The Australian classifications board made a “broadbrush dismissal” of over 500 submissions calling for a ban of the book Gender Queer by labelling those submissions as anti-LGBTQ+, a court has heard.
In July last year, the Classification Board rejected calls to restrict access to a memoir about gender identity that was the target of conservative campaigns to have it banned in the US, and found the content was appropriate for its intended audience.
Right-wing activist Bernard Gaynor had applied to the board in early 2023 to review the classification of the graphic novel-style memoir about gender identity by writer Maia Kobabe.
Complaints about the book – which details Kobabe’s experience coming out as non-binary – are focused on the cartoon images of sex scenes, one of which has been described by critics seeking a ban as “pornographic” and “paedophilic”.
When the Australian Classification Board upheld its original decision to classify the book as unrestricted with the consumer advice of “M – not recommended for readers under 15 years”, Gaynor appealed against the ruling to the federal court.
In a hearing on Monday, Bret Walker SC, acting for Gaynor, said the overwhelming majority of submissions to the board on the review of the decision had called for the publication to be restricted or refused classification. He argued the classification board had erred by not taking these submissions into account, by broadly labelling them as “anti-LGBTQIA+”.
Walker said there was a “deliberately broadbrush dismissal” of those submissions, many of which he said objected to what they saw as depicting a man having sex with a minor – referring to an image portraying Plato’s Symposium. Walker said many of those objections did not refer to the gender of the image’s subjects, just that it appeared to depict paedophilia.
Justice Ian Jackman said that while by his count, about 600 submissions from among 9,000 people had been considered to be anti-LGBTQ+ by the board, on closer examination Jackman said just 52 of these expressed anti-LGBTQ+ views – less than 1% of submissions received.
Walker said the board gave little weight to the submissions, and had failed to engage with them in its review decision.
In response, the barrister for the minister for communications and the classification board, Houda Younan SC, said the law did not require the board to accept submissions as part of the review of its classification decision and that the invitation of submissions did not require the decision-maker to then consider them.
However, Younan said the board did consider the public submissions and did not dismiss them on the basis of being anti-LGBTQ+ but because they did not assist the board in its statutory task of a classifications decision.
“We say that in this case, every submission was received and considered,” Younan said.
Submissions in the decision were labelled to give their tenor, she said. Submissions were given weight based on whether they contained evidence the writer had read Gender Queer and understood its content within the context of the publication.
Those that did not demonstrate an engagement with the publication were given little weight, she said.
Younan indicated the board had considered whether a submission noted the context of the image being of Plato’s Symposium, or was a criticism of the image on its own, removed of context.
She later identified 14 additional examples of explicitly anti-LGBTQ+ submissions beyond those initially identified by Jackman.
Among the orders sought, Gaynor is seeking to have the decision remitted back to the classifications board.
Jackman reserved his decision.
In the US, Gender Queer is one of the most challenged books in libraries. Kobabe told the ABC in May that the US push to ban the book had been frustrating and that the depiction of Plato’s Symposium had been included as it was one of the few gay-themed texts Kobabe had encountered in college.
“It stuck in my mind, because it was the only one.”
