Hurst v Star City Pty Ltd (No 2)

CITATION:	Hurst v Star City Pty Ltd (No 2) [2010] NSWADT 65
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Paul Hurst REPSONDENT Star City Pty Ltd
FILE NUMBER:	081040
HEARING DATES:	12 & 13 October 2009
SUBMISSIONS CLOSED:	13 October 2009
DATE OF DECISION:	9 March 2010
BEFORE:	Hennessy N - Magistrate (Deputy President); Schneeweiss J - Non-Judicial Member ; Hayes E - Non-Judicial Member
CATCHWORDS:	Transgender discrimination, refusal of service.
LEGISLATION CITED:	Anti-Discrimination Act 1977
REPRESENTATION:	APPLICANT M Tibbey, counsel RESPONDENT K Eastman, counsel
ORDERS:	The complaint is dismissed.

REASONS FOR DECISION

Introduction

1 Mr Hurst alleges that Star City Pty Ltd (the casino) discriminated against him on the ground of his transgender status in breach of the Anti-Discrimination Act 1977 (AD Act). Mr Hurst is a regular patron of the casino. On 1 November 2006 he and his companion, Mr Pitt, went to the casino dressed in women’s clothing. They said it was their intention to go to the ‘Priscilla Bar’ which is attached to the Lyric Theatre where the musical, Priscilla Queen of the Desert was playing. However, Mr Hurst and Mr Pitt went first to the gaming floor. Mr Hurst says that a security guard, Mr Munroe, approached him and said, ‘You are known here as a man, you are not dressed appropriately and I’ll have to ask you to leave.’ Mr Munroe says that he only asked Mr Pitt to leave and that the reason was that the skirt he was wearing did not comply with the dress code because it was too short. Mr Pitt has not made a complaint of discrimination.

Issues

2 Mr Hurst has characterised his complaint as the refusal of a service on the ground that he is, or is thought to be, a transgender person. Alternatively, Mr Hurst says that he was refused a service on the ground of a characteristic generally appertaining to a transgender person, that is that they may not appear to be of the sex that they are dressed as. In order to substantiate this complaint, Mr Hurst needs to prove that:

a) the casino, through Mr Munro, refused to provide him with a service or provided him with a service on unfavourable terms: AD Act ) s 38M;

b) that the treatment was less favourable than the Casino provided or would have provided to a person who was not a transgender person or who was not thought to be a transgender person; s38B(1)(a) (‘the differential treatment test’);

c) that at least one of the reasons for that treatment was:

(i) that Mr Hurst is a transgender person; or

(ii) that Mr Hurst was thought to be a transgender person; or

(ii) a characteristic that appertains generally to transgender persons, namely that they may not appear to be of the sex that they are dressed as: s 4A, s 38B(1), s 38B(2) (‘the causation test’).

Factual findings

3 The main difference between Mr Hurst’s and Mr Munro’s versions of events is that Mr Hurst…