Abstract
This article examines the current absence of legal regulation of gendered hate speech in Australia. Drawing on contemporary examples, the article compares hate speech directed towards women as women with other forms of hate speech, in particular racial hate speech, which is currently the subject of legal regulation in all Australian jurisdictions. The various laws regulating hate speech in Australia, civil and criminal, are discussed. Possible reasons for the failure to recognise gendered hate speech are canvassed and recommendations made for legislative change to recognise the harm it causes.
Highlights
In recent times, media coverage has been given to incidents involving what might be called ‘hate speech’ directed at women
There is a contrast between the federal racial vilification provisions, discussed above, which focus on public acts that might offend the target group, and state and territory provisions, which generally focus on the response the hate speech generates in the general public, namely the incitement of hatred, serious contempt or severe ridicule.[35]
The insult had dual aspects, one relating to race and one to gender, the case was treated as one of racial rather than gender vilification.[80]. Another explanation for the legal non-recognition of gendered hate speech may be that it often occurs in the private domain while the legal definition of hate speech generally requires a ‘public act’, which might be justified on the basis that hate speech must generate some harm above and beyond that created by an interaction between two individuals
Summary
Media coverage has been given to incidents involving what might be called ‘hate speech’ directed at women. The use of derogatory terms associated only with women, such as ‘cunt’ and ‘bitch’, was overlooked.[5] It seems that gendered epithets are dismissed as rowdy protests or robust criticism, or par for the course, rather than being recognised as sex discrimination or gender hatred This same ‘gender blindness’ is evident in the lack of legal recognition given to the harm caused by gendered hate speech. The ‘harm principle’, that is, the concept that only conduct that causes harm should be prohibited, underpins the common law.[6] While seemingly straightforward, the elasticity of the harm principle results in uncertainty as to its practical application in any particular factual context Questions such as whether conduct that causes non-physical harm (such as psychological or environmental harm) or conduct involving potential rather than actual harm should be prohibited are capable of different resolutions and there are ‘grey areas’ for application of the principle.[7]. I conclude by recommending that legislation should be amended in each Australian jurisdiction to include sex or gender as a ground of prohibited hate speech
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