The Supreme Court of New South Wales has ruled on appeal that a woman convicted of ‘vilification’ for referring to two trans-identified male athletes as men must pay a collective $95,000 to them, in addition to court costs, despite documented evidence of one player having injured at least one female athlete on the pitch.
The decision, handed down today, argues that by referring to the trans-identified males by their sex constitutes “serious contempt” and “severe ridicule,” and orders women’s rights campaigner Kirralie Smith and the publication Binary Australia to publish a statement provided by the court, to remain as a pinned and featured post on her social media for a period of three months.
In November 2023, Justin “Riley” Dennis and Nicholas “Stephanie” Blanch lodged criminal complaints against Smith for raising public awareness of their inclusion in women’s football. Smith, a spokeswoman with Binary Australia, a campaign group dedicated to advocating for single-sex sports in Australia, had been raising public awareness of their inclusion in women’s sports after learning of injuries sustained by female players.
The legal complaint accused Smith and Binary Australia of discrimination for a series of social media posts, made from January to March 2023, identifying the male players by using information and photographs that were obtained from public websites and posts made by Australian football associations.
For referring to them as men in social media posts, Smith has been ordered to hand over $55,000 to Blanch and another $40,000 to Dennis within the next 28 days.
In addition to punitive damages, Smith and Binary Australia have been ordered to publish a public statement “on all social media pages and websites over which they have control,” stating that they violated the Non-Discrimination Act. The statement, according to the ruling, must be “designated as a feature post,” “pinned to the top of the Defendants’ profiles,” and “published prominently on the front page” of the Binary Australia website.
Labeled as Annexure A in court documents, the statement forces Smith and Binary Australia to publicly announce that, by opposing male athletes in women’s sports, they have “contravened section 38S of the Anti-Discrimination Act,” and have “incited hatreds towards, serious contempt for, or severe ridicule of” the two trans-identified male players in posts they made identifying them as men. If the announcement is not made public, Smith risks a $40,000 penalty.
Annexure A also declares that the court has imposed a state of censorship on them, having ordered them “not to repeat or continue the offending behavior” of “inciting hated” towards trans-identified males. The ruling appears to include referring to any trans-identified males as “men.”
Justice Belinda Rigg’s ruling demands that the statement “should remain visible for a period of three months,” and that the purpose of the public statement is “not to stigmatise or shame” Smith, contrary to its implications. Justice Rigg argued that by ordering the statement, she intends for others who are critical of the situation to see the announcement of guilt. “It being posted for a period that will expose its contents to a meaningful number of [Smith’s] followers, including those who recall the impugned posts and the responses thereto, or who responded themselves, is capable of further redressing damage.”
Legal counsel for Smith and Binary Australia may appeal the Supreme Court ruling within 28 days, after which the case would be heard by the High Court of Australia.
The initial ruling was handed down in August last year and detailed specific comments made by Smith on social media as constituting “unlawful vilification.” Proceedings were initially held in the NSW Civil and Administrative Tribunal (“NCAT”), with complaints lodged by the two men having been referred there via the Anti-Discrimination Board, before reaching the Supreme Court on appeal.
In 2023, Football New South Wales (NSW) introduced a Gender Diversity Policy. The guidance states, “FNSW remains committed to supporting the inclusion of Transgender, Non-Binary and Gender Diverse people in Football. FNSW intends that Gender Diverse Players who are registered to play Football in the gender competition which best suits the Player’s Gender Identity shall be supported to play in a safe and inclusive environment.”
In response, Smith launched a public campaign citing concerns over player safety and fairness. Between March 29 and March 31, 2023, Smith made several posts on social media naming Dennis and Blanch.
Statements by Smith found by the court to be discriminatory against Blanch, a trans-identified male who has played in a women’s football team since 2016, included quotes from a January 2023 article she wrote for Binary. In the article, Smith pointed out that Blanch was male and that he had been given a participation award for playing football against women in the Wingham Football Club.
“Men of mid coast NSW [New South Wales], can you get in touch with me please? I need your help. There is a bloke playing on the women’s team in Wingham and many are upset about it. The federation is refusing to listen,” Smith posted to X on January 19, 2023.
“Wingham Football Club on the Mid North Coast of NSW published these photos on their Facebook page in December 2022. The bloke in a frock was receiving an award for playing in the women’s division,” Smith’s article read.
“The bloke in a frock can play either in the men’s competition or a mixed competition, there is absolutely no need for him to play in a women’s division,” Smith added. “No one is saying he can’t play. It is simply a matter of fairness, safety, and dignity. He is male and does not belong in a female division. Women and girls deserve to have the option of a female-only competition.”
In addition to the “unlawful vilification” verdict found on the basis of referring to Blanch as male, an Apprehended Violence Order (AVO) filed against Smith by the “bloke in a frock” was granted on appeal – resulting in Smith being ordered to pay his court costs in that matter.
An AVO is similar to the American equivalent of a restraining order, and sets conditions against an individual for the “protection” of another.
Blanch first applied for his AVO against Smith on March 22, 2023, but his complaint was rejected in January of 2024 after the Civil and Administrative Tribunal of New South Wales found that the scope of the request was out of their jurisdiction. But Blanch appealed the following month, arguing that Smith’s “conduct” had caused him to fear for his safety, and on March 21 of last year, Magistrate Greenwood granted him permission to pursue the matter in court.
The AVO further cites several instances wherein Smith referred to Blanch simply as a “bloke in a frock,” and a “man,” between January and February 2023. The court, in its judgement, stated that Smith – and by extension Binary Australia – “sought to evoke fear in the reader regarding the fact that [Blanch], who is described as a man / male / bloke is playing in a women’s team (and transgender women playing in women’s sport generally).”
Evidence provided in the judgement to support this statement included Smith’s comments: “How can girls, women, and families feel safe when they are not even permitted to question the presence of a man in their space or on the field?” and “Why should parents be put in the terrible situation of having to deal with an adult man in their daughter’s bathroom?”
In late March 2023, police served Smith with an AVO initiated by Dennis, despite the two living over 200 miles apart and having never met in person. The police ultimately withdrew the AVO on the first day of the scheduled court hearing. Prior to the AVO service, Smith’s public Facebook page, which she had operated since 2016 and had accumulated over 47,000 followers, was removed following a request from Australia’s eSafety Commissioner, Julie Inman Grant.
In Dennis’ case, social media posts made by Smith between March 29 and March 31, 2023 were found to be discriminatory.
“I have cried a lot today,” Smith wrote on Facebook on March 27, 2023. “Last night I was contacted by people in Sydney. It is alleged that two female soccer players were hospitalised over the weekend after being forced to play against a male appropriating womanhood. Trying to get hold of the video. Football Australia have received more than 2000 complaints about the men in teams such as Wingham FC and some Sydney first grade teams,” she said, referencing both Blanch and Dennis.
“No one is excluding trans,” Smith continued. “We simply want female sex-based services and spaces. The trans can play according to biology or on a mixed or trans team.”
In her statements deemed as vilification by the Supreme Court, Smith had also highlighted that Dennis was the top goal-scorer in the NSW Women’s League One First Grade, criticized Football NSW for failing to safeguard female athletes, and advocated for sports categories based strictly on biological sex, stating, “Football NSW fail to safeguard women and girls for the sake of men’s feelings!”
Smith urged the public to voice their concerns, prompting Football NSW to receive thousands of complaints and submissions (estimated between 2,000 and 12,000). Following the public backlash, Football NSW removed Dennis’s name from public online rosters and match statistics, replacing it with the pseudonym “Inter Player.”
The sporting authority protected Dennis’ identity despite him having injured at least one female athlete on the field.
Despite ongoing controversy, Dennis remained active on the pitch for Inter Lions FC. On May 21, 2023, during a match against St. George FC at Majors Bay Reserve, Dennis was involved in a hard tackle along the sideline that launched a smaller female opponent toward a perimeter metal fence. The injured St. George player received treatment from the team’s physiotherapist during halftime and attempted to return for the second half, but could only play for roughly eight minutes before exiting the game due to her injuries.
After reports of the injury cause by Dennis made headlines, Dennis left the Inter Lions team. Instead, he joined women’s team The Flying Bats. The football club’s official website states it is “the biggest LGBTQIA+ women’s and non-binary football club in the world,” having been founded in 1985.
The Flying Bats, a football club for “self-identified women and non-binary people,” has drawn significant criticism due to its policies, and because there are at least five male players known to be playing on their Premier League women’s football team.
During the 2024 season of the North West Sydney Football Women’s Premier Competition, The Flying Bats won all 17 games and scored 76 goals while only a total of 8 points were scored against them. The heightened scrutiny has led officials to increase security and implement prohibitions against filming at matches.
In another measure intended to silence critics of male athletes participating in women’s sports, football club presidents have been threatened with substantial fines for speaking out about the issue. In March 2024, CEO of North West Sydney Football, Matthew Geracitano, and Football New South Wales CEO John Tsatsimas convened a meeting of all club presidents under their jurisdiction.
During the meeting, attendees were told that any team to boycott participation by forfeiting matches against football clubs with trans-identified male players would result in “disciplinary action”.
Additionally, Geracitano sent an email to all club presidents citing policies put forward by eSafety Commissioner Julie Inman Grant in the Online Safety Act 2021. The email states that possible violations of the legislation include “publishing private or identifying information about an individual with malicious intent to cause serious harm,” and cautions that “individuals responsible for posting seriously harmful material” can be fined up to $111,000.
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