Alternative Law Journal
KAREN GURNEY and EITHNE MILLS[#]
At the heart of adverse discrimination lies difference. Many people only feel comfortable with others who appear exactly the same as themselves. Inject an element of differentiation and such people may feel entitled to act in prejudicial and even cruel ways.
Hon Michael Kirby AC CMG[*]
A small number of our population express transgender identities, and an even smaller number exhibit ambiguous sex characteristics indicative of transsexualism or some other intersex condition. Recent research demonstrates the vulnerability of members of these minority groups to the many acts of discrimination, and worse, perpetrated against them in Australian society today. A staggering 83.3 per cent say that they modify their daily activities because of a real fear of prejudice or discrimination, while 50 per cent report being sacked after gender reassignment and 38 per cent consider they are subject to reportable levels of discrimination at least once a week. With the notable exception of the federal government, all Australian jurisdictions now have legislation in place that attempt to deal with issues of discrimination against these marginalised groups.
In Victoria, the Equal Opportunity Act 1995 (‘the Act’) has provided statutory protection from discrimination on the ground of ‘gender identity’ since its amendment in 2000. Section 4(1) of the Act defines gender identity to include:
(a) the identification on a bona fide basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such) —
(i) by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or
(ii) by living, or seeking to live, as a member of the other sex; or
(b) the identification on a bona fide basis by a person of indeterminate sex as a member of a particular sex (whether or not the person is recognised as such) —
(i) by assuming characteristics of that sex, whether by means of medical intervention, style of dressing or otherwise; or
(ii) by living, or seeking to live, as a member
of that sex.
As a consequence, the Act not only provides additional protection for those who are intersexed — including those who have undergone the sex affirmation process for transsexualism and are therefore legally members of their affirmed sex — it also protects, for the first time, those who retain both their male sex phenotype and their male legal sex (but who assume some of the characteristics of, or live as, a female). The latter group is comprised of a few individuals who are in the process of correcting their sex phenotype for transsexualism, as well as a far greater number who are simply transgendered and have no need to correct their sex. It was this tension between ‘sex’ and ‘gender’ implicit in transgendered reality that was at the heart of a recent exemption application lodged with the Anti-Discrimination List of the Victorian Civil and Administrative Tribunal by Hanover Welfare Services.
In Hanover Welfare Services Ltd (Anti Discrimination Exemption)  VCAT 640 (‘Hanover’), the Tribunal was asked to consider an application for exemption from provisions of the Act sufficient to allow the applicant, Hanover, to limit to women only employment and accommodation at its women’s transitional and crisis housing facilities. Specific to this discussion, the exemption also sought to allow the Applicant to ‘refuse to provide accommodation (in the nominated facilities) to a person who identifies as a male-to-female transsexual or transgender person unless and until that person provides to the Applicant a medical certificate certifying that that person had gender reassignment surgery’.
The authorised transcript records that Hanover is a corporation engaged in not-for-profit provision of support and accommodation services to people experiencing or at imminent risk of homelessness. A number of its services are tailored to particular age groups, and a number are designed to help women specifically. The housing services that are the subject of the application have single rooms and common facilities, and are designed solely for use by women who have experienced domestic violence, trauma or sexual violence at the hands of men. These female clients are already marginalised and, because of past experiences, are vulnerable and do not feel safe in the company of men.
The record shows that the Applicant provided the Tribunal with material alleging that the incident leading to the application was one where a male who identified as a male-female transsexual was accommodated in a women’s only service. That person behaved inappropriately and walked naked within the accommodation facility displaying male genitalia, and the women accommodated in the facility who witnessed this suffered great trauma and distress as a result of their past experiences and fear.
The Tribunal granted the requested exemptions. In support of its decision, it especially considered the exception provisions in ss 17, 19 and 82 of the Act, saying these show that the scheme of the Act is to reduce disadvantage or identify some other compelling interest such as the interests of privacy and decency for those of a particular sex or with another attribute. The Tribunal also pointed to the strong public interest in allowing the discrimination to occur ‘so that vulnerable and homeless women may access accommodation and services which, if those services were accessible by men, because of their past experiences and fears those women would be unable to access’.
That the legal sex of a person following sex affirmation surgery is ordinarily their reassigned sex is now well settled in Australia under the common law. The relevant state and territory statutes have also dealt with the issue by allowing the register of births to be corrected to show a person’s contemporaneous sex. They are then regarded as a member of that affirmed sex for all purposes of the law so far as the powers of the Parliament permit, and are able to have all legal documentation re-issued to reflect the fact. It follows that additional protection from discrimination is available to anyone who has completed the sex affirmation process, including on the ground of their legal sex.
For the transgendered citizen, however, there is generally no end-point to the sex-gender tension because in most jurisdictions, absent sex affirmation surgery, they are unable to gain legal status as a member of the sex with which they identify. They have to rely instead on the limited palliative effect of anti-discrimination laws that vary considerably between jurisdictions: the worst undoubtedly being Western Australia where there is no protection without surgery and the best, Queensland, where there is protection on the ground of gender identity from both discrimination and vilification.
The extraordinary extent to which the sex of persons occupying ladies’ bathrooms has raised tensions around the world can be easily gauged from a simple internet search of the terms ‘transgender’, ‘toilet’ and ‘bathroom’. It has been discussed ad nauseum, for example, in the US where many universities have installed ‘transgender bathrooms’ in misguided attempts to deal with discrimination on campus. There is even a dedicated website to help transgendered people in America find somewhere they can attend to basic bodily functions without encountering major harassment in the process.
The position in the UK has been little better according to Stephen Whittle, a Professor of Equalities Law and a man of transsexual background. He reported that a survey conducted in 2000 found ‘that 1 in 2 transsexual people are expected (by their supervising doctor) to commence their compulsory real life experience dressed in their new gender role, but then (are expected by their employer) to go into their former toilet facilities or to use the ‘disabled’ toilet.’ He also reported ‘that 1 in 4 individuals who had been transitioned for some time were still expected to not use the gender appropriate toilet’.
Fortunately for transgendered Australians, community awareness and the relevant laws proscribing discrimination are now more advanced than those generally found overseas and their experiences are usually not as dire as elsewhere. Even so, many Australians today remain decidedly uncomfortable with the prospect that they or their female family, friends, staff or clients may find themselves sharing female facilities with female-identified individuals who possess a male sex phenotype. In the event fear becomes reality, their reactions vary from distress or embarrassment through angry rejection, and even violence. Yet, as Whittle points out, ‘[e]ven if we acknowledge that single-sex toilets (for example) are for ensuring privacy, it might well be argued that the person who would feel most vulnerable in such spaces is not … [those others] … but the transsexual person themselves’.
Certainly, people undergoing treatment for transsexualism and bona fide transgenders will ordinarily be discrete and respectful of the feelings of members of the other sex, and their presence in those facilities would not ordinarily justify concern. They will take every possible opportunity open to them to identify and be accepted as a member of the opposite sex. Something, however, went terribly wrong at the Hanover facility. Unfortunately detailed particulars of the incident, especially the psychological demeanour of the female-identifying resident at the time of the alleged breach of decency, have not been provided by the Tribunal in its published reasons and hence remain a matter of conjecture and concern. It may have been voyeurism. It may have been a case where the person was not bona fide in the cross-gender identification. However, the activity publicly engaged in may also have been symptomatic of an already abused and confused mind in need of specialist assistance and professional counsel. The questions have to be asked, ‘Where is she now? Has she become another trans-suicide statistic?’
It is clear that the Tribunal had the necessary power to grant the exemption, allowing the Applicant to refuse to provide accommodation to ‘a person who identifies as a male-to-female transsexual or transgender person unless and until that person provides to the Applicant a medical certificate certifying that that person has had gender reassignment surgery’. The Act, in fact, is replete with exemptions and exceptions, so much so that that they account for more than 50 per cent of all the sections in Parts 1 to 6; parts that ostensibly deal with protecting vulnerable persons from discrimination. There are fifty-four such provisions denying the rights of persons who have sought refuge in the Act because they face adversity because of their difference.
It appears, given the paucity of information provided in the published decision, that the most specific exemption that could have applied to accommodation in the Hanover case is contained in s 55. This section allows accommodation to be refused to a person of one sex in a hostel or similar institution established wholly or mainly for the welfare of persons of the opposite sex. Curiously, this exception was not mentioned in the Tribunal’s decision and the only legislative basis cited for the accommodation exemption is the general provision in s 82 relating to welfare measures and special needs that provides:
(1) Nothing in Part 3 applies to anything done in relation to the provision to people with a particular attribute of special services, benefits or facilities that are designed —
(a) to meet the special needs of those people; or
(b) to prevent or reduce a disadvantage suffered by those people in relation to their education, accommodation, training or welfare.
The terms of exemption ultimately granted by the Tribunal not only allow discrimination in accommodation, in relation to all female-identifying transgenders and those with transsexualism who have not undergone sex affirmation surgery (irrespective of their bona fides), but also allow exclusion of those with a transsexual background — and for all legal purposes are themselves women — in the very likely event they are unable to produce a medical certificate attesting to the fact of their affirmation surgery at a time of personal crisis. A question of practical concern for both the Tribunal and Hanover is how they will respond if a person exhibiting both female and male characteristics seeks accommodation and, as is commonly the case, identifies themselves to Hanover personnel as simply a woman and not, in the Tribunal’s terms, either ‘a male-to-female transsexual or transgender person.’ Will they call the gender police to investigate and how will they deal with a transgender female-to-male in their midst?
The problems with the exemption process established by the Act and employed at the Tribunal are patently manifold: a situation that no doubt reflects its options are limited to granting or refusing an application and that the Act is silent on how an application should be managed. At least on its face, the result is the classic schoolteacher approach of punishing the class for the actions of just one child. All those against whom the discrimination is made lawful are consequently disadvantaged, not by reason of their own actions, but because of the actions of one other. In the Hanover matter, irrespective of their phenotypic sex, the great majority of those potentially excluded under this exemption have already suffered severe and potentially life-threatening domestic violence and abuse crises similar to all others who are accepted into the facility. Under this exemption, they may then also experience the additional trauma occasioned by the rejection of their present or former gender identity. With respect to the Tribunal this does seem, in the words of Michael Kirby, to be ‘prejudicial even cruel’.
To be fair to the Tribunal, it was largely constrained by the decidedly one-sided nature of the process provided in the Act for determining exemption applications. There is ordinarily no contradictor at the hearing, but this is because no-one other than the Applicant and the Equal Opportunity Commission has prior notice of it. The normal function of forensic argument in pointing out difficulties in, and necessary qualifications to, the competing propositions advanced by adversaries could not be fulfilled. The great advantages of adversarial debate were not available to the Tribunal. ‘Although certainly a case is not decided per incuriam merely because it is argued on one side only … the absence of a contrary argument will sometimes make it easier to establish a per incuriam exception, and in any case a judgment in undefended proceedings or a decision on an uncontested issue tends to have less authority than one given after argument on both sides.’
Unlike the case in its many other jurisdictions, within the context of exemption applications in the Anti-Discrimination List there is a perceived lack of procedural fairness at VCAT for those who might be adversely affected by a decision. There is not only no process whereby notice of forthcoming exemption hearing applications are publicly advertised, there is also no register of potential amici curiae who might be contacted to appear and inform the court on particular issues. Thus, while s 60 of the Victorian Civil and Administrative Tribunal Act 1998 does provide for the joinder and the rights of interveners in exemption applications, it is sterilised by the total lack of notice and the inability for potentially affected parties to be heard in cases where significant breaches to the human rights of vulnerable parties are being given the Tribunal’s imprimatur.
The position is only slightly ameliorated by the statement in s 83(5) of the Act that an exemption may be revoked on the application of a person whose interests are affected by it — while there is an ability to seek de facto review conditionally after the fact for a person disaffected by a particular exemption decision, there is no ability to be heard at first instance. The effect of all this is that the Tribunal’s process appears very much at odds with the requirement inherent in s 24(1) of the Charter of Human Rights and Responsibilities Act 2006, that a civil proceeding should be ‘decided by a competent, independent and impartial court or tribunal after a fair and public hearing’.
Finally, the Act encourages the pre-emptive exemption process (a blanket ‘solution’) at the expense of a reasonable defence (a specific solution). The authors argue that Hanover could have lawfully excluded the offending person from its premises, providing its actions were reasonable having regard to all the circumstances, without a prior exemption from the Act. Section 82 of the Act, the welfare and special needs section used by the Tribunal to justify its decision to allow Hanover to discriminate in respect to the provision of accommodation at its hostel, is actually a defence to a complaint of discrimination as are the other exceptions cited by the tribunal in support of its decision. Hanover had evidence of both the offending behaviour and the phenotypic, hence the legal sex of the person involved in the incident that led to its exemption application.
To attract the defence, the over-riding consideration must be the reasonableness of the action taken in the circumstances and it is clear from the authorities that:
(i) The person aggrieved bears the onus of establishing that the condition or requirement was not reasonable in the circumstances;
(ii) The test of reasonableness is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the condition or requirement, on the other; and
(iii) The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. The question is not whether the decision to impose the requirement or condition was correct, but whether it has been shown not to be objectively reasonable having regard to the circumstances of the case.
If a complaint against Hanover had ensued and progressed to a hearing, the Tribunal would have been required to weigh all relevant factors. These would have included the reasons advanced in favour of the requirement or condition, the nature and effect of the requirement or condition, the financial burden on the alleged discriminator of accommodating the needs of the aggrieved person and the availability of alternative methods of achieving the alleged discriminator’s objectives without recourse to the requirement or condition. The fact that there may have been a reasonable alternative, which might have accommodated the interests of the aggrieved person, does not of itself establish that a requirement to leave the premises was unreasonable.
The primary function of the Tribunal in its Anti-Discrimination jurisdiction is to protect the vulnerable against acts of discrimination under an Act that has among its objectives the promotion of everyone’s right to equality of opportunity and, as far as possible, the elimination of discrimination. In Hanover, the Tribunal determined to grant an exemption to render the proposed discrimination lawful, but the bigger question is, ‘Is it also just?’
The very essence of discrimination is less favourable treatment of an individual or group based on their personal characteristics. It includes the withholding of, or limiting access to, opportunities and benefits freely available to other members of society. Discrimination, by its nature, imposes burdens and disadvantages on those against whom it is directed. Exemptions under anti-discrimination statutes are therefore generally directed at achieving a beneficial outcome for a person or group that has historically suffered disadvantage vis-à-vis the appropriate comparator, and usually reflect international treaty obligations.
Transgendered people, and those affected by transsexualism or some other variation in sexual formation, have figured very prominently in discrimination statistics in proportion to their numbers. In the first few years of the millennium, Australians with a transsexual background or other intersex condition have finally achieved legal status as members of their contemporaneous sex for all purposes under both the common law and statute. They consequently now enjoy a level of recognition and protection under the law not yet available to those who, because they are transgendered or have not completed the process of sex affirmation, identify as belonging to one sex while retaining the unambiguous sex phenotype of the other. For members of this latter group, who are sometimes even strikingly different from societal ‘norms’ and so are often stigmatised for it, their sole source of legislated protection from ridicule, discrimination and even vilification is the relevant anti-discrimination Act. They all deserve better than to have their hard-won rights abrogated without the chance to be heard.
The conundrum facing VCAT was how justice might be done in circumstances where a decision in favour of one vulnerable party inevitably exposed other parties equally, or even more vulnerable, to discriminatory actions made lawful by its decision. There is little doubt that the Tribunal correctly applied the law, but the manner in which the decision was reached has done nothing to reassure those whose rights have been dispossessed that it was either appropriate or just. Parliament, the Equal Opportunity and Human Rights Commission, and the Tribunal must now find a better way.
[#] KAREN GURNEY is human rights advocate at Fitzroy Legal Service.
EITHNE MILLS teaches law at Deakin University.
© 2007 Karen Gurney and Eithne Mills
[*] Hon Michael Kirby AC CMG, ‘Genetic Testing and Social Management of Threats of Discrimination’, (1998) Le Courier, Risks and Responsibilities Issue, UNESCO, May 1998 http://www.lawfoundation.net.au/ljf/app/&id=1F296F223AC9AF9BCA2571A7001C3B21 at 2 November 2007.
 ‘National Transgender Needs Assessment’, School of Sociology, University of New South Wales (2004) 29, in With respect: A strategy for reducing homophobic harassment in Victoria, Joint Working Group of the Victorian Attorney-General’s and Health Minister’s Advisory Committees on Gay, Lesbian, Bisexual, Transgender and Intersex (GLBTI) Issues (2007).
 Note, however, that protection from discrimination in Western Australia is on the ground of ‘gender history’ and therefore limited to those who have undergone sex affirmation surgery.
 Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000, No 52 of 2000.
 Protection post-affirmation surgery was already available under the ‘sex’ attribute: M v A and U  QADT 8; and under the impairment attribute: Menzies v Waycott  VCAT 13.
 Although there is a tendency to conflate the terms, transsexualism and transgenderism are not the same. The person with transsexualism knows they are a member of the sex opposite that assigned to them at birth and takes all steps to correct their sex phenotype so it accords with the sex of their brain. A transgender person simply lives, or seeks to live, as though they were a member of the opposite sex without altering their sex phenotype. For a discussion, see Milton Diamond, Sex and Gender are Different (2002) http://www.hawaii.edu/PCSS/online_artcls/intersex/sexual_I_G_web.html at 2 November 2007.
 This is a distillation of the list of ‘specified conduct’ detailed in the Order in Hanover Welfare Services Ltd (Anti Discrimination Exemption)  VCAT 640.
  VCAT 640, –.
 Ibid .
 Section 17 allows an employer to limit employment to people of one sex if it is a genuine occupational requirement. Section 19 allows an employer engaged in welfare services to limit employment to people with a particular attribute. Section 82 is a broad provision that allows discrimination in the provision of special services, benefits or facilities designed to meet the needs of people with a particular attribute, or prevent or reduce a disadvantage suffered by them in relation to education, accommodation, training or welfare.
  VCAT 640 –.
 For a recent discussion of those few occasions when a person is denied legal status in their contemporaneous sex see Karen Gurney, ‘Bad policy, bad law: The derogation of human rights for people with transsexualism since the “justice” statement’, (2006) 31(1) Alternative Law Journal 36.
 Re Kevin (validity of marriage of transsexual)  FamCA 1074, ; The Attorney-General for the Commonwealth and “Kevin and Jennifer” and Human Rights and Equal Opportunity Commission  FamCA 94, .
 For example, the Births, Deaths and Marriages Registration Act 1996 (Vic), s 30A(1) provides that an unmarried person, over the age of 18 years, whose birth is registered in Victoria and has undergone sex affirmation surgery, may apply to the Registrar for alteration to the record of the person’s sex in the birth registration.
 The exception, at least in theory, is the Sex Reassignment Act 1988 (SA) which was the very first such legislation proclaimed in Australia. Section 3 defines a reassignment procedure to mean a medical or a surgical procedure to alter the genitals. This recognises the practical difficulties associated with constructive male affirmation surgeries (metoidioplasty and phalloplasty). In practice, it seems the minimum requirement is at least a radical hysterectomy, also fitting with the Re Kevin requirement that the person is no longer able to function as a member of their former sex.
 The fatal extent of the prejudice directed against transgenders, even in supposedly great democracies such as the US, can be gauged from the ‘Remembering Our Dead’ website that chronicles the fate of some of those who died because of their difference: http://www.gender.org/remember/about/core.html at 2 November 2007.
 See, eg, the Women’s Rights Employment Law Blog maintained by New York law firm Tuckner, Sipser, Weinstock & Sipser at http://womensrightsny.com/blog/2007/05/07/bathroom/ at 2 November 2007.
 http://safe2pee.org at 2 November 2007.
 Stephen Whittle, Employment Discrimination and Transsexual People (2000) 10, published online at http://www.pfc.org.uk/files/Employment_Discrimination_and_Transsexual_People.pdf at 2 November 2007.
 Transgenders and those undergoing treatment for transsexualism are at an elevated risk of suicidal ideation and attempts. For example, in a study examining the relation between sexual orientation and suicidality, 73 transgender respondents were compared to heterosexual females (n = 1,083) and males (n = 1,077), psychosocially matched females (n = 73) and males (n = 73), and homosexual females (n = 256) and males (n = 356). Significantly more (p < .05) transgender respondents reported suicide ideation and attempts than any group except homosexual females. Sexual orientation did not differentiate transgender ideators or attempters from non-ideators or non-attempters. Attempters were more likely than non-attempters to report psychotherapy and psychiatric medications currently and previously as well as difficulties with both alcohol and drugs (attempters and ideators) or alcohol only (attempters): Robin Mathy, ‘Transgender Identity and Suicidality in a Nonclinical Sample: Sexual Orientation, Psychiatric History, and Compulsive Behaviours’ (2002) 14(4) Journal of Psychology and Human Sexuality, 47, 47–65.
 Miliangos v George Frank (Textiles) Ltd  AC 443 at 478, per Lord Simon of Glaisedale, in CSR Limited v Eddy  HCA 64 (21 October 2005) para 14.
 Authors’ emphasis.
 Catholic Education Office v Clarke  FCAFC 197; State of Victoria v Schou  VSCA 71, at , per Phillips JA (with whom Buchanan JA agreed).
 For example, art 4 of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) recognises that, even if women are given legal (de jure) equality, this does not automatically guarantee they will be treated equally (de facto equality). To accelerate women’s actual equality in society and the workplace, States are permitted to use special remedial measures for as long as inequalities continue to exist. The Convention thus reaches beyond the narrow concept of formal equality and sets its goals as equality of opportunity and equality of outcome. Positive measures are both lawful and necessary to achieve these goals.