When Advocacy Becomes Vilification: The Kirralie Smith Ruling and the Narrowing Boundaries of Political Speech in Australia

The Kirralie Smith ruling began with a dispute over women's sport, but its significance reaches further. Considered alongside Pauline Hanson's recent result, it raises difficult questions about truth, dignity, proportionality and the shrinking space for imperfect political speech.

On 24 July 2026, the Supreme Court of New South Wales delivered its judgment in Smith v Blanch; Smith v Dennis.

Kirralie Smith and Binary Australia had appealed findings that their public advocacy concerning two male footballers competing in women's teams amounted to unlawful transgender vilification.

The result was not a complete dismissal of everything Smith argued, but the central findings against her remain. The Court upheld the underlying determinations that Smith and Binary had contravened section 38S of the Anti-Discrimination Act 1977 (NSW). The combined damages award of $95,000, comprising $55,000 in one matter and $40,000 in the other, also remains in place.

However, several important parts of the original orders were narrowed or set aside.

Smith must publish a court-ordered statement recording the findings for three months, but she has not been ordered to express remorse, renounce her beliefs or issue a personal apology. Broad orders that could have prevented almost any future reference to the two players were restricted to publications having the "same or similar effect" as the material already found unlawful. Orders that could have imposed a further $95,000 for non-compliance were also set aside and returned to the Local Court for reconsideration.

It is also important to use accurate legal language. This was a civil proceeding. Smith was not convicted of a crime, and the $95,000 is an award of compensation rather than a criminal fine. Section 38S describes the conduct as unlawful, but does not itself impose criminal sanctions.

That distinction may not reduce the financial or reputational consequences, but accuracy matters, particularly in a case about the limits of public speech.

How Did We Get Here?

The dispute began in early 2023, when Smith and Binary Australia published material questioning the inclusion of male athletes who identify as women in female football competitions.

One article concerned Stephanie Blanch and included a photograph. Further posts did not initially name Blanch but included photographs and identified the football club for which Blanch played. Separate posts concerning Riley Dennis included screenshots of a publicly available football leaderboard showing Dennis's name and sporting results.

The complaints were initially taken to the NSW Civil and Administrative Tribunal. NCAT ultimately declined to determine them after constitutional issues were raised, because a state tribunal that is not constitutionally recognised as a court cannot exercise federal judicial power in a matter involving the Commonwealth Constitution. The proceedings were then commenced in the NSW Local Court.

The Local Court heard both proceedings on 7 February 2025. In separate, unreported liability judgments delivered on 26 August 2025, Deputy Chief Judge Sharon Freund found that the relevant article and social-media posts amounted to unlawful transgender vilification. The subsequent Supreme Court appeal judgment records the procedural history and summarises the Local Court’s findings.

The Local Court accepted that public debate about transgender participation in women's sport is a genuine matter of public interest. It also accepted that Smith's purpose was to generate discussion and encourage Football NSW and Football Australia to change their policies.

But the Court concluded that the way the two players were identified was disproportionate to that purpose and that the publications were not made reasonably and in good faith. The Local Court placed particular weight on what it described as Smith's "careless disregard" for the personal hurt that the publications could cause.

In December 2025, the Local Court awarded $55,000 to Blanch and $40,000 to Dennis. It also ordered the removal of specified material, restrictions on further publication, and prominent public notices on Smith's and Binary Australia's websites and social-media accounts.

Smith and Binary appealed to the Supreme Court. The appeal was heard on 25 and 26 May 2026, with Justice Belinda Rigg delivering judgment on 24 July.

A Separate Legal Path

There has also been separate litigation involving an Apprehended Personal Violence Order obtained by Blanch.

That proceeding should not be confused with the transgender-vilification claims. It involved different legal tests and orders. However, the two paths intersected because the original correction notice ordered by the Local Court named Blanch, while the APVO prohibited Smith from identifying Blanch until December 2026.

The Supreme Court corrected this conflict by requiring the public statement to refer only to "a soccer player," rather than naming Blanch.

Keeping these proceedings distinct is necessary if the public is to understand what the latest judgment actually decided.

What the Supreme Court Decided

The appeal was largely unsuccessful because many of Smith's proposed grounds were found to involve disputes about factual findings.

Under the relevant provisions of the Local Court Act 2007 (NSW), an appeal from the Local Court to the Supreme Court exists as of right only on a question of law. Questions involving mixed fact and law require leave, while there is no general appeal merely because a party says the Local Court reached the wrong factual conclusion.

This meant that Justice Rigg was not conducting the entire case again or deciding afresh whether she personally agreed with every conclusion reached by the Local Court. Much of the appeal turned on whether Smith had identified a reviewable legal error rather than an alternative interpretation of the evidence.

The constitutional challenge also failed. Smith argued that the vilification provisions impermissibly burdened the implied freedom of political communication. Justice Rigg concluded that she was bound by the NSW Court of Appeal's 2012 decision in Sunol v Collier (No 2), which upheld an equivalent provision concerning homosexual vilification. On that basis, sections 38R and 38S were not found constitutionally invalid.

Smith did succeed in relation to parts of the remedies.

The Supreme Court held that the original prohibitions on future publication were too broad. They could have prevented lawful commentary if either player later became relevant to a legitimate news story or public-policy debate. The orders were therefore narrowed so they apply only to future conduct having the same or similar effect as the publications already held to be unlawful.

The public statement was also limited to three months. It records the Court's findings but is not an apology in the ordinary sense. The statement does not require Smith to say that she has changed her beliefs about sex, women or sporting categories.

The original default-damages provisions were set aside. Those provisions could have required another $55,000 and $40,000 if the original orders were not complied with. The question of an appropriate order for non-compliance has been returned to the Local Court.

The underlying liability findings and the initial $95,000 damages award, however, were not overturned.

What the Courts Accepted

One of the most important aspects of this case is what the courts did not reject.

They did not find that discussion about male participation in female sporting competitions is inherently illegitimate.

The Local Court accepted that it is a matter of genuine public interest. It accepted that Smith and Binary wanted to generate public discussion and bring about policy change. It also accepted that their publications bore a rational relationship to that advocacy.

The dispute instead centred on whether the particular methods used, especially the identification of individual players, were reasonable and proportionate. That distinction needs to be understood.

The judgment does not legally require Australians to believe that biological sex is irrelevant to sport. It does not establish that male and female bodies are physically interchangeable. Nor does it resolve the scientific, ethical or policy arguments surrounding fairness, safety, privacy and opportunity in women's competition.

It concerns the way those arguments were publicly advanced.

Nevertheless, the practical implications extend well beyond Kirralie Smith.

The Problem of Intention

Under the interpretation applied in this case, a person does not necessarily have to intend to incite hatred, serious contempt or severe ridicule before being held liable.

The test is principally objective. The question is whether the publication was capable of inciting the prohibited response in an ordinary member of the class of people to whom the communication was directed. In Smith's case, that audience could include people who followed her because they were already interested in or sympathetic to her advocacy.

The judgment shows that in New South Wales, even publicly available photographs and competition results can become part of a vilification claim when an identifiable athlete is used to prosecute a policy argument. Liability still depends on the publication as a whole and on whether the statutory public-interest protection is established.

Smith's stated intention, to challenge a sporting policy rather than cultivate hatred, was relevant to the public-interest exception, but it did not prevent the original vilification provision from being engaged. This is where I believe the judgment should concern Australians well beyond the present debate.

When intention is not required, liability may turn on a judicial assessment of what words were capable of encouraging within a particular audience. A sincere policy advocate may therefore face substantial damages even without intending hatred or calling for violence. Caution remains relevant, but it is not conclusive: the statute does not require proof that the speaker intended the prohibited response, or that actual incitement occurred, although audience reactions and demonstrated harm may still be important evidence. That uncertainty may deter responsible advocates as well as reckless ones.

Words have consequences, and public advocates should take responsibility for the foreseeable effects of what they publish. But a legal standard capable of imposing life-changing financial consequences without requiring an intention to incite, or perhaps even proof of actual incitement, deserves close parliamentary scrutiny.

Where I Stand

My own position is that Kirralie Smith was right to raise the underlying issue.

Women's sporting categories were not created because women and men are socially interchangeable. They exist because male puberty produces average differences in size, strength, speed, power and skeletal structure that matter to performance and, in some sports, safety. How hormone treatment affects particular advantages remains contested and sport-specific; that uncertainty is itself a reason for careful, evidence-based eligibility rules.

Recognising those differences is not an expression of hatred. It is the basis on which separate female competition becomes meaningful. Women and girls should not be expected to surrender fairness, opportunity, privacy or physical safety because acknowledging biological sex has become socially uncomfortable.

Kirralie has taken an ethical position: that the interests of female athletes matter and that sporting institutions should not quietly redefine women's categories without serious public examination. I support that position.

Supporting the ethical principle, however, does not require me to claim that every phrase used in its defence was necessarily wise or beyond criticism. Some of the language referred to in the proceedings was deliberately blunt. Smith has defended that language as a direct description of biological reality, while the courts viewed the combination of that language, photographs, club information and repeated publications as personalising the debate in a way that crossed the statutory boundary.

Christians should be capable of holding two thoughts together.

A principle may be true while a particular expression of it may be imprudent. At the same time, an imperfect expression does not make the principle false. The answer cannot be to abandon women's rights whenever an advocate communicates less carefully than we might prefer.

Every Person in This Story

A Christian response must begin with the truth that every human being is made in the image of God.

Stephanie Blanch and Riley Dennis are not merely legal precedents, political symbols or examples in a sporting argument. They are human beings. They should not be threatened, stalked, humiliated or treated as though disagreement over sex removes their inherent dignity.

But the women and girls who play football are also image-bearers. Their bodies, opportunities, safety and privacy must not be treated as secondary considerations. Their concerns should not be dismissed as prejudice simply because they reject the increasingly dominant claim that gender identity should override biological sex.

Kirralie Smith is also more than the labels applied to her in hostile media coverage. She is a woman who has spent years advocating for what she understands to be the protection of women, children and biological truth.

The doctrine of the Imago Dei does not require us to pretend that every claim a person makes about themselves is objectively true. Nor does compassion require institutions to restructure sex-based categories around subjective identity. Christian love is not the suspension of truth. Truth is not hatred, and refusing to pretend that sex is optional is not a failure of compassion. But truth should also never become an excuse to delight in another person's distress.

Can the Issue Be Debated Only in Theory?

The Court accepted that transgender participation in women's sport may be debated as a matter of public interest. The difficulty is that public policy rarely exists only in theory.

Policies have consequences because they are applied to actual people, competitions, schools, hospitals, prisons and workplaces. Evidence of those consequences will usually involve real events and, at times, identifiable participants.

If advocates may discuss a policy in the abstract but risk enormous damages whenever they use a real example to demonstrate its effect, public-interest debate can become legally permitted in principle while practically dangerous in operation. That does not mean every individual should be named or photographed. There may be cases where anonymisation is both possible and responsible. But it raises a legitimate question: how can the public evaluate a contested policy if the evidence of its implementation cannot be openly examined?

The law must distinguish between genuine harassment of an individual and the good-faith use of verifiable information to illustrate the consequences of public policy. At present, that boundary is neither simple nor safe.

The Chilling Effect

A $95,000 damages award is beyond the capacity of most ordinary Australians to absorb. For an ordinary family, it is a potentially life-changing sum; for a small advocacy organisation, it may be existential. The broader cost of years of proceedings, legal representation and personal stress may be greater again.

Whether one agrees with Smith or not, the message received by other citizens will be unmistakable: entering a contentious public debate can expose you to consequences capable of altering your family's financial future. Some may call that accountability, while others will recognise a chilling effect.

The concern is not that every form of expression should be protected. Genuine threats, targeted harassment and incitement to violence can properly attract legal consequences. The concern is proportionality. Should advocacy aimed at changing a sporting policy, without a finding that the advocate intended violence or hatred, attract damages approaching the statutory maximum?

Those questions are not answered simply by saying that a court has applied the law. Courts interpret the legislation Parliament gives them. Parliament remains responsible for deciding whether the balance struck by that legislation is just.

Two Judgments, One Developing Boundary

The wider significance of Smith's case becomes clearer when it is considered alongside another judgment delivered only days later.

On 27 July 2026, the Full Federal Court dismissed Senator Pauline Hanson's appeal against a 2024 finding by Justice Angus Stewart that her social-media response to Senator Mehreen Faruqi was unlawful. The case concerned Hanson's response to comments Faruqi made following the death of Queen Elizabeth II.

Faruqi had described the Queen as the leader of a "racist empire built on stolen lives, land and wealth of colonised peoples." Hanson responded by referring to Faruqi's migration to Australia, her citizenship and her political career before telling her to "piss off back to Pakistan."

The cases arose under different statutes: Smith's claims were brought under the Anti-Discrimination Act 1977 (NSW); Hanson's under section 18C of the Racial Discrimination Act 1975 (Cth). They involved significantly different statements and should not be treated as morally interchangeable.

Faruqi's comments about the Queen were deliberately provocative, historically sweeping and, in my view, deeply disrespectful. Hanson was entitled to challenge them firmly. There is also a plausible reading of Hanson's response that reflects what many of her supporters understood her to mean: if Faruqi regarded Australia and its inherited institutions with such contempt, why had she chosen to live here, become a citizen and enter its Parliament? That context should not simply be ignored.

However, Hanson did not merely accuse Faruqi of ingratitude, hypocrisy or hostility towards Australia. She made Faruqi's country of birth part of the rebuke and told a Pakistani-born Australian citizen to return there.

A native-born Australian could have made precisely the same comments about the Queen but could not have been told to return to another country. That is why the courts regarded Hanson's statement as doing more than criticising Faruqi's political position. It also called her Australian belonging into question in a way that depended upon her national origin.

A Christian assessment should be capable of acknowledging both sides of that distinction. We may reject Faruqi's account of Australia and the Crown without treating her citizenship as conditional. Once someone has become an Australian citizen, they possess the same civic standing as those born here, including the freedom to say things that are offensive, reductionist or wrong.

Christian hospitality towards the stranger does not require agreement with every belief a migrant brings. Nor does Christian love demand silence when a person unjustly condemns the country that has received them. But our answer should address the claim rather than imply that ancestry or birthplace makes someone less entitled to participate in the national conversation. The legal comparison with Smith's case therefore has limits.

Kirralie Smith's underlying advocacy concerned a substantive and continuing policy question: whether male athletes should participate in female sporting categories. The courts themselves accepted that this was a genuine matter of public interest and that Smith was attempting to change institutional policy.

The Hanson dispute arose from a personal and political exchange between two senators. While it occurred within a broader debate about the monarchy, colonialism and Australian identity, Hanson's choice to invoke Faruqi's birthplace gave the response a racialised or nativist element that was not necessary to challenge Faruqi's argument.

Yet the two judgments still reveal a common and consequential legal structure. Both statutes apply objective tests, but the thresholds differ. In Smith, the question was whether the publications were capable of inciting hatred, serious contempt or severe ridicule. In Hanson, it was whether the tweet was reasonably likely to offend, insult, humiliate or intimidate because of race, colour or national or ethnic origin.

In neither case did subjective intention control the outcome. In both, the availability of the public-interest protection depended upon whether the communication was made reasonably and in good faith.

Both constitutional challenges also failed. The implied freedom of political communication did not operate as an individual right shielding either speaker from statutory liability. The result is that Australians may formally remain free to debate controversial questions while facing considerable uncertainty about how strongly, personally or directly those questions may be discussed.

The law does not merely ask whether a person intended hatred, threatened violence or encouraged unlawful conduct. It may also require a court to retrospectively assess whether the language was proportionate, sufficiently careful and appropriately connected to the claimed public purpose. That is where the relationship between the cases becomes significant.

The lesson should not be that Hanson's words and Smith's advocacy were ethically the same. They were not. The lesson is that Australian anti-discrimination law can reach the tone, method and foreseeable social effects of political communication, including communication about genuine matters of public concern. This creates a difficult balance. A healthy society should be able to protect citizens from targeted racial contempt without making criticism of immigration, national identity or multicultural policy legally perilous.

It should also be able to protect transgender people from genuine harassment without placing biological sex, women's rights and safeguarding beyond practical scrutiny.

Christians should reject racial contempt and affirm Mehreen Faruqi's equal dignity and belonging as an Australian. We should also be free to affirm that men and women are biologically real and that female sporting categories require meaningful boundaries.

These positions are not contradictory. They arise from the same moral conviction: every person possesses inherent dignity, but dignity does not make every belief true, every political claim wise or every institutional policy just. The more difficult question is whether the law can preserve that distinction. When legal protection depends upon uncertain assessments of tone, proportionality and likely audience response, citizens may avoid legitimate public advocacy not because their position is false, but because the personal risk of expressing it has become too great.

Smith's and Hanson's cases therefore point towards the same institutional challenge: how can the law restrain genuine vilification without turning offence, personal distress or judicial disagreement over rhetorical method into a mechanism for suppressing democratic debate?

Have We Lost the Capacity to Absorb Offence?

There is an old saying that offence is taken rather than given. Like most sayings, it contains a truth without containing the whole truth. Words can certainly be chosen to wound, humiliate or intimidate. But the hearer also possesses moral agency. Not every slight is an injury, not every insult establishes hatred, and not every experience of offence should require a legal remedy.

Traditional Australian banter was never simply unrestricted licence to abuse. At its best it rested on unwritten conditions: an existing relationship, a reciprocal exchange in which everyone could answer back, an underlying acceptance that remained even when the words were blunt, and a stop the moment someone was genuinely distressed rather than merely got at.

Australian research into multi-ethnic workplaces describes this kind of humour as "Janus faced": it can build trust and welcome people into a group, but it can equally mark people as outsiders and give racial hostility a ready exit once it is called out. The difference between the two is not always obvious from the outside, which is exactly why it matters who gets to decide.

Australian regulators already draw a version of this line. Safe Work Australia defines workplace bullying as repeated, unreasonable behaviour, and is explicit that disagreeing with someone, or being upset by a decision, is not bullying in itself. The eSafety Commissioner draws a similarly deliberate line for online abuse: its scheme is aimed at content intended to cause serious harm, and is explicitly not intended to regulate hurt feelings, reputational damage, strong opinions or banter.

The ‘serious harm’ threshold for adult cyber abuse investigations is set deliberately high so that it balances freedom of speech, or legitimate expressions of opinion, against the need to protect everyone’s ability to participate online. The Adult Cyber Abuse Scheme is not intended to regulate hurt feelings, purely reputational damage, bad online reviews, strong opinions or banter.

Both regulators, in other words, already assume what the old saying gets right: that offence and harm are not the same thing, and that a functioning society needs to be able to tell them apart rather than treating every complaint as proof of wrongdoing.

What has shifted is not that principle, but the readiness with which personal offence is now described in the language of harm, safety and rights. That shift brings real benefits where it exposes genuine bullying or harassment that used to go unaddressed. But it can also blur the difference between being wounded, being contradicted and being placed in actual danger.

Social media has changed the scale of the problem further. A blunt remark once exchanged at the pub disappeared within the hour. A post can now be preserved indefinitely, shared with thousands, stripped of its original context, and followed by organised denunciation. Institutions, including courts, employers, sporting bodies and universities, are increasingly asked to adjudicate not just threats and sustained harassment, but tone, sensitivity and likely emotional effect.

That can produce a more civil public square. It can also produce a public that is less practised at resolving offence for itself, because the habit of asking whether something is worth overlooking, or whether it can simply be answered, has less occasion to be exercised.

Neither Kirralie Smith's campaign nor Pauline Hanson's post was ordinary mateship banter between friends. Both were public statements about identifiable people, distributed through social media, inside politically charged debates. Neither case should be read as being merely about Australians losing their sense of humour.

The deeper connection is this: the legal system is increasingly being asked to decide not only what was said or intended, but how harsh political speech relates to its claimed public purpose and what social effects it is likely to produce. That is a legitimate inquiry where speech involves harassment, threats or genuine incitement. Smith and Hanson nevertheless raise a broader concern: courts are being required to supervise not only direct threats or deliberate incitement, but also the reasonableness, good faith and likely effects of forceful public speech.

A mature public culture asks something of both sides of the exchange: restraint in the speaker, and resilience in the hearer. The speaker should ask whether words are truthful, necessary and proportionate. The hearer should ask whether the offence can be overlooked, answered or forgiven without demanding punishment. Our institutions understandably concentrate on the speaker's responsibility. A resilient culture should also leave room for the hearer's agency: to answer, contextualise, forgive or overlook speech that is offensive but not unlawful.

What Should Change?

The NSW Parliament should review the transgender-vilification provisions and the remedies available under them.

That review should consider whether liability ought to require proof of intention, recklessness or actual incitement rather than theoretical capacity alone.

It should provide stronger protection for good-faith discussion of biological sex, women's rights, safeguarding and public policy.

It should also ensure that remedies are proportionate to the actual conduct, intention, reach and harm established in each case.

None of this requires abandoning protection against genuine hatred or harassment.

It requires drawing the line more carefully.

Sporting authorities also bear responsibility. Clear sex-based eligibility rules would reduce the likelihood that individual players become the focus of disputes created by institutional policy.

When governing bodies avoid difficult decisions, the conflict does not disappear. It is transferred downward: to female players, clubs, parents, advocates and eventually the courts. When institutions refuse to maintain clear sex-based categories, they effectively conscript individual female players and private citizens into a legal and social conflict the institutions themselves created.

The Question Before Australia

The Kirralie Smith judgment is about more than two football teams or a collection of social-media posts. It asks whether Australians remain free to challenge policies that redefine sex-based rights using real evidence from the public domain. It asks whether the law can protect people from genuine vilification without insulating contested ideas and institutional policies from effective scrutiny. It asks whether public debate will be governed by truth, proportion and mutual restraint, or by the fear that one wrong phrase may lead to years of litigation and financial ruin.

My support for Kirralie's ethical position does not rest on the belief that public advocates can never speak more carefully. It rests on something deeper.

Men and women are real. Our embodied sex is not an administrative inconvenience, and women's rights cannot survive if the category of woman no longer has a stable meaning.

At the same time, Christians carry an obligation to recognise the humanity of those with whom we profoundly disagree, even as we hold that line. That is not an invitation to dilute truth until it no longer offends, nor is it permission to speak truth without care for the person hearing it. It is a demanding obligation to preserve both.

Australia's law should seek the same balance: protecting people from genuine hatred while leaving sufficient room for citizens to speak plainly, challenge institutions and defend those whose interests are too easily traded away.

So I am left asking whether Kirralie Smith's case shows that balance has been struck, or only how far Australia still has to travel to find it. I am asking whether the law, as it now stands, forces citizens to choose between speaking plainly and staying safe. And I am asking whether a country can protect women's sport if citizens cannot explain, with reasonable confidence, how real-world examples may be used to defend sex-based categories without crossing into unlawful personal vilification.

Long before either court sat, Scripture joined truth and peace in the administration of justice. That charge still speaks to Christians entering every courtroom and every contested public square.

These are the things you shall do: Speak the truth to one another; render in your gates judgments that are true and make for peace. — Zechariah 8:16 (ESV)

Thank you for reading.

God bless,

Mark Neugebauer