So What That You’re Offended?

See you in court: not the best place to win hearts & minds. pic by Lee J Haywood

Anti-discrimination laws are there to protect the disadvantaged. However, proposed changes to Commonwealth laws were going to expand their reach to include protection for anyone that was “offended”. Laws that protect us from simply being offended can cause more harm then good. They most certainly are not a vehicle for tolerance.

Common sense prevailed, with this proposed change being dropped after over 3000 submissions were made to a Senate Inquiry.

It is easy for a shock jock to offend, and in some states, particularly New South Wales, it is easy to hold them to account under that State’s anti-discrimination laws. Indeed the content on the stirrer’s pages will offend some people. That can be a good thing as these pages contribute to the debates of the day.

Some activists have used this legislation to repeatedly slap public figures into line, but what does this achieve in the broader context of acceptance, tolerance, and living with each other?

If we demand tolerance of the intolerant, by being intolerant ourselves we are just as bad as them. As hard as it is, sometimes, we should resist the temptation to use a legal smack-down. We may in fact be ingraining prejudice by having, or being at least being thought to have, a glass jaw.

Activism by its very nature is often adversarial. This means we are going to be targeting our detractors. We may insult them simply by unpacking their ridiculous arguments and turning them back on these purveyors of hate. Where a key individual is involved, they may be the subject of protests and placards, and even have effigies paraded around.

These are the tools that sometimes help bring an issue to light, by attracting the attention of mainstream media or the broader community.

If GLBTI activism was just about a simple concept of winning or losing a point, or a clear concept of right or wrong, then the legal system may play a role, smashing a detractor in a tribunal where a quasi-judicial figure can make a definitive order. However, it is not. It is about a social movement towards acceptance – but even the most passionate would concede that acceptance can never be won from each and every citizen.

When laws are designed to make sure our gay, lesbian, bi and trans brothers and sisters are not passed over for a job, or when renting their next home, and must be held as equals in the community, there is a strong argument in favour of acting with an abundance of caution when using those laws to be the aggressor, rather than to level the playing field.

Social change is about grabbing the hearts and minds of the majority, not everyone. Some people will never like us, and there are some people that we will never like. Just because someone says something that offends me, should I run off to court and claim that I was “vilified”?

In recent months Cory Bernardi, two members of the Katter Australia Party, and even Bob himself have felt what it is like to be on the wrong side of a community debate.

This has been dealt with exquisitely by media commentators of all flavours, taking up the ridiculous position to the person concerned and their party leader. Not a courtroom in sight, but casualties a plenty for all concerned.

Sure, there may be a cause for action by a tribunal, but the power of the collective community rebuking them is a far better indicator of where we are on social change than anything a tribunal can deliver.

Our community has the right to not be on the receiving end of hate speech, or language that encourages violence. But if we extend that to what we don’t want to hear, or what merely offends us, then how can we prosecute a message of tolerance, without offending someone else?

If a law is to protect us from being offended, then those same laws would apply to us, to prevent us from offending someone else, for example the powerful Christian lobbyists. Such a law would be more like censorship, and less like free speech, which of course is not a right in Australia. If Jim Wallace fired off Anti-discrimination complaints every time someone took a shot at him, would he look admirable, or silly? I say the latter.

When we are in the business of changing hearts and minds, we are of necessity in the business of offending someone. What one group thinks is right, another thinks is wrong. Success will be measured when fewer people are offended by us, as they evolve from their intolerant views, not because a tribunal declares a claimant to be right.

About the author

Miles has worked as an advocate and mediator for most of his life. His previous career was focussed on employment and discrimination cases. He now is a journalist and writer with a keen interest in LGBTI affairs and national politics. He plays on Twitter under @mileshef.