O'KEEFE v SAPPHO'S Party Inc - [2009] SAEOT 50

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
O'KEEFE v SAPPHO'S PARTY INC
[2009] SAEOT 50
Judgment of His Honour Judge Barrett, Member Ms H Jasinski and Member Mr D Shetliffe
24 April 2009
DISCRIMINATION LAW
STATE PROVISIONS - SOUTH AUSTRALIA - SEXUAL DISCRIMINATION
The defendants held a party/gathering for lesbians raised female and excluded the complainant on the ground that she was a transsexual lesbian born and partly raised male. The gathering was advertised by a flyer with limited distribution which said that the gathering was by invitation only. Prospective attendees had to respond to the flyer to receive an invitation. Was the gathering private and not covered by the Act or did the defendant deny the complainant goods and services as contemplated by s 39(1) of the Equal Opportunity Act? Held: by majority, the gathering was private and not covered by the Act.
Equal Opportunity Act 1984; Sexual Reassignment Act 1988; Acts Interpretation Act (SA) 1915; Race Relations Act (UK) 1968, referred to.
Applin v Race Relations Board [1974] 2 All ER 73, discussed.
IW v City of Perth (1996) 191 CLR 1; Charter & Ors v Race Relations Board [1973] 1 All ER 512, considered.

O'KEEFE v SAPPHO'S PARTY INC
[2009] SAEOT 50

The respondent is an incorporated Association formed by several women for the purpose of organising a party in January 2006. The venue was to be in the Adelaide Hills. The women are lesbians who wished to keep the party private. They wished to restrict attendees to lesbian feminists raised female.
The complainant is a male to female transsexual lesbian. She was born male in England in 1955, but from childhood she saw herself as female. She changed her name from her male birth name to her present name when she was 15. She underwent gender reassignment surgery in London when she was 21. Although married twice to men she has been in a lesbian relationship with a woman since 1993. In November 1998 she contracted a marriage in England to her partner Katrina Fox, using her male birth certificate. In so doing she contracted a legal marriage to Ms Fox. The couple migrated to Australian in February 2001. They live in Sydney. A flyer for the party to be held by the respondent was handed out at a meeting of lesbians in Sydney attended by Ms Fox in November 2005. Ms Fox showed the flyer to the complainant. The couple describe themselves as being long term activists in gender politics. The complainant emailed the respondent on the 9 December 2005, disclosing sufficient information of her background to show that she was born male and was partly raised as a male. She asked to book tickets to the party for her and her spouse. On 17 December the respondent emailed the complainant saying that attendance was restricted to lesbians raised female from birth, and that in the circumstances it would not be appropriate for her to attend (Exhibit C15). On 11 December 2005 the complainant faxed a complaint to the Commissioner of Equal Opportunity asking her to intervene to prevent “these illegal acts” (Exhibit R19). The Commissioner tried unsuccessfully to conciliate the matter. On 15 December 2006 the Commissioner referred the complaint to the Equal Opportunity Tribunal pursuant to s 98(5) of the Equal Opportunity Act 1984.
During the course of the hearing the Tribunal received evidence from the complainant and Ms Fox and from three witnesses from the respondent – Ms McCaig, Ms Morgan and Ms Redgold.
Matters For Determination
There was no dispute that the respondent declined the complainant’s application to attend the party by reason of her not being a lesbian raised female from birth. She was excluded, or discriminated against, by reason of her transsexuality. The question is whether that exclusion or discrimination was proscribed by the Equal Opportunity Act, and if so, are there any exemptions? Several issues arise.
Issue 1
Did the respondent unlawfully discriminate against the complainant by offering goods or services to which the Act applies (s 39(1)(a)(b)) and by refusing to supply those goods or services (s 39(1)(c)) by reason of her sexuality? This issue may be cast more specifically thus: was the party a private one, and if so, was it outside the reach of the Equal Opportunity Act as contended for by the respondent, or was it a public function governed by the Act as contended for by the complainant?
Issue 2
If the respondent discriminated against the complainant in a manner proscribed by the Act, were its actions nevertheless lawful by reason of an exemption under s 47, being actions designed to permit measures intended to achieve equality?
Issue 3
If the respondent discriminated against the complainant by refusing goods and services contemplated by the Act, was the discrimination truly based on her sexuality as a transsexual? In law, is not the complainant in fact male, not having obtained a certificate of reassignment as a female pursuant to the Sexual Reassignment Act 1988?
First Issue Discussed
Several questions arise under this issue. First, does the Act apply to private acts as well as public ones? Does the Act operate to regulate what most people would regard as private behaviour? The complainant submits that it does (see addresses T335-337, further (written) submissions of complainant paragraphs 6-16 inclusive). The complainant submits that the Act has been quite selective and specific about exempting private behaviour from its purview. It has done so with respect to employment within a private household (see s 34(1), 56(1), 71(1) and 85F(1)) but nowhere else. The purpose or object of the Act is to reduce discrimination upon nominated grounds. Section 22 of the Acts Interpretation Act 1915 (SA) operates to require preference to be given to a legislative construction that promotes the purposes of the Act. In legislation which is beneficial or remedial, a generous or liberal construction rather than a literal or technical one is preferred (IW v City of Perth (1996) 191 CLR 1 at [12] per Brennan and McHugh JJ and [27] per Toohey J).
The respondent resists that interpretation. It refers to the words which describe the actions which must not be carried out in a discriminatory fashion. Section 39(1) provides that goods and services may not be refused. Goods are not defined in the Act but services include “entertainment, recreation or refreshment” (s 5(1)(e) under “services”).
Authorities Discussed
In the United Kingdom the House of Lords has had occasion to consider cases which have raised similar issues. The cases were in successive years. It is convenient to refer to the later case first.
Applin v Race Relations Board [1974] 2 All ER 73 concerned a couple who, without fee, cared for children referred to them by a local authority. The children they cared for included coloured children. Two individuals sought to prevent the couple caring for coloured children. The question for the House of Lords was whether the attempt by the individuals to prevent the couple so doing was a breach of the Race Relations Act 1968. Section 2 of the Act provided:
(1)It shall be unlawful for any person concerned with the provision to the public or a section of the public (whether on payment or otherwise) of any goods, facilities or services to discriminate against any person seeking to obtain or use those goods, facilities or services by refusing or deliberately omitting to provide him with any of them or to provide him with goods, services or facilities of the like quality, in the like manner and on the like terms in and on which the former normally makes them available to other members of the public.
(2)The following are examples of the facilities and services mentioned in subsection (1) above, that is to say – access to and use of any place which members of the public are permitted to enter; accommodation in a hotel, boarding house or other similar establishment; facilities by way of banking or insurance or for grants, loans, credit or finance; facilities for education, instruction or training; facilities for entertainment, recreational refreshments; facilities for transport or travel; the services of any business, profession or trade or local or other public authority.
The question was whether, in caring for the children in their home without fee, the couple were “concerned with the provision to … a section of the public … goods, facilities or services …”.
By a majority their Lordships were of the view that even though the couple might be seen as providing goods, facilities and services, within their home, the Act would not regard the members of the household itself as a “section of the public”. The private household was beyond the reach of the Act. (See Lord Reid at page 76) What made their household different, and brought it within the reach of the Act, was the public nature of the service they offered the children. The children were referred to them by a public authority. They might care for as many as fifty children each year. Their Lordships noted that the Act did not lay down a line of separation between the public and private sphere and that the facts of the case made it difficult to tell. In fact, Lord Wilberforce dissented. His Lordship dissented essentially on the basis that while the service fulfilled by the local authority was undoubtedly a public one, the position was different with the couple. They could choose whom to accept into their home from those referred by the local authority. They were volunteers. His Lordship regarded that ability to choose as bringing to an end the public nature of the service. The other four members of the bench took a different view. All, however, undertook the task of examining the private and public characteristics of the situation to determine which characteristic predominated.
The facts of the earlier case decided by the House of Lords are closer to those of the present case.
In Charter & Ors v Race Relations Board [1973] 1 All ER 512 there was also a single dissentient among the five members of the House of Lords. The facts were that the East Ham Conservative Club had, by the casting vote of its chairman, excluded an applicant for membership on the ground of his colour. The issue was whether the club provided facilities for a “section of the public”. Like the later case of Applin, s 2 of the Race Relations Act was under consideration. Here too, the public and private characteristics of the club were examined. Lord Reid, in the majority, expressed his views thus:
There is no public element where a personally selected group of people meet in private premises and the club which they constitute does not provide facilities or services to the public or any section of the public. So s 2 does not apply.
But a clear dividing line does emerge if entry to a club is no more than a formality. This may be because the club rules do not provide for any true selection or because in practice the rules are disregarded. There are, or at least have been, clubs which are in fact no more difficult to enter than a restaurant. There may be some delay, and there may be entry money and a subscription but that makes no difference. In fact the club services and facilities are provided to any one of the public who wishes to come in, provided that he does not have such obvious disqualification as might cause the manager of say a good restaurant, to exclude him, and it would make no difference if entry were confined to a particular section of the public – Conservatives or Graduates or any other.
In this case the majority held that the rules of entry were applied bona fide. The committee did consider, for example, whether an applicant was a Conservative in good standing. That being so, the club was a private one, and, as such, the Act did not apply to it. This meant that even racial discrimination was permitted in what was regarded as the private sphere.
In dissent Lord Morris of Borth-y-Gest found differently. He expressed himself in these terms:
… It seems to me that the whole policy of the Acts gives guidance as to the meaning of the phrase “the public or a section of the public”. On the one hand, there is the public at “large”: and every ordinary member of the public is included. On the other hand, there are groups of the public which may or may not have been formed by some process of selection or election or elimination but which are groups which members of the public may seek to join. What Parliament has as a matter of policy provided is that, subject to certain defined exceptions, that type of discrimination which is made unlawful is just as unlawful where groups of the public are concerned as it is when members of the public at large are concerned. (see page 522).
Further His Lordship said, in reference to the decision of the Court of Appeal from which this appeal was brought:
In agreement with Lord Denning MR, Megaw and Stephenson LJJ, I can see no logical reason why the members of a club for whom there is the provision of facilities are not a section of the public. Where there is private hospitality there is not a situation where a member of the public can “seek to obtain or use” the facilities provided by the host. There may, as Stephenson LJ pointed out, be some clubs which are so constituted that admission is by invitation only. A member of the public would not be entitled to seek to obtain the facilities of such a club. It is otherwise in the present case. There will be male Conservatives in East Ham who will be applicants for membership of the East Ham South Conservative Club and who as such will be fully entitled to “seek to obtain” the facilities which are provided. As between such applicants there must not be discrimination on the grounds of colour, race or ethnic or national origins or there may be selection or election or discrimination in many other ways. (See page 523).
While His Lordship came to a different conclusion from his brethren, he conceded that a club could be regarded as private, and beyond the reach of the Act, if it were, for example, a club which sought members by invitation only. Thus, despite their different approaches, all members of the Court shared the view that a club could be a private one. The dissentient was simply more restrictive of the circumstances in which that might be so.
Public and Private Spheres
Ordinarily one would not speak of offering or providing goods or services in a private setting. Those words seem more applicable to a public setting. Discrimination on the ground of sex for example, is not unknown in the community. It is not all that uncommon for parties segregated by gender to be held say before a wedding. Generally only those known to the bride or groom are invited to the “hens night” or the “bucks party” and the parties are more often than not segregated. Ordinarily one would not think of these parties as other than private, irrespective of the numbers invited, the venue being public and the invitees contributing to the cost. Does the Act extend to those parties? Might a member of the excluded gender seek redress? Can such a person be seen as being refused goods and services, even if entertainment, recreation and refreshment were enjoyed by those who attended.
There is reason to think that the Act seeks to regulate public not private behaviour. The Act seeks to protect citizens from discrimination in the public sphere. In the public sphere citizens of particular descriptions are not to be denied goods and services available to citizens generally. Citizens of a particular sex, sexuality or race (to name only three categories) are not to be denied goods and services by reason of their sex, sexuality or race. On behalf of the community the legislature has sought to protect citizens from public discrimination. In private we are left to overcome or bear discrimination as best we can. That view is consistent with the view of all the judges in Applin and Charter.
There may be, as the respondent argues, some intimation in the objects of the Act of an intention in the legislature to limit its reach to public acts. The objects of the Act are expressed as follows:
… an Act to promote equality of opportunity between the citizens of this State; to prevent certain kinds of discrimination based on sex, sexuality, marital status, pregnancy, race or physical intellectual impairment or age; “to facilitate the participation of citizens in the economic and social life of the community; and to deal with other related matters”. (underlining added)
It may be that the passage there referred to does not evince the intention referred to by the respondent. If discrimination is proscribed in private life as well as public life, citizens may have their participation in the economic and social life of the community enhanced. However the tenor of those words, and the tenor of s 39 incline to the view that the legislature did not intend to reach into every aspect of life.
That leaves the question whether, as a matter of fact, the respondent was offering goods or services contemplated by s 39(1). Was the party a private one as they sought to make it, or did it have the character of a public event? Features of the event support each contention. The line between the two is not easy to draw. Opinions may differ about which predominates. The case law bearing on this question is scant.
The Evidence
Essentially the prime movers of the party were three women, Ms McCaig, Ms Morgan and a third woman not called as a witness. The women knew of a lesbian festival held in Victoria in 2004. Their understanding was that the event was to be public. The Victorian organisers wanted to limit attendees to lesbians born female. Initially the Victorian Equal Opportunity Commission granted the organisers an exemption so that they could so limit their function. However the exemption was withdrawn when a male to female transsexual lodged a complaint. The Adelaide organisers sought advice from the Equal Opportunity Commission in South Australia and were given to understand that, so long as their function was a private one, the Equal Opportunity Act provisions would not be invoked. In our view that advice was correct. The organisers say that they acted on that advice and tried to ensure that the function was private.
They incorporated the association known as “Sappho’s Party”. They sought to limit their membership to lesbians raised female. A question arose during the hearing whether that limitation was lawful but there would appear to be no provision in the Act preventing an association so limiting its membership. The object of the incorporation was partly to emphasise the private nature of the event. Attendees would become temporary members of the association. This mechanism of itself is unlikely to have the effect of making the event private. That question will be determined by the characteristics of the event, including how attendees were selected. The only significance of the mechanism is to demonstrate that the organisers were genuinely attempting to keep the event private. In the end the question is not what they were attempting to do, but rather, were they successful? What are the characteristics tending to suggest that the event was a public one at which goods and services were provided? What characteristics suggest it was private? I list, and, where appropriate, juxtapose, features bearing on the public/private nature of the event.
The event was to be held at a commercial venue, although the organisers had booked the whole venue and intended to restrict admission to people directly invited by them.

The organisers felt obliged to insure the event against accidents and the like being suffered by attendees. Perhaps one would not think of insurance at a private event. The insurance form described the event as a “not for profit community event” (T189, paragraph 19 of Ms Morgan’s affidavit). Incorporation was necessary to obtain public liability insurance. One would not normally associate incorporation within a private event.
The invitees had to pay a fee to attend. Although the event was not designed to return a profit, the organisers were able to obtain funds from an earlier LESFEST account (T193-196) and they applied for a grant from the LINC’S (Lesbians Incorporated (Community Grants Program)). (See generally regarding discussions of sources of possible funding paragraph 32 of the affidavit of Ms Morgan). The application was for $1,999.20 being the price of six tickets at $332.80 each. The proposal in the grant was to subsidise deaf, Aboriginal and disadvantaged lesbians (Exhibit C34). In paragraph two of the application the event is described as a “not for profit, national gathering of lesbians, a conference and cultural event”. Nowhere in the application is there reference to the event being a private one, nor to it being exclusively for lesbians raised female. While it might be said that applicants for grants have to argue their case as persuasively as they can the tone of the application is that off a public rather than a private event. The budget for the event was, according to the form, $16,660. It is not clear from the evidence to what extent, if at all, the application to LINC was successful. Nor is it clear whether the organisers obtained the money from the LESFEST account.
The respondent proposed that no liquor would be sold at the event. It obtained a BYO licence so the participants could legally drink any alcohol they brought with them. That fact may tend towards the character of a private function but it is perhaps not of great significance. It would not be inconsistent with a private function that attendees paid at a bar for at least part of their alcohol consumption.
The fees paid by the attendees covered the food made available at the event. One of the attendees coordinated the shopping for the food and the allocation of cooking to volunteers. All cooking was done by attendees. Like the alcohol question, while that might suggest a private function, it would not be of great significance.
The means by which the party was advertised and attendees invited took up a substantial part of the evidence in the trial and that is understandable. Was this a public function providing goods and services or was it a private one? To what extent could members of the public attend? Were the organisers really holding a public event like the earlier, overtly public, events described as LESFESTS, or was this really different? As already mentioned there is no difficulty in accepting that the organisers wanted to avoid the legal consequences of having a public event. They sought advice from the Office of the Commission for Equal Opportunity and they tried to make it one, but is that what they achieved? In my view it is the complainant who bears the onus of proving that the event was one which provided the goods and services contemplated by s 39(1) of the Act. It is of course the civil onus. On the balance of probabilities, has the complainant proved that the respondent provided goods and services within the meaning of the Act?
The organisers met to plan the event throughout most of 2005. Early on they discussed how the event might be publicised. They determined that a flyer would be circulated among those of their acquaintance who were feminist lesbians raised female. That included women whom they knew from previous events. It also included women vouched for by their acquaintances. The flyer (Exhibit C14) described the event as a “National Gathering of Lesbians”. It said, “Sappho is inviting lesbians raised female to gather”. It described the event as “Private Party … invitation only”. The flyer did not indicate the cost of the party nor the venue. The flyer said that prospective attendees had to contact Sappho. “For your invitation please contact Sappho”, “more details and costs available but you must contact Sappho, preferably by email, ASAP”. The plan was for the organisers then to screen those who applied for tickets. Only those fitting the criterion of lesbians raised female would be invited.
The complainant’s partner Ms Fox was given a flyer at a meeting of lesbians in Sydney. The respondent gave evidence that the handing out of the pamphlet at that meeting was contrary to their intentions. They said that although they knew the woman who handed them out she was in error in doing as she had done. She had handed the pamphlet to Ms Fox, whom she did not know. She had possibly handed out other pamphlets at that meeting to people she did not know. Ms Fox showed the pamphlet to the complainant and together they challenged the discriminatory nature of the proposed party. Reproduced below are the relevant parts of Exhibit C15, the critical email correspondence that then passed between the complainant and respondent:
Friday December 9 2005,
Dear Sappho’s Party, I have become aware that you are holding a Sappho event for lesbians who are raised women. I am someone who has lived as a woman for 35 years, and considered in my country of origin, England, and my adopted country, Australia as legally female. Although initially I was raised as a boy, I have lived as a female since I was 15 years old, when I was still legally a child, therefore, I was raised as both male and female. I would like to come to your event, with my long-term female partner of 12 years. We would both like to book tickets. Please send me details of the event and confirm whether it would be acceptable to you that we both attend.
Thank you for your time and attention.
Best Wishes
Tracie
Saturday 17 December 2005
Dear Tracie
Thank you for your courteous email from last week. In answer to your original question this event is specifically being organised for those lesbians raised female from birth who feel the need to meet as a specific group. Our intention is affirmative action for this group. Therefore it is not appropriate for you to attend. Best wishes to you and this is sent in trust that you will understand that while many of us have compassion for MTF cause we still need to uphold some spaces where we can meet as a distinct group with experience different from MTF’s. Greetings from Sappho.
As can be seen the screening process worked as it was planned to work. The complainant applied for an invitation. In her application she disclosed sufficient of her background to exclude herself from the criteria for acceptance. In my view the reply from the respondent, while polite, was a refusal to invite the complainant to the event. She was effectively excluded. Moreover she was excluded by virtue of her transsexuality. Her birth as a male and her being raised for a time as a boy excluded her. There was some discussion during the trial about the difference between a lesbian born female and lesbian raised female. The former description was that adopted by the 2004 Victorian festival. The latter was that adopted by the respondent. The respondent explained why they adopted a different criterion. They did not want to exclude persons described as intersex, i.e. persons born with characteristics, usually genitals, of both sexes and who had been raised female. One such person was known to the respondent and was allowed to attend the event. In my view that discussion is not relevant to our determination. The intersexual person would not exactly fit the definition of transsexual in s 5 of the Act. Transsexual is there defined as “a person of one sex who assumes characteristics of the other sex”. The intersex person could not be described as being “of the one sex”. That person was of both sexes. The complainant does fit the description. She was discriminated against by reason of her sexuality. The question is in this case, and has always been, was she discriminated against by reason of her sexuality in the provision of goods and services? Was she discriminated against in the public sphere where the Act protects her from discrimination or was she discriminated against in the private sphere where the Act did not protect her?
There is one further relevant aspect of the invitation process. The organisers had discussed advertising the event through Blaze, a magazine circulating in homosexual circles in Adelaide. They discussed whether the flyer, or something like it, should be used in an advertisement placed in that magazine. They rejected that idea because, even though it would, like the flyer, only attract applications for an invitation, it had about it a public character. Instead they relied on the flyers being circulated personally. They did not advertise in Blaze or any other publication.
The features of the invitation to the event are perhaps the most important indication of whether it was a public or private one. Here too the designation is not clear. When someone sends out invitations to a private party the invitation is usually sent directly to the invitee, whether orally or in writing. That is strictly what happened here but the individual invitation was preceded by a flyer. The flyer was anticipated to be sent to over 200 people. As events demonstrated, the flyer was given to someone unknown to the organisers. That would not usually happen in the case of a private party. However it was really the flyer that was distributed in that fashion, not the invitation.
The Tribunal is very conscious of the consequences of this decision. If the outcome is that this event was a public event, then groups such as the respondent will be very limited in the opportunities to meet in the privacy they say they need. It is not our function to comment on the merits of groups seeking such privacy. Our function is to determine the reach of the legislation.
If the outcome is that the event was a private one, then people such as the complainant will feel aggrieved. We accept the complainant’s evidence that transsexuals are very conscience of discrimination in the wider community. She, and no doubt others, find it ironic and hurtful that they are discriminated against among lesbians, with whom they have an affinity and who themselves are often discriminated against.
Conclusion about applicability of s 39(1)
I do not find it easy to distinguish in this case between the public and the private demarcation. On balance however I am incline to the view that this was a private function. I am not satisfied on balance that it was a public function. The method of invitation, although imperfect in its execution, had about it more characteristics of the private than the public. The method of invitation was close to the analogous private club discussed by all members of the Court in Charter. Admission to the party, like admission to the club, was by invitation only. The analogy is not perfect, the facts are not the same, but on balance the mechanism has about it more characteristics of a private function than it does a public function. Other features point both ways as has been illustrated. My conclusion is that I am not satisfied that the respondent did offer goods and services as contemplated by s 39(1) of the Act. Though it discriminated against the complainant on the grounds of her sexuality, it did not do so in a way proscribed by the Act.
That disposes of the application, however brief reference will be made to the other two issues identified at the outset of this judgment.
Issue 2 raises the question of whether s 47 of the Act provides an exemption from compliance with the discrimination provisions. It reads:
This Part does not render unlawful an act done for the purpose of carrying out a scheme or undertaking intended to ensure that persons of the one sex, … have equal opportunities with persons of the other sex … in any of the circumstances to which this Part applies.
At paragraph 54 of its further submissions, the respondent clearly enough poses the question raised on the facts of this case. Adopting the words of the respondent, “the Tribunal needs to consider … whether the event conducted by the respondent was done for the purpose of carrying out a scheme or undertaking intended to ensure that women have equal opportunities with men …” In my view, this submission may be disposed of quickly. The respondent simply cannot point to opportunities available to men, and denied to women, which are made more equal by this event. The party was designed to be an opportunity for lesbians born and raised female to gather together. I reject the argument that for the purposes of s 47, sex or gender can be equated with a special group within one gender. Nevertheless, one can imagine schemes or undertakings designed for a special group within a gender for the purpose providing an opportunity equal to that of the other gender. However, this is not the situation here. This is simply a gathering or party for a particular group of lesbians. It is not designed to overcome any inequality at all.
Issue 3
By reason of the finding in relation to the first issue, it is not necessary to decide whether the complainant is disentitled to seek a remedy under the Act based on her sexuality as a transsexual. The respondent’s argument is that in law she is not a transsexual. In law she is a male, not having obtained a certificate of reassignment pursuant to the Sexual Reassignment Act. Nevertheless, I think that the argument must be rejected. The Sexual Reassignment Act is designed to allow for the legal recognition of the reassignment of sexual identity and regulate the performance of assignment procedures (see the Purposes of the Act). The respondent asserts accurately enough that the complainant has not sought a certificate recognising her change to the female gender. She was able to contract a lawful marriage in England by virtue of her male birth certificate. She thus obtained a benefit and a recognition unavailable generally to same sex couples. The respondent asserts that there is an incongruity in the complainant claiming legal benefits for a legal marriage on the one hand and claiming sexual discrimination as a woman on the other. In fact, of course, the complainant does not claim discrimination as a woman. She claims discrimination as a transsexual and the definition of transsexual in s 5 of the Act applies to her. “Transsexual means a person of the one sex who assumes characteristics of the other sex”. The complainant was born male and has assumed the characteristics of a female. She is therefore not disentitled to make her claim by reason of her gender.
Conclusion
We would dismiss the application. In our view the respondent was not within the meaning of s 39 offering or providing goods or services to which the Equal Opportunity Act applies.
MEMBER JASINSKI
I agree with the conclusions reached by Judge Barrett.
MEMBER SHETLIFFE:
I agree with the summary of the facts contained in the majority judgment of Judge Barrett and will not repeat them here. I also agree with the finding that the Equal Opportunity Act (the Act) is not intended to cover activities that can be construed as “private”. I also agree with much of the discussion in the judgment and shall, therefore, restrict my findings to the particular issues where I find myself in disagreement.
Essentially, I have formed the view that it is not just a matter of whether an event offering goods and services is, in itself, private, but whether the process of selecting those persons from the wider public who can attend the event is discriminatory and public, therefore, in breach of the Act.
Hypothetically, one can consider three events of similar size being held at a hotel or similar “public” venue. Each event is exclusively for males – ie no females have been invited or permitted to register. Each event has come into being via a process of invitation or registration, each participant has paid a fee and no person, other than those invited or registered, is permitted to enter the particular space in which the event is being held.
To all intents and purposes all three events could be construed as being “private” events – eg the venue management may place a sign at the entry stating “private event” and, if necessary, the liquor licensing authorities would, most likely, issue a Limited Licence in similar terms to that issued to Sappho’s Party (including the words “this is a private function for invited guests only”).
The question therefore is, given that all three events are discriminatory on the basis of sex, are they in breach of the Act? In order to answer this question one must consider the process by which the participants came to be at each of the events.
Hypothetical event A is a “bucks’ party” for a male about to marry. This is a relatively common form of event. Each person attending the event is known to the prospective groom and invitations were personally sent to each guest. In my view, this process does not constitute a breach of the Act as the process of selection was personal and private.
Event B is a school reunion of attendees at an all male school (which is lawful under the Act). Notices were sent to those whose addresses were known to the organisers and an advertisement was placed in newspapers to attract participation from those whose addresses were not known. Again, this process, whilst a very public process, would not be in breach of the Act on the basis that the criterion used to separate invited participants from the wider public is a lawful one – ie only individuals who had attended a particular school, not that they were male.
Event C is a male only event organised by a small group of individuals for the purpose of enjoying some “male only” entertainment. Flyers were prepared and circulated amongst friends and colleagues. This group was encouraged to pass the flyer on to others. The flyer invited males to complete the registration form and send it to the organisers with the requisite payment. In turn tickets were sent. No females were permitted to attend.
This process would, in my view, be in breach of the Act in that the criterion for selecting from the wider public who could participate is discriminatory – ie it discriminates on the basis of sex – and the process was a sufficiently public one for the provisions of the Act to be invoked.
Under this analysis of these three hypothetical events, each being, in itself, private, two are, in my view, lawful and one is not.
If one was to consider further the proposition that a “private” event is defined by the fact that those who can attend must have prepaid a fee, registered with the organisers and that members of the public cannot just walk into the venue whilst the event is underway, then a major international conference of several hundred delegates would be considered a private event and therefore exempt from the provisions of the Equal Opportunity legislation. I find it difficult to contemplate that this is the extent of the principle that the Act does not seek to govern activities that are “private”.
What is critical, therefore, is the process used to select participants, at even a private event, from the wider public and, in particular, the criterion used to so select.
Turning now to the particular case before us, I agree that the event held by Sappho’s Party was a private event as was intended by the organisers. However, what is critical to examine, as I have outlined above, is the process by which participants were selected from the wider public.
The process adopted by Sappho’s Party is summarised in Judge Barrett’s judgment and I will not repeat it here. However, it is clear that it was not a “personal and private process” as outlined in the hypothetical example A above. For some participants this was the case, but there was clearly a significant public element to the process adopted.

The respondent argued that, because the Association was incorporated and participants were made members, the criterion for selection to attend was lawful – as per the hypothetical example B above. The evidence is clear that all participants were made temporary members of the Association, but only after they had registered – ie had been accepted as meeting the criterion for selection from the wider public to attend. I suggest that, by this stage, the discrimination had already occurred. The flyer made no mention of the existence of the Association or that participants would become members. The evidence of Rachel Morgan makes it clear that the purpose for forming the incorporated Association was “in order to provide public liability insurance to protect and cover both organisers and attendees in the event of accidents” (Ms Morgan”s affidavit par 19).
Indeed, par 18 of the same affidavit states that the Association was incorporated on 29 November 2005, well after the flyer had been circulated.
I therefore reject the proposition that the criterion for selecting participants from the wider public was lawful because Sappho’s Party Inc, as a lawfully constituted association, was merely inviting its members to attend. (I shall return to this point later.)
I therefore consider the basis of selecting participants from the wider public was done on the basis of the sexuality of individuals – ie they must be lesbian raised female. Had a heterosexual female or, indeed, a male sought to attend, then I would suggest the process would have been discriminatory. However, we are only required to consider Ms O’Keefe’s claim that she was discriminated against on the basis she was a transsexual. I agree with the findings of the majority that she was so discriminated against.
The final test, therefore, is whether the process for the invitation to register – ie the distribution of the initial flyer – was sufficiently public for it to be caught by the provisions of the Act. I consider it was for the following reasons:
·The flyer was widely distributed across all states and, indeed, internationally.
·The wording was very inviting – all (or any) lesbian raised female is welcome. This implies that any member of the wider public who meets the criterion is welcome.
·The instructions to the friends interstate were to distribute the flyer to those individuals known to these friends to be lesbian raised female. Whilst this could be considered a relatively “private” form of distribution, the process also encouraged those in receipt of the flyer to pass it on to others – a very public form of distribution and one that could not be controlled by the organisers. One can also question the capability of those distributing the flyers to know whether someone they were engaged with was, in fact, lesbian born female.
The flyer did, in fact, come into the possession of at least one person who did not satisfy the criterion, Ms O’Keefe. We received no evidence (nor could we have expected to have) that the flyer did not come into the possession of other members of the wider public who did not meet the criterion, but who chose not to lodge a complaint. ie The distribution process, despite the intentions of the organisers, was not sufficiently private to avoid the flyer being received by other members of the wider public.
The combination of these reasons leads me to the view that the distribution of the flyers was such as to be sufficiently public to invoke the provisions of the Act.
I note, here, that, had the organisers of Sappho’s Party only invited individuals they knew by name, with personalised invitations (and with no general flyer) they may well have escaped the provisions of the Act – as per hypothetical example a) above. Similarly, had they sent out a flyer inviting lesbians born female to join Sappho’s Party Inc, the Association, and then invited the members of Sappho’s Party Inc to the function in question, they similarly could have escaped the provisions of the Act, as the criterion for selecting participants from the wider public was non-discriminatory and lawful – as per hypothetical example b) above.
I agree with the majority on the question of exemption under s 47 of the Act.
Conclusion
For all of the reasons set out above, I find that Sappho’s Party did discriminate against Ms O’Keefe and that the discrimination was unlawful under s 39 (1) of the Equal Opportunity Act.
As this is a minority judgment, I do not turn my mind to the question of compensation other than to observe that Ms O’Keefe gave evidence that she had no intention of attending the event even had Sappho’s Party invited her to do so. I also note that she received considerable publicity for her cause through the prosecution of this matter.