of the inquiry by the Legal and Social Issues Committee into anti-vilification protections and in September 2021, the Victorian Governemt released it's response to the report .
While the VWG supports many of the recommendations, we have concerns about how this legislation could affect women, especially those who critique gender ideology.
Our specific concerns relate to the following recommendations:
Recommendation 1: That the Victorian Government extend anti‑vilification provisions (in both civil and criminal laws) to cover the attributes of:
a. race and religion
b. gender and/or sex
c. sexual orientation
d. gender identity and/or gender expression
e. sex characteristics and/or intersex status
g. HIV/AIDS status
h. personal association.
The precise terms and definitions of additional protected attributes should be finalised in legislation in consultation with all relevant stakeholder groups.
The inclusion of gender identity, while offering protections to transgender people, will in effect mean that the underlying ideology which materially harms women, lesbians and gay men cannot be robustly critiqued.
The committee has also flagged the possibility of defining women by “gender” rather than sex to be “as inclusive as possible”. It is unclear what is meant by “gender”. Is it a subjective, indefinable feeling, as per the notion of gender identity? Is it sex-based stereotypes, namely compliance with patriarchal notions of femininity?
In any case, this effort to be “inclusive” seems to exclude adult human females at the same time as criminalising efforts to defend our human rights against what is in effect a men’s rights movement wearing dresses. It is also of note that this constitutes an implicit admission that women’s rights are incompatible with the demands of the gender identity movement.
Recommendation 8: That the Victorian Government lower the civil incitement test from ‘conduct that incites’ to ‘conduct that is likely to incite’.
This will make it very easy for women to be sued for feminist speech. A similar regime in the ACT led to radical feminist Beth Rep being fined $10,000 for liking Facebook comments that referred to a man who had been using the legal system to bully her as a “male bully”. Women will be able to be sued for telling the truth about trans activists. While this is obviously of lesser concern than the recommendation to criminalise women for telling the truth about the men who claim to be us, it is still highly oppressive and of great concern. It could ultimately lead to women losing everything if they do not have the money to pay for lawyers or meet payouts ordered by courts.
The same is applicable to lesbians and gay men who call out the strong elements of homophobia and rape culture in trans ideology. This is especially relevant to the insistence that it is transphobic for lesbians and gay men to be attracted solely to individuals of the same sex as themselves. There is an implication in trans ideology that lesbian and gay men owe intimate access to their bodies to trans-identified people of the opposite sex.
Recommendation 9: That the Victorian Government introduce a new civil harm‑based provision to assess harm from the perspective of the target group.
Formulating a harm‑based test
In terms of formulating the harm‑based test, the Committee considered the following two proposals:
Make unlawful an act that ‘is reasonably likely, in all of the circumstances, to offend, insult, humiliate or intimidate another person or group of people’, similar to the harm‑based provisions contained in the RDA and ADA.
Make unlawful conduct that ‘a reasonable person would consider hateful, seriously contemptuous, or reviling or seriously ridiculing of a person or a class of persons’.
Both options aim to achieve the same outcome and comprise a reasonableness test to objectively assess the conduct from the perspective of a reasonable member of the target group. For example, if a person was vilified for their disability, the conduct would be judged against a ‘reasonable’ person with that same disability.
This represents a significant lowering of the threshold, meaning that more is caught by the justice system, itself a source of far more profound harms than words could ever cause. Furthermore, it is mostly marginalised groups – the very people this purports to protect – who are targeted by the justice system, who are disproportionately caught up in it, and who suffer the greatest harms in it. The fines issued will not be able to be paid by people in economic hardship (which most people who get caught up by the system are), and this may eventually lead to imprisonment. Any expansion of the justice system will destroy lives, especially those of already marginalised people.
Recommendation 17: That the Victorian Government enable the Victorian Equal Opportunity and Human Rights Commission to direct a person to provide information or produce a document needed for a complaint and enforce such a direction by filing it with the Victorian Civil and Administrative Tribunal.
This is worrying in terms of civil liberties, including privacy rights, and could make women less safe online.
Recommendation 18: That the Victorian Government implement a positive duty for organisations to take reasonable and proportionate steps to prevent vilification, as is currently the case for discrimination, sexual harassment and victimisation matters under the Equal Opportunity Act 2010 (Vic).
This could make workplaces and universities even more hostile spaces for women due to the increased advancement of the gender ideology agenda and complete intolerance of opposing points of view.
Recommendation 20: That the Victorian Government reform the current criminal offences of serious vilification to simplify and lower the thresholds, and in particular, to specify that: A person must not, on the ground of one of the protected attributes, intentionally or recklessly engage in conduct that—
a. is likely to incite hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons; or
b. to threaten, or incite others to threaten, physical harm towards that other person or class of persons or the property of that other person or class of persons.
We are concerned that this recommendation may make radical and gender critical feminism into a crime. It could prevent us from frankly talking about trans ideology and the existence of autogynephilia as a common motivating factor for heterosexual and bisexual trans-identified males. Discussing the risk of sexual assault that results from mixed-sex spaces may also be caught by legislation that adopts these proposals. The same may be true of discussing how the pressure put on lesbians by trans activists to have sexual relationships with men who claim to be women is part of rape culture.
In short, these proposals that claim to protect women, the LGB community and people of colour may in fact criminalise them for standing up for their rights. These proposals are disproportionate, despite their attempt to appear progressive, and will cause deeper harm to marginalised communities than having no legal regime around vilification would.
Recommendation 21: That the Victorian Government review the requirement for the written consent of the Director of Public Prosecutions before commencing a prosecution for serious vilification.
This seeks to make it easier to prosecute people for political speech, including disagreeing with gender ideology. It represents an erosion of legal rights and protections.
Recommendation 22: That the Victorian Government review maximum penalties for serious vilification offences.
The discussion accompanying this recommendation makes it clear that the committee wants to see the maximum sentences significantly increased, citing the regimes in other states as justification. However, this should not be the justification for any changes to sentencing and is disproportionate to any harm that could possibly be caused by people making statements that may incite hatred, contempt or severe ridicule. It should be strongly opposed, as should criminalising political speech to begin with.
Recommendation 25: That the Victorian Government, in addition to implementing recommendation 24, monitor the public display of other hateful symbols to determine whether they should also be prohibited.
This could conceivably include feminist, lesbian and women’s symbols, as these recommendations seek to further enshrine gender identity ideology into law and criminalise any robust opposition to it.
Recommendation 26: That the Victorian Government investigate issues related to prejudice‑motivated crime such as: the test for motivation under section 5(2)(daaa) of the Sentencing Act 1991 (Vic) (and) international models such as the United Kingdom’s approach to hate crimes.
The UK is charging a woman with a hate crime for retweeting an image of suffragette ribbons, and has charged others for calling an adult human male a man and referring to castration of children as being what it is. Meanwhile, trans activists who publicly fantasise about murdering, brutalising and raping women who reject their ideology do so with impunity. That this legal framework is being held up as a model for Victoria to follow is alarming.
This recommendation represents a severe attack on human rights and affects women in particular. It is reminiscent of the kind of authoritarianism that is a hallmark of some of the very regimes that the committee seeks to ban symbols of (such as Nazism). This may, additionally, breach Australia’s obligations pursuant to international treaties and may also violate the High Court’s finding that the Commonwealth Constitution contains an implied right to freedom of political speech, as well as Victoria’s own charter of human rights.
Click here for a summary of the VWG's arguments for opposing elements of the Anti-vilification Bill.