Tuesday, 6 October 2020
Tasmania: Anti-Discrimination Act 1998
'Women's sports, women's toilets and women's change rooms are designed for people of the female sex, and should remain that way.' These are the words that the Tasmanian Anti-Discrimination Commissioner deemed to be potentially prohibitive conduct under the Anti-Discrimination Act. How is it, in a democratic country, that it can be prohibited to say that women's sports and women's toilets are designed for female people? The Orwellian powers granted to unelected, antidiscrimination bureaucrats are being used as a weapon by aggressive activists to stop Australians speaking about the realities of biological sex.
The recent complaint against me for speaking about safety and fairness in women's sport has been dropped, only because I'm an elected parliamentarian who has the platform to speak up and fight back. But this backdown brings little comfort to the millions of Australians who will have no such protection when the thought police come for them. Tonight I want to put on record the way the complaint against me was initiated and manipulated to pressure me into silence. I have no doubt that these actions, directed against someone who isn't a senator, would have had the result of permanently preventing an Australian citizen from exercising their democratic right to speak freely and openly. While these unjust laws remain on the books and are wielded as a weapon by activists to shut down legitimate debate, free speech is absolutely under threat this in this country.
On 3 September I received an email stating that a complaint had been made about me and that I must attend a compulsory conciliation. The complaint, lodged on 18 July this year, said, 'Senator Claire Chandler had an article published on the 'Talking Point' page in The Mercury on 17 July 2020.' The complainant said: 'I despair that Senator Chandler's conduct'—that is, writing an article about free speech—'is being seen as acceptable by way of being published in a mainstream newspaper. I would, at the minimum, expect Senator Chandler to receive education, apologise and never engage in this kind of behaviour again.' These were not idle wishes by the complainant. The Anti-Discrimination Tribunal does indeed have the power to order apologies and retractions, and can compel a person to never engage in certain behaviour again. Had the complaint not been dropped, I would have been ordered by the tribunal to never again say that women's sport is designed for people of the female sex. Such powers are absolutely incompatible with free speech and with our democracy.
It was immediately clear, on receiving the direction to attend conciliation, that something very strange and legally questionable was occurring. In the complaint against me, dated 18 July, the complainant specifically said, 'Since publication of the opinion piece, I have sought clarification on Senator Chandler's views by contacting her office by telephone and email, but I have not heard back.' The complainant did indeed email me on Saturday 18 July, the same day he lodged the complaint. He said: 'I'm writing as one of your Tasmanian constituents, seeking clarification on your article in The Mercury yesterday. I wonder if you could clarify that you understand the difference between sex and gender, and whether you believe trans women are women?'
I was asked a direct question by a constituent and I responded honestly and politely. I do understand the difference between sex and gender. That's why I made the point in my article that women's sports, women's toilets and women's change rooms are designed for people of the female sex and should remain that way. These single-sex facilities exist for the privacy, safety and dignity of women and girls, and we should not be required to give up those rights in the name of inclusiveness.
In the decision letter I received from the commissioner, she said, 'I decided possible breaches are disclosed by the following conduct: Senator Chandler's letter to the complainant sent around July 2020.' Strangely, the commissioner's decision omits the exact date on which I responded to the complainant's email. The date I sent this email was Monday 20 July, two days after the complaint was submitted. How can the Anti-Discrimination Commissioner assert that a complaint made on 18 July refers to an email that wasn't sent until the 20th? Clearly, inconvenient facts have been ignored in order to compel me to attend conciliation. No complaint relating specifically to my email of 20 July has ever been provided to me. The only document to refer to this correspondence was the assessment decision of the commissioner. I was given no opportunity to respond to point this out and the other errors before I was directed to attend conciliation. When I was able to provide a detailed written response to the commissioner, it was ignored. To this day, she hasn't written back.
Given the complaints seemed to have no legal basis, I made a request to Equal Opportunity Tasmania that my lawyer be able attend conciliation. Permission was denied. Several days later, I was advised that the complainant had been granted permission for a support person to attend with him. The following week, Equal Opportunity Tasmania emailed me to complain about my public comments and threatened legal action against members of the public who found the complaint to be vexatious and had written to the commissioner asking she drop my case. The email said, 'Please see attached a sample of emails that the commissioner has received since your public statements in the media about your complaint. I note that legal action can be taken against any person who uses insulting language towards any person exercising any power under the Anti-Discrimination Act'.
Later that week, still with no acknowledgement of my response pointing out the lack of legal substance to the complaint, Equal Opportunity Tasmania sent me a preconciliation confidentiality agreement that I was instructed to sign. Not only did they want to compel me to attend conciliation for writing an article about free speech, they now wanted me to surrender my right to talk about how the commission itself was limiting free speech. I refused to sign the confidentiality agreement. Less than 24 hours before conciliation was due to take place, it was suddenly cancelled. Then 24 hours after that, something remarkably convenient for the commissioner happened: the complainant withdrew the complaint. I learned of this not from Equal Opportunity Tasmania but from the media.
Because the complaint has been withdrawn, the commissioner now never needs to acknowledge the complaint had no legal substance. Most troubling, we are left no clearer about what Tasmanians and Australians can say in defence of sex based rights or safety and fairness in women's sport without being hauled before the commission. Presumably, if the commissioner thought it appropriate to summon me to conciliation for saying that women's sports and women's change rooms were designed for females, she may take the same action against any other citizen for saying the same thing in the future.
It is one thing to be on the end of this absurdity as a senator. I was fortunate enough to have a platform to let the public know what was happening and let them know how free speech in defence of women's rights is being targeted. But this could easily happen to one of the millions of other Australian women who acknowledge the reality of biological sex and support women having access to female sports and female facilities. Completely out of the blue, any of these women could receive a legal direction to explain to a man they don't even know why they made comments about women's sex based rights. If they don't attend, they will be fined nearly $2,000. The commissioner refuses permission for you to have a lawyer at conciliation. You're provided with a preconciliation confidentiality agreement and told to sign it, with a strong implication that you have no other option. This process is highly stressful and intimidating for any private citizen targeted by Equal Opportunity Tasmania. You're on your own, you're out of pocket and you've had to ask your boss for time off work because you've been accused of engaging in prohibited conduct. You're up against the power of an anti-discrimination commission that seems determined to put you through the wringer for saying that women's sports and change rooms are for females. This whole process is designed to operate in secret, behind closed doors where you're guilty until proven innocent. It's unfair, it's undemocratic and it's an affront to freedom of speech.
I want to conclude tonight by reflecting on a comment made by the complainant. He suggested in his statement to the media late last week that the only reason he lodged a complaint was to force me to go to conciliation to enable 'an open and frank conversation'. Let me be absolutely clear: if you initiate legal action against a woman for expressing her views about women's rights, you don't want an open and frank conversation; you want to control what she says. My response is the same as my message to those who threatened and vilified JK Rowling for defending sex-based rights and to the Australian Labor Party, who smear Australian women who speak up, myself included, as transphobic. We will not be controlled and we will not be silenced.