Gatecrashing the verdict: what everyone has wrong about Deeming v Pesutto

The inescapable fact is that, whether they admit it or not, anti-trans crusaders have Nazis on their side.

In a well-publicised decision, the Federal Court recently ruled that Victorian Liberal Party leader John Pesutto defamed controversial anti-trans MP Moira Deeming.

In now infamous scenes, anti-trans demonstrators held a rally on the steps of Parliament that was attended by a contingent of Nazis. As a defamation case, the legal issue turns on what was said after this event, by whom, when, and with what intent and effect. The judgement therefore focuses on interviews, press conferences, and leaked documents.

Deeming claimed that Pesutto defamed her by implying that she is associated with, sympathises with, and supports Nazis. In response, Pesutto insisted that he did not believe these points and that his words did not convey this meaning. Instead, he argued that the problem, as such, was her involvement in the organisation and promotion of an event with speakers with links to Nazis.

Pesutto presented several defences, including public interest and honest opinion. However, in a comprehensive 249-page judgement that cited dozens of cases, articles, and social media posts, Justice O’Callaghan rejected these defences, awarding Deeming $300,000 in compensatory damages.

Court cases revolve around a technical dispute of fact or question of interpretation, but in the real world third parties vest them with greater significance. Legally, the Court decided that Pesutto hurt Deeming’s reputation with vague utterances. However, Deeming’s supporters, such as former PM Tony Abbott, have spun the decision as a “vindication” of Deeming and, by extension, her anti-trans views.

The Court’s decision has already influenced how media outlets discuss the 2023 rally. While most coverage at the time stated that the National Socialist Network (NSN) attended the rally, news pieces since the ruling, including those from The Guardian, now describe the Nazis as having “gatecrashed” [sic] the event.

One can appreciate that editors are anxious about legal action but this is revisionism of an odious kind—the Nazi’s were explicit in their support of the event and the views of the speakers. New Zealand’s media watchdog ruled that it was fair to say that NSN supported the organisers and a former NSN member opened and closed a copy-cat anti-trans rally earlier this year.

For what Pesutto insinuated to be accurate, Deeming needed to have worked with individuals who identified themselves as Nazis or had invited the NSN to the rally. She did neither, and so his implication that she “associates with Nazis” was, the Court decided, careless and defamatory. However, a forensic investigation of what one man said on handful of occasions hardly proves that Deeming’s views are correct, justified, or reasonable.

Here, the fault lines emerge between what the judgement says as a matter of law and political spin. The Court’s decision that it is untrue to say that Deeming’ associates with or supports (self-identified) Nazis’ does not mean that Deeming’s views are, in substance, different to those held by Nazis.

On the steps of Parliament, the Nazis claimed that schools “teach sodomy” to children, a more assertive version of Deeming’s claim that Safe Schools, an LGBT inclusive anti-bullying resource for teachers, was “sleazy drivel” that taught porn to minors. The Nazis also displayed a banner vilifying Queer and trans people as paedophiles, a view comparable to her claim that the authors of the program (several of whom are gay) are “paedophile apologists”.

Deeming is a longtime opponent of story-telling events hosted by drag performers, which she describes as a “radical policy”. Last year, local government cancelled more than a dozen storytime events across Victoria due to threats from fascists and pickets attended by right-wing extremists and Nazis. It seems fair to say her comments contributed to a hostile milieu and that the parties share an antagonist attitude toward LGBT-inclusive children’s events.

NSN speakers at the rally also argued that Queer and trans people were “infiltrating” institutions and that they wanted to ensure “preservation” of White people. The decision uses similar language when it accepts Deeming’s status as an advocate for the “preservation” of so-called “sex-based rights” [sic], particularly concerning women’s change rooms and bathrooms which trans people are presumed to be “infiltrating”. In her inaugural speech, Deeming implied that trans women enter women-only spaces to sexually harass cis women.

Deeming also advocates against gender-affirming healthcare and has previously expressed “disappointment” about the ban on conversion therapy. Sexual orientation change efforts cause serious bodily and mental harm to its victims and risk the destruction of gender and sexual minorities. So, while Deeming couches her views in polite terms, their real-world effect aligns with the Nazis’ stated desire to “destroy” Queer and trans people.

This is all to say that an ordinary person familiar with both Deeming’s and neo-Nazi’s attitudes toward Queer and trans people could reasonably form the opinion that Deeming and various Nazis share similar views without implying any direct association or relationship. Indeed, many Queer and trans people formed such an opinion well before Pesutto weighed in (a fact not considered in the judgement).

Charitably, the narrow terms of reference of a defamation case do not permit a nuanced consideration of context. What was in question was the validity of Pesutto’s words on specific occasions, not of Deeming’s views. In this sense, the ruling itself is immaterial: what matters is how it is being (mis)interpreted.

In framing the outcome as a blanket “vindication” and by inserting distance between the parties after the fact (a la “gate crashed”), the media and political classes are either incompetent and participating in misinformation or malicious and engaging in disinformation. Either way, the dangers are twofold.

On the one hand, this deception creates an even more permissive environment for bigots to vilify trans people, a grim prospect given that trans people are still excluded from Federal vilification protections. On the other, it discourages discussion of the actual and well-evidenced links between anti-trans politics and Nazism.

The inescapable fact is that, whether they admit it or not, anti-trans crusaders have Nazis on their side.

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