Hurst v Star City Pty Ltd (No 2)

[2010] NSWADT 65

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 says that Mr Munro said to him words to the effect of, ‘You are known here as a man, you are not dressed appropriately and I’ll have to ask you to leave’. Mr Munro says that after some initial pleasantries he spoke to Mr Pitt saying, ‘Is there any way you can make your dress any longer because it is very revealing.’ Mr Munro said that although Mr Pitt tried to pull down his skirt, he was unsuccessful and Mr Munro then said to Mr Pitt, ‘Unfortunately due to the inappropriate nature of your clothing, I will have to ask you to leave as it may offend some people.’ Mr Munro said that Mr Pitt’s response was, ‘Is it because I am a transvestite?’ Mr Munro said he replied, ‘No, its because your clothing is inappropriate and doesn’t meet the dress code for entering into the casino.’ In assessing the evidence we have made findings about the credibility of each witness and have given weight to the documentary evidence recorded on the night including a police record of the incident and various records made by employees of the casino.

4 Mr Munro’s version of events is that he was rostered on the main gaming floor of the casino on 1 November when he responded to a radio transmission from another security officer, Ms Moroney, asking for an available security officer to assess the attire of a patron who was on the escalator at the south entrance. Ms Keohane, who was also patrolling the gaming floor, says that she heard the request over the radio and that Mr Munro told Ms Moroney that he would attend to it. Mr Munro says that he recognised Mr Hurst as he was a regular patron and he had spoken to him before. However, he had never seen him in female attire. Mr Munro then says he spoke to Mr Pitt about the length of his skirt. Ms Keohane observed the interaction but did not hear what was said.

5 There is CCTV footage of Mr Hurst and Mr Pitt ascending the escalator on their way to the gaming floor. We are satisfied that the footage depicts Mr Hurst and Mr Pitt. Mr Hurst is dressed in a black, knee length dress and a lighter, long-sleeved jacket. He is wearing a red wig, high heeled shoes and carrying a gold handbag. Mr Pitt is wearing a tight black mini skirt which comes to about half way between the top of his leg and his knees. He is also wearing a long sleeved jacket, dark coloured stockings, high heels and a dark wig.

6 The handwritten ATL (Asked to Leave) Log records the following:

21.20: 1x Female/male re dress.

7 This record indicates that at 9.20 pm a female/male was asked to leave because of ‘dress’.

8 An employee entered the following record in the Shift Summary for 1 November 2006 at 22.10:

Security Duty Manager Larry Sifner requested a review of two patrons entering the MGF (main gaming floor) via DS (delta south). The two patrons believed to be men dressed as women. The male with black hair was asked to leave for inappropriate dress by security officer Steven Munro. No CCTV of the event was captured as Munro did not request CCTV at this time. CCTV shows at 21.13 hours two males dressed as females enter MGF via South. Sifner attended the viewing room to view the footage. Sifner requested the footage be retained. (Words in brackets added.)

9 The Tribunal is not bound by the rules of evidence and despite being urged to do so, we are not persuaded that we should draw any inference from the fact that the casino did not call Ms Moroney or Mr Sifner to give evidence.

10 Both Mr Munro and Ms Moroney gave evidence that Mr Munro accompanied Mr Hurst and Mr Pitt down the escalator and showed them the sign relating to dress code. Mr Hurst agrees that Mr Munro escorted them down the escalator, but does not agree that Mr Munro pointed to the sign. According to Mr Hurst, the fact that they were escorted to the exit means that they were both being refused entry. That conclusion, it was said, is supported by the fact that Mr Munro did not expressly invite Mr Hurst to stay or give Mr Pitt any opportunity to change his clothes. Mr Hurst says that conduct suggests that the real reason they were refused entry was that they were dressed in women’s clothing and that the dress code issue was merely a pretext for excluding them.

11 Because Mr Hurst indicated that he was going to complain, Mr Munro met with his supervisor, Mr Hassan, shortly after the incident occurred. Following that conversation, at 23.24, Mr Hassan sent the following email to the Security Administration Manager, Ian Tomkins, regarding a ‘possible patron complaint’:

At approximately 21.13 hrs on Wednesday 1st November 2 transvestites entered via Delta South one of which was a regular who frequents the Casino in normal male attire. Tonight he was dressed in female clothing, however he was appropriately dressed. He was in the company of another transvestite who was wearing a brown jacket, red top extremely short mini skirt and black fishnet stockings with exposed suspenders. S/O Steve Munro (was Delta South Rover) and spoke to them when they entered the Casino floor. Munroe saw that this person was not suitable to remain in the Casino because the mini skirt was too short and revealing barely covering the buttocks and groin. Munro politely asked this person to leave and advised to change the skirt before returning to the Casino. The other transvestite became upset and obtained Steve’s name and promised to take the matter further, and both departed. I suspect that this is the same transvestite who has complained in the past, however bear in mind that it was the companion who was asked to leave. Footage of them entering was retained and dubbed to a Miscellaneous tape for you. I looked at footage and also believe that Munro made the correct decision in asking the transvestite to leave for inappropriate dress.

12 Mr Sifner recorded the incident in the Security Duty Manager’s Log:

S/O Munro ATL’d (Asked To Leave) 1 transvestite from DSR for inappropriate dress. Person was wearing extremely short skirt barely covering the groin and buttocks. Patron obtained Munro’s name and may forward a complaint. SDM Sifner and S/S Hassan viewed footage and advised Surveillance to retain footage for complaint purpose. Details of incident forwarded to Ian Tomkins. (Words in brackets added.)

13 Mr Hurst and Mr Pitt attended the Surry Hills police station after the incident. The Police Incident Report on 1 November 2006 records that Mr Hurst and Mr Pitt attend the police station dressed in ‘transgender attire’ and reported that they had attended the casino before dressed in ‘drag’. The report went on:

But on this occasion the P/R (person reporting) and the WIT (witness) were approached by the POI (person of interest). He has refused them both entry due to the fact that he knew the P/R as a male. Neither parties were intoxicated at the time . . Once refused entry to the LOC (location) they have returned to the car park and driven to Surry Hills P.S to report the incident.

The P/R believes this was discrimination and that the POI had no reason to refuse them entry. He wanted to report this incident so that he could pursue the matter further.

No further action required for report only. (Words in brackets added.)

14 Dress code. We accept the evidence from the casino employees that the dress code is enforced on the gaming floor. Attendance at the casino ranges from between 10,000 and 35,000 patrons on any given day. There are in the vicinity of 50 dress code refusals on any one day for violations including wearing thongs, singlets, ripped jeans and dirty clothes.

15 Pitt’s credibility. Mr Pitt says that he did not hear the initial conversation between Mr Munro and Mr Hurst because he was a few steps behind Mr Hurst at the time. Although he did not mention it in his statement, Mr Pitt agreed when giving evidence, that Mr Munro had a discussion with him about the length of his skirt. He agrees that he was wearing a mini skirt, stockings and suspenders. We have given very little weight to Mr Pitt’s evidence because: his statement was not written until nearly two years after the incident and is very similar to parts of Mr Hurst’s statements; he did not refer to the conversation with Mr Munro about the length of his skirt until he gave oral evidence and he admitted that he ‘blanked out’ after the interaction with Mr Munro.

16 Hurst’s credibility. Mr Hurst attached to his statement of 10 November 2008 a photograph of what he was wearing on 1 November. That photo depicts him in a red and black long sleeved dress, a red feather boa, blue gloves and pearls. This was not what the CCTV footage shows him as wearing on that night. Mr Hurst conceded that it was possible that he was wearing a black dress and a jacket, rather than the outfit in the photograph but says he included the photo to give ‘colour and flavour’ to his statement. This concession suggests that Mr Hurst is willing to embellish his evidence, in some respects, in order to support his complaint.

17 Mr Munro’s credibility. Mr Munro has been employed by the casino for about 9 years and is currently a senior security officer. His performance ratings for the relevant period ranged between ‘exceeds expectations’ and ‘outstanding’. In relation to customer service his supervisor’s comment was that Mr Munro is a ‘role model for other officers in the area of customer service’. We found him to be a credible witness. We accept Mr Munro’s evidence about the circumstances in which he approached Mr Hurst and Mr Pitt and most of the substance of the conversation he had with them. We also accept that this is the first time Mr Munro had ever asked a man dressed as a woman to leave the casino in the 9 years he has been employed there.

18 Findings. While we accept the majority of Mr Munro’s version of events, we also find that when he first approached Mr Hurst he made a comment that he had only ever ‘known’ Mr Hurst as a man, meaning that he had only ever previously seen him dressed as a man. While Mr Munro denies making that comment, we are satisfied that he did say words to that effect for several reasons:

a) while Mr Hurst is prone to embellishing his evidence and has forgotten the detail about the conversation involving the length of Mr Pitt’s skirt, he has consistently alleged that Mr Munro made that comment and reported it to police shortly after the incident;

b) it is consistent with the fact that Mr Munro recognised Mr Hurst when he approached him because he was a regular patron but that he had never seen him dressed as a woman before; and

c) it is not surprising that Mr Munro has forgotten he made that comment because his focus was on assessing Mr Pitt’s attire.

19 Mr Munro asked Mr Pitt (not Mr Hurst) to leave the casino because he formed the view that the length of his skirt did not comply with the casino’s dress code. That finding is made on the following basis:

a) the CCTV footage shows that Mr Pitt was wearing a mini-skirt that night and Mr Hurst wearing a dress down to his knees;

b) the only reason Mr Munro approached Mr Hurst and Mr Pitt was because he received a message over the radio asking someone to check Mr Pitt’s attire for compliance with the dress code;

c) Mr Munro was a credible witness and he gave evidence that he asked Mr Pitt to leave because of the length of his skirt;

d) the documentary and oral evidence of the casino employees is entirely consistent with that finding;

e) Mr Pitt recalled in cross-examination that he had a conversation with Mr Munro about the length of his skirt;

f) there were several other men dressed as women on the gaming floor that night;

g) Mr Munro had never previously asked a man dressed as a woman to leave the casino in the 9 years he has been employed there;

h) Mr Hurst is inclined to embellish his evidence - he misinterpreted Mr Munro’s comment as a requirement that he leave the casino when that was not what Mr Munro said;

i) because Mr Hurst and Mr Pitt were together that night, and because Mr Hurst took offence at Mr Munro’s comment about only being known as a man, Mr Hurst chose to leave as well.

Conclusion

20 The casino provides services relating to entertainment and recreation: AD Act, s 4. If Mr Munro had asked Mr Hurst to leave, that would constitute the refusal of a service. Based on our findings, Mr Hurst was not refused a service or provided with a service on unfavourable terms. Even if Mr Munro did indicate that both Mr Pitt and Mr Hurst should leave, the reason for indicating that they should do so was that he formed the view that Mr Pitt’s attire did not comply with the dress code. That conduct does not constitute discrimination on the ground of transgender status in relation to Mr Hurst. Having come to that conclusion it is not necessary for us to decide whether Mr Hurst is a transgender person as defined in the AD Act.

Orders

The complaint is not substantiated.