Queensland Civil and Administrative Tribunal (QCAT) has dismissed vilification complaints brought by two drag queens against conservative campaigner Lyle Shelton.
Johnny Valkyrie and Dwayne Hill alleged Mr Shelton breached Section 124A of the Anti-Discrimination Act 1991 (Qld) through negative online posts he made about the pair presenting Rainbow Storytime at Brisbane Library in 2020.
Between January and November of that year, in Facebook posts, a blog and video podcast, Mr Shelton made various claims about the men specifically and drag queens in general, including that they were “dangerous role models for children”, wanting to “spread their radical sexual expressionism and gender confusion to children everywhere”, “hell bent on trashing the purity and innocence of the next generation”, and living in a “debauched world”.
The men, who both identify as male and homosexual, filed vilification complaints with the Queensland Human Rights Commission, and after no conciliated resolution, asked for a referral of their complaints to QCAT.
In his 78-page judgment published on August 10, Member Gordon described the difficulty he faced in assessing the men’s complaint that they had been vilified on the grounds of their sexuality or gender identity under s 124, which states “A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group”.
He said the law had been in place for 22 years but had never been considered by QCAT or a higher court in Queensland, and case law from other states was inconsistent.
“The vilification law uses a model stated in simple terms but whose meaning and application is unclear,” he stated.
Member Gordon said there were two limbs of the complaint – that the men had been vilified as individuals and as members of a defined group – and that the words viewed as vilification could be assessed according to their literal meaning or their implied meaning.
Mr Valkyrie and Mr Hill asserted that Mr Shelton’s published material amounted to vilification by asserting directly or by implication that:
(a) the two men were child sex offenders, and/or when dressed as drag queens, and drag queens generally (and therefore also transgender persons and persons with homosexual sexual orientation), were a danger to children;
(b) drag queens were “advocates” for gender fluidity and the adult entertainment industry in presenting drag queen story time, “inducting” children “into the worlds of gender fluidity and sexual expressionism”;
(c) transgender persons are dangerous to children, and Mr Valkyrie however dressed, was dangerous to children because he was a transgender person;
(d) Mr Hill, however dressed, was dangerous to children because he uses the name “Diamond Good-Rim” on Facebook, performs to adult audiences as a drag queen, and uses that name when doing so;
(e) LGBTIQA+ activists are hell bent on trashing the purity and innocence of the next generation.
Member Gordon stated the test to be satisfied under s 124A was “whether the natural and ordinary effect of the respondent’s material on a hypothetical audience would be to incite people to hatred towards or serious contempt for the complainants or for drag queens”.
He said the uncertainties in interpreting the law included:
- how the hypothetical audience should be constructed in order to apply the objective test of whether the public act would incite members of that audience on the relevant ground;
- whether it was sufficient for a public act to have the “capacity to incite” the hypothetical audience, or where it should be “likely to incite”, or whether some other formulation was required; and
- whether “on the ground of” refers to the public act, or the reaction of the audience, or both.
On Mr Shelton’s assertions that the men were a danger to children – specifically that they were involved in child abuse or paedophilia – and that they advocated gender fluidity and sexual expressionism, Mr Gordon stated any belief held or criticism generated would not be “on the ground of a relevant attribute, that is (for Mr Valkyrie) on the ground of his gender identity or sexuality and (for Mr Hill) on the ground of his sexuality”.
“In other words, the people would hold the same belief even if the complainants did not have any such attribute,” he said.
Member Gordon also stated he believed a substantial proportion of drag queens were neither transgender nor homosexual.
“Hence I do not think it follows that an attack on drag queens is also an attack on transgender persons and persons with homosexual sexual orientation. The group of persons known as ‘drag queens’ is too wide and too diverse for that to be the almost inevitable consequence,” he said.
On the assertions that transgender people, including Mr Valkyrie, were dangerous to children, Member Gordon said he did not think Mr Shelton’s blog would have the “natural and ordinary effect” of causing people to be critical of Mr Valkyrie merely because he was a transgender person.
“These days, any such a reaction to the blog would be unnatural and extraordinary because of general understanding and respect in Australia of the attribute of gender identity, so if there was any such incitement it could not be vilification under Section 124A,” he said.
On the assertions that Mr Hill was a danger to children, Member Gordon made similar findings.
On the assertion relating to LGBTIQA+ activists, Member Gordon stated “the natural and ordinary reaction to these posts upon those critical of the activists would be only to confirm their disagreement with them”.
“I cannot see that the post could increase that disagreement to hatred or serious contempt to the activists,” he said.
He concluded all complaints made by Mr Valkyrie and Mr Hill must fail.
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