Elon Musk’s X and Canadian activist Billboard Chris beating an attempt at censorship from Australia’s eSafety Commissioner is rightly being hailed as a significant development in freedom speech in Australia.
For those unfamiliar with the case, Chris Elston advocates for children to be protected from puberty blockers and cross-sex hormones, arguing that “no child is ever born in the wrong body.”
The primary form of his advocacy is going to places that receive lots of foot traffic, including universities and outdoor shopping malls and donning a sandwich board that reads: “Children cannot consent to puberty blockers.”
He proceeds to have conversations with people who approach him to ask more or argue, filming many of these interactions and posting them on his social media feeds, using the handle Billboard Chris.
As part of his advocacy, Elston published a post on X regarding transgender person Teddy Cook, who had been appointed by the World Health Organisation to a panel that would draft policy on transgender care.
Elston shared a Daily Mail article on Cook and wrote:
“This woman (yes, she’s female) is part of a panel of 20 ‘experts’ hired by the @WHO to draft their policy on caring for ‘trans people.’ People who belong in psychiatric wards are writing the guidelines for people who belong in psychiatric wards.”
Australia’s eSafety Commissioner issued both Elston and X, the platform on which he posted, with an order to remove the post on the basis that it was cyber-abuse material targeted at an Australian adult.
X complied to the extent that it geoblocked the post for Australian users, but challenged the legality of the decision in the Administrative Review Tribunal, as did Elston, with the help of Australia’s very own Human Rights Law Alliance, a legal practice led by the indefatigable John Steenhof dedicated solely to upholding the fundamental human rights of thought, conscience and belief.
Without wanting to go into the legal complexities, the two key elements that need to be satisfied in order for a post to be considered cyber-abuse material are that a reasonable person would conclude that the material was offensive, and that the person who posted it intended to cause serious harm to an Australian adult.
That the material could reasonably be taken to be offensive was a lay down misère; Elston intimated that Cook and all trans people should be in psych words.
It was the intention to cause serious harm, or lack thereof, that ultimately won the day, with Deputy President Damien O’Donovan saying that misgendering someone was not as big a crime as it has been made out to be.
“The position taken by the Commissioner was that the ordinary reasonable person would appreciate that to call a transgender man a woman would be to act to contrary to the transgender man’s wishes. So much can be accepted,” the Deputy President wrote. “However, it does not lay much of a foundation for concluding that Mr Elston intended to cause Mr Cook serious harm simply because he went against his wishes.”
So, not everything is hate speech? Who would have thought?
The Deputy President went on to rule that the post, in isolation, looked to be an attempt to wound Cook and cause her distress, perhaps serious distress. But taken in the broader context of Elston’s advocacy, it wasn’t.
“It is his universal practice to refer to people who identify as trans by pronouns and descriptors that correspond to their biological sex at birth. He does this to reflect his belief that doing otherwise involves an untrue statement…” the Deputy President wrote.
The Deputy President also noted that Elston did not tag Cook in the post, indicating further that he was not trying to target the individual.
The decision offers some key takeaways for those who might wade into the same type of public advocacy on contentious issues.
The first is that disagreement is not necessarily hateful, which should go without saying but is now backed by at least some legal consideration. The second is that consistency is important.
Had Elston not taken a principled and unchanging approach to puberty blockers and pronouns, and instead approached the matter on a case-by-case basis, his critique of Cook would have more likely been seen as intentionally targeted. If we are going to take a stand on these matters, we need to be consistent.
And finally, it is important to play the ball and not the man (or woman, in this case.)
Had Elston directed his hundreds of thousands of followers to Cook’s social media pages, encouraging a pile on, then he probably would have lost. His restraint in this respect was not only an act befitting the dignity of every human person, it probably won the day.
It is an important case that should never have needed to get this far.
