Hurst v Star City Pty Ltd

REASONS FOR DECISION 1 Mr Paul Hurst claims that in October 2006, while dressed as a woman, he was refused entry to the Priscilla [Queen of the Desert] Bar located in Star City Casino. He claims that this refusal constitutes unlawful transgender discrimination in the area of services. The respondent Casino applies for Mr Hurst's complaint to be dismissed. Among other things, it contends that Mr Hurst is not a transgender person as that term is defined by the Anti-Discrimination Act 1977 and, accordingly, the alleged refusal of admission (which is denied) could not constitute unlawful transgender discrimination. 2 These reasons address the dismissal application. If it is refused, I will proceed to consider a separate application made by Mr Hurst to amend his complaint to include an allegation of discrimination on the ground of sex. A. Dismissal application 3 The Casino applies under s 102 of the Anti-Discrimination Act to have the whole of Mr Hurst's complaint dismissed on the basis that: (i) Mr Hurst is not a transgender person within the meaning of s 38M of the Anti-Discrimination Act (ii) the conduct alleged, if proved , would not disclose a contravention of the Anti-Discrimination Act (iii) the complaint is misconceived and /or taking Mr Hurst's evidence at its highest, is lacking in substance. 4 The power to dismiss a complaint summarily under s 102 of the Anti-Discrimination Act (formerly, s 111(1)) has been considered extensively by this Tribunal. A careful approach to the exercise of the power has been adopted, emphasising that it should be exercised with exceptional caution and only if the circumstances clearly warrant such action. (See Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16; Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73; Tannock v State of New South Wales [1999] NSWADT 73; Karekar v TAFE Commission of New South Wales [2000] NSWADT 187; Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221; Salama v Qantas Airways Ltd [2002] NSWADT 119; Razaghi v Director-General, NSW Department of Health & anor [2002] NSWADT 4; Harding v Vice Chancellor, University of NSW [2003] NSWADT 74; Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59; Razaghi v Director General, Department of Health & anor [2005] NSWADT 202; Han v NSW Department of Health [2006] NSWADT 113; Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13; Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179; Bassili v Star City Pty Ltd [2008] NSWADT 62 and Mohamed & ors v State of NSW (NSW Police Force ) [2009] NSWADT 51.) 5 In determining whether the complaint should be dismissed, in whole or in part, the evidence provided by Mr Hurst will be taken at its highest (see Prakash v Bobb Borg Enterprises Pty Ltd at [35]; Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT at [21]). Documents before the Tribunal 6 The documents before the Tribunal in this matter are the report of the President provided under section 94A(2) of the Anti-Discrimination Act, affidavits (2) sworn by Mr Hurst on 4 July 2008 and 10 November 2008, Points of Claim and Amended Points of Claim, filed on 22 July 2008 and 11 November 2008, respectively. 7 Both parties provided written submissions. Transgender discrimination 8 Section 38M of the Anti-Discrimination Act makes it unlawful for a person who provides (whether or not for payment) services, to discriminate against another person on transgender grounds: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services. 9 To succeed in his complaint Mr Hurst must establish that: At the relevant time, he was, or was thought to be, a transgender person as defined by s 38A of the Anti-Discrimination Act The Casino refused to provide him with services and/or provided services on discriminatory terms In either case, he was treated less favourably than a person who was not transgender, was or would have been treated in the same or similar circumstances, and One of the reasons for any less favourable treatment was because he was, or was thought to be, a transgender person. Definition of transgender 10 Section 38A of the Anti-Discrimination Act provides: 38A Interpretation A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person: (a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or (b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or (c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex, and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person. Does Mr Hurst satisfy the statutory definition of a transgender person? 11 The Casino argues that Mr Hurst's complaint must fail as his evidence, taken at its highest, could not support a finding that he is a transgender person, as defined by s 38A. At best, it contends, Mr Hurst's evidence indicates that he is a transvestite as that term is commonly understood, that is, someone who dresses in the clothes of the opposite sex. The Casino accepts that the definition of a transgender is not restricted to persons who have undergone or who wish to undergo medical or surgical treatment to reassign their gender: see for example Re Alex: Hormonal Treatment for Gender Identity Dysphoria [2004] FamCA 297 at [221]. 12 In support of the proposition that the terms 'transsexual' and 'transvestite', are not synonymous, the Casino relies on the following extract from the decision in Re Kevin: Validity of Marriage of Transsexual (2001) 28 Fam LR 158 at [15](affirmed on appeal): A transsexual is not the same as a homosexual. A homosexual is one who is attracted sexually to members of the same sex. Similarly a transsexual is not the same as a transvestite. A transvestite is someone who dresses in the clothes of the other sex. A transsexual might or might not be a homosexual. 13 The Casino also relies on the following passage from the judgement of Lockhart J (with Black CJ and Heerey J agreeing) in Secretary, Department of Social Security v SRA (1993) 118 ALR 467, 482-483: Transsexualism or gender dysphoria syndrome is a psychological condition which is recognised by the medical profession. … Transsexuals are frequently confused with transvestites, homosexuals or intersexuals (hermaphrodites and pseudo-hermaphrodites). A transvestite is generally understood to be a person who dresses in the clothes of the opposite sex, sometimes referred to as cross-dressing. Female impersonation entertainers, commonly referred to as drag artists, and prostitutes who wear clothing of the opposite sex are examples of transvestites. Transsexuals prefer to wear clothing worn by the new sex; but, in cross-dressing, the transsexual identifies himself or herself with the sex to which he or she believes he or she belongs. 14 The Casino submits that in amending the Anti-Discrimination Act to include transgender as a proscribed ground, Parliament made clear that it had not intended to extend protection to transvestites. In support, the Casino cites the following extract from the Minister's second reading speech introducing the Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996 (NSW): The term "transgender" in the legislation has therefore been used to refer to all transgender persons, regardless of whether they have undergone surgical intervention. This is considered necessary because the discriminatory conduct usually occurs as a reaction to a person's dress, behaviour and other characteristics being at variance with that person's original gender. Such discriminatory conduct should be unlawful whether or not there has been surgical intervention. This definition is not intended to cover persons who cross-dress or who have adopted the characteristics of the other sex, say, for example, a male person who from time to time wears makeup, or high heels, who has not chosen to live as a member of the other sex. ... (Hansard, 1 May 1996, page 643) 15 Mr Hurst asserts that he does satisfy the statutory definition. He points out that s 38A uses the term 'transgender' not 'transsexual' as the Casino's argument might suggest and that the former has a broader meaning than the later. He argues that in the context of Part 3A of the Anti-Discrimination Act the term 'transgender' includes a 'spectrum' of what is referred to in the area of psychiatry as 'gender identity disorders'. 16 In affidavits prepared for these proceedings, Mr Hurst claimed: His gay friends and some heterosexual friends know him as 'Anne Maree' He often dresses in female attire and frequently attends parties and events in female attire He has attended the Casino on a number of occasions dressed in female attire On the night the subject of the Complaint he was dressed in female attire, wearing a sequined mid-calf dress, feather boa, high heels, wig and make up. 17 Decision A review of the case law referred to by the parties and the literature discussed in them, reveals that there are no universally accepted definitions of the terms 'transgender', 'transsexual' or 'transvestite'. 18 The terms are defined by the Macquarie Dictionary to mean: Transgender : … a person whose gender identity is different from their physiological gender: a transgender man (emphasis added) Transsexual:.. 3. someone who has undergone a sex change operation. 4. someone who feels himself or herself, though physically of one sex, to be of the other sex in psychological disposition Transvestism: the abnormal desire to wear clothing typical of the opposite sex. 2. the act or state of so dressing. 19 Similar definitions are offered by the Oxford English Dictionary: Transgender: Of, relating to, or designating a person whose identity does not conform unambiguously to conventional notions of male or female gender, but combines or moves between these; transgendered. Transsexual: 1. Of or pertaining to transsexualism; having physical characteristics of one sex and psychological characteristics of the other. 2. Of or pertaining to both sexes. Also, intersexual. B. n. A transsexual person. Also, one whose sex has been changed by surgery. Transvestite: A person with an abnormal desire to wear the clothes of the opposite sex. 20 These definitions and those adopted by courts in different statutory contexts are of limited assistance as in this case it is the definition contained in Part 3A of the Act that must be applied. 21 To satisfy that definition Mr Hurst must establish that: (a) he identifies as a woman by living, or seeking to live, as a member of the opposite sex, or (b) he has identified as a member of the opposite sex by living as a member of the opposite sex, or (c) he is of indeterminate sex, and identifies as a member of a particular sex by living as a member of that sex. 22 For the purpose of the Casino's dismissal application, Mr Hurst need only show that there is some evidence which, if accepted, might establish that he satisfied one of these tests. 23 There is no evidence and nor is it suggested that Mr Hurst is a person of indeterminate sex and accordingly s 38A(c) has no application. Therefore the question posed is, 'Does Mr Hurst identify as a woman by 'living' or 'seeking to live' as a woman or, has he identified as a woman, by 'living' as a woman?' 24 In my view this question cannot be neatly disposed of as the Casino contends. It does not necessarily follow that because a person might be characterised as a 'transvestite', as that term is commonly understood, that they do not meet the statutory definition of 'transgender'. The terms in my view are not necessarily mutually exclusive. A person who might be labelled a 'transvestite' might also be living, or seeking to live, as a member of the opposite sex. If so, they would satisfy the statutory definition. Conversely, a person whose gender identity does not correspond to their physiological gender, but has taken no steps to seek to live as a member of the opposite sex, would not satisfy the statutory definition. Whether a person has been living, is living, or is seeking to live, as a member of the opposite sex is a question of fact. It involves complex issues of self and social perception and is further complicated by the inherent difficulties of codifying the distinguishing features of how men and women 'live'. 25 As a starting point, the following indicia might be useful in deciding whether a person is living or seeking to live as a member of the opposite sex: Whether the person presents to their family and/or partner as a member of the opposite sex Whether the person presents to the community, or part of the community, as a member of the opposite sex Whether the person is recognised by their family, friends, neighbours, employer and/or community as a member of the opposite sex Whether the person has undergone, is in the process of undergoing, or intends to undergo, gender reassignment treatment or surgery Whether the person identifies culturally and/or socially as a member of the opposite sex. 26 Applying these indicia, can it be said that Mr Hurst is, or has been living as a woman or is seeking to do so? There is no evidence that Mr Hurst presents to his family, friends, employer and/or neighbours as a woman. The only evidence about how he is perceived by others is that some friends know him by a female name. Little is known about his lifestyle other than that on occasion he dresses in female attire. There is no evidence about Mr Hurst's perception of his gender identity. 27 I accept the argument put for Mr Hurst that to meet the statutory definition he is not required to establish that he lives as a woman 'full-time'. He need only establish that he has taken some steps, however small, to seek to 'live' as a woman. The evidence, however, in my view, would not support a finding that he has been or is living as a woman on any basis or is seeking to do so. At its highest, it indicates that some of his friends know Mr Hurst, some of the time by a female name and that he dresses in female attire on occasion. It may be that Mr Hurst is in fact a transgender person but on the evidence before me he does not satisfy the statutory definition. Was Mr Hurst thought to be a transgender person? 28 The above finding is not fatal to Mr Hurst's complaint providing that there is some evidence, which, if accepted, would establish that the alleged perpetrator, in this case, the security officer who is alleged to have refused Mr Hurst entry to the Casino, thought that he was a transgender person. Section 38A defines a transgender person to include 'a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person'. 29 Before I deal with the evidence on this point, it is necessary to consider whether it is open to me to do so. 30 In the Summary of Complaint prepared by Deputy President Hennessey following the first case conference in these proceedings, the legal and factual issues were identified as including the question: Whether the security guard thought Mr Hurst was a transgender person as defined in s 38A (as distinct from a transvestite or merely a man dressed in woman's clothing) 31 In oral submissions, Counsel for Mr Hurst made passing mention to the application of this part of the definition. The focus of her submissions was the meaning of the phrase, 'living as a member of the opposite sex'. The written submissions barely touched on the application of s 38A. The Points of Claim did not mention the statutory definition and the Amended Points of Claim did not identify which part of the definition was relied on. 32 I have given careful thought to whether in these circumstances it is open to me to consider whether Mr Hurst can rely on the extended definition of a transgender person and decided that it can be for these reasons. First, the onus falls on the Casino to establish that the Complaint should be dismissed on one of the grounds set out in s 102; second, the issue was squarely raised in the Tribunal's summary of the Complaint; and third, the issue has been addressed, albeit briefly, in the Casino's submissions. 33 The only evidence about what the security officer thought, is Mr Hurst's claim that he said, 'You are known here as a man. You are not dressed appropriately and I will have to ask you to leave' and the following account given by the Casino's solicitors to the Anti-Discrimination Board (Tab 3 of the President's Report): Mr Hurst asked if the reason the Officer had requested he leave was "because I am a transvestite". The Officer said no and reiterated it was because Mr Hurst's attire was inappropriate. 34 This suggests that the officer accepted that Mr Hurst was a 'transvestite'. Without hearing his evidence, the Tribunal cannot know whether the officer thought Mr Hurst was living or seeking to live as a woman or merely dressed as a woman or, what he understood by the term 'transvestite'. 35 It is apparent that the security officer's evidence is critical. In my view it would be premature to dismiss the complaint summarily before that evidence has been provided and tested. No refusal of service 36 The Casino also argues that the Complaint must fail because the evidence does not support a finding that services were refused or were provided on discriminatory terms. 37 It contends that the evidence before the Tribunal indicates that it was Mr Hurst's companion, not Mr Hurst, who was refused entry to the Casino. Furthermore, it asserts that Mr Hurst was given the opportunity to return to the Casino wearing more appropriate attire and accordingly no issue of refusal of service arises. 38 Mr Hurst gives a different account. He claims he was refused entry. If accepted, this evidence could support a finding that he was refused services for the purposes of s 38M of the Anti-Discrimination Act. Discrimination 39 As the Casino points out, there is no direct evidence that Mr Hurst was refused entry 'on the grounds' of being transgender or, that he was treated less favourably than a person who was not transgender. 40 Whether Mr Hurst can establish that he was afforded less favourable treatment will turn on the formulation of a proper comparator. From the material filed on behalf of Mr Hurst, the comparator relied upon is unclear. This has made consideration of the parties' respective submissions difficult. Summary 41 In keeping with the approach that 'exceptional caution' should be exercised before a complaint is dismissed summarily, I have decided not to exercise my power to dismiss the Complaint as this stage. B. Amendment application 42 Mr Hurst seeks to amend his Complaint to include an allegation of unlawful sex discrimination in the area of services. Section 33 of the Anti-Discrimination Act makes it unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. 43 The proposed amendment is cast as a claim as 'direct discrimination' under s 24(1)(a) of the Anti-Discrimination Act. It provides: A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, … (1A) For the purposes of subsection (1) (a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex. 44 Paragraph 9 and 10 of the Amended Points of Claim are in the following terms: The security guard in ordering the applicant to leave and escorting him down the elevator and out of the casino in front of other patrons treated the applicant less favourably than he treated or would have treated a man who was not in female attire in the same circumstances or in circumstances not materially different. The security guard in ordering the applicant to leave and escorting him down the elevator and out of the casino in front of other patrons treated the applicant less favourably than he treated or would have treated a woman who was in the attire the applicant was wearing, or similar attire, in circumstances that were the same or not materially different. 45 As I understand it, Mr Hurst no longer relies on the so-called 'characteristic extension' contained in the test of 'sex discrimination': s 24(1A) of the Anti-Discrimination Act. Power to amend complaint 46 The Tribunal's power to amend a complaint is contained in s 103 of the Anti-Discrimination Act which provides: 103 Tribunal may amend complaint (1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. (2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President. (3) An amendment may be made subject to such conditions as the Tribunal thinks fit. 47 The operation of s 103 has been considered in Chand v Rail Corporation of New South Wales (EOD) [2007] NSWADTAP 54; Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer (EOD) [2008] NSWADTAP 24; West & ors v Commissioner of Police, NSW Police [2007] NSWADT 240; Bernard v Manly Lawn Tennis Club Ltd [2006] NSWADT 174; Perera v Commissioner of Corrective Services [2007] NSWADT 115. 48 It is common ground that the Tribunal has a wide discretion in deciding whether to amend a complaint. Decision 49 It falls to the person making an amendment application to satisfy the Tribunal that the circumstances warrant the exercise of this power. The primary argument put for the Casino is that leave should be refused as the proposed amendment is futile. 50 The Casino argues that paragraph [9] of the Points of Claim is misconceived and could not succeed. I agree. To succeed as an allegation of sex discrimination, Mr Hurst must establish that he was subjected to less favourable treatment than a woman, not as 'pleaded', a 'man dressed as a woman'. 51 The Casino also contends that the comparator relied on for the purpose of paragraph [10] is misconceived as a 'woman simpliciter' dressed as Mr Hurst was dressed could not be said to be a woman in the 'same or not materially different circumstances'. Furthermore it argues that there is simply no evidence that one of the reasons Mr Hurst was asked to leave was because he was a man. 52 The formulation of a comparator, necessary for any claim of direct discrimination, is not a straightforward task. It requires as a first step, 'the identification of all of the objective features which surround the actual or intended treatment' by the discriminator of the person alleging unlawful discrimination: Purvis v New South Wales (2003) 217 CLR 92, p 161. 53 In my view 'a woman dressed as a woman' is not a proper comparator, as it does not incorporate the objective features surrounding Mr Hurst's treatment. For that reason I accept the Casino's argument that the proposed amendment is futile. 54 Mr Hurst's application has not been assisted by the initial delay in making it and the re-characterisation of the proposed amendment. The proposed amendment broadly outlined in Mr Hurst's submissions filed on 31 October 2008 was significantly altered by the Amended Points of Claim, filed only days before the application was listed for hearing. By that stage Mr Hurst had been represented for some months. 55 For these reasons I have decided to refuse leave to amend the complaint. Orders

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