Sinden v State of Queensland
[2012] QCAT 284
•5 July 2012
| CITATION: | Sinden v State of Queensland [2012] QCAT 284 |
| PARTIES: | Derek Sinden (Applicant) |
| v | |
| State of Queensland (Department) |
| APPLICATION NUMBER: | ADL007-09 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 26, 27 and 28 March 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Richard Oliver, Senior Member |
| DELIVERED ON: | 5 July 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application is dismissed. |
| CATCHWORDS: | Anti-discrimination – where the Applicant has the attribute of gender identity – where a diagnosis of Gender Identity Disorder was made and the Respondent refused to allow the Applicant to be given female hormone therapy – where the Respondent permitted the Applicant to be administered anti-androgen medication – whether the Respondent’s transgender policy was discriminatory – whether the Applicant was treated less favourably than a person without the attribute in the circumstances – identification of a suitable comparator – whether the Respondent discriminated against the Applicant by not undertaking a proper assessment to determine whether the Applicant had Gender Identity Disorder Anti-Discrimination Act 1991, ss 7, 10 Purvis v New South Wales (2003) 217 CLR 92 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Represented by Mr Hamlyn Harris of counsel instructed by Aboriginal and Torres Strait Islander Legal Service |
| RESPONDENT: | Represented by Mr Murdoch of counsel instructed by Crown Law |
REASONS FOR DECISION
Derek Sinden, also known as Thalia Sinden, was sentenced to a term of imprisonment in April 1999. He remains in prison although eligible for parole. He is due for release in 2013. For some years prior to his imprisonment, he says he has identified as a member of the opposite sex.
During his imprisonment, and in particular after being transferred to the Wolston Correctional Centre in 2004, he sought treatment for gender dysphoria. He told his general practitioner at the prison about these feelings and was ultimately referred to Dr Gale Bearman of the Brisbane Transgender Clinic. Dr Bearman diagnosed Gender Identity Disorder and on 14 August 2006 prescribed two drugs to put into effect gender change, they were Sprionolactone (an anti-androgen) and Juliet-35 (a female hormone).
The Respondent, acting through its Department of Corrective Services (the Department) permitted the Applicant to take the Sprionolactone (later changed to Androcur) but refused to permit the Applicant to be dispensed with the Juliet-35.
The Applicant contends that the Department’s conduct in refusing to allow him to commence the female hormone therapy treatment is discriminatory and contravenes section 7(m) of the Anti-Discrimination Act 1991. In the Applicant’s amended contentions the specific complaints directed to the Department are:
i) the refusal of the Department to allow the Applicant to commence female hormone medication; and in the alternative
ii) the failure of the Department before such refusal to cause investigations to be carried out as to whether there were proper clinical grounds for the Applicant to be allowed to commence female hormone medication.
The Department contends that its decision to refuse the treatment was not discriminatory but consistent with its transgender policy and procedures not to permit a person to commence hormone therapy treatment for the first time in prison. Hormone treatment could continue in prison if the treatment was in place prior to entering the prison.
The issues for determination are:
(a) Whether the Applicant was diagnosed with Gender Identity Disorder.
(b) What was the basis for the Department’s refusal to permit the Applicant to commence female hormone therapy?
(c) Was the Department’s application of its transgender policy in refusing to allow the Applicant to be administered female hormone treatment discriminatory?
(d) Did the Department discriminate against the Applicant by failing to properly investigate the Applicant’s claim of Gender Identity Disorder?
Background
The Applicant was born on 23 November 1969. He describes himself as an Indigenous transgender woman who identifies as a female person born in a male body. He has felt this way from an early age. He has told the Tribunal that in his formative years and early teenage years he would often dress in female clothing and even wore girl’s clothes to school. He describes being interested in wearing make up, reading women’s magazines and being with girls and women in preference to male company. He expressed these views about wanting to become a female to his stepmother on a number of occasions while growing up.
The Applicant was first detained in a correctional facility at age 16 when he was sent to a boy’s home. After he left the boy’s home he tried to behave like a normal boy but was very uncomfortable about this and still wore girls clothes. After his release and while in his late teens he moved to Sydney and became involved in the transgender, gay and lesbian community. These feelings and behaviours continued through to the late eighties. He states that during this period he had difficulty coming to terms with his identity issues, was hurting emotionally, upset, angry and became aggressive. He immersed himself in drugs, drinking and sexual activities with men. He even considered suicide.
By 1989 he had moved to Brisbane. Although he continued having identity issues, he did not seek or receive any support or treatment for his confusion about his feelings at this time. Then in 1990, he was again imprisoned at a correctional centre in Brisbane. During this incarceration, he discussed his gender identity issues with a Dr Wendell Rosevear. It’s unclear what became of these discussions but it does seem they were in the nature of counselling. In 1994 he did speak to another counsellor about his feelings but despite this he once again reverted to drugs to try and cope with his identity issues.
In 1999 he was sentenced to imprisonment for a lengthy period. He is still undergoing that sentence. During this recent period of incarceration he became more focussed on his transgender feelings and his desire to not only get help but also to take steps to engage more in the female role and eventually commence the process of change of sexual identity. The Applicant felt encouraged after he spoke with another transgender inmate, who helped him with advice about how he should get help within the prison system.
It is worth noting at this point that the Applicant’s self description of his sexual identity issues is not contested and for the purposes of this application are accepted as being genuine.
Dr Noel Hayman is a general practitioner who visits the Wolston Park Correctional Centre. He is one of the doctors who regularly sees the Applicant when he visits the prison. He first started seeing the Applicant in 2004 and discussed personal issues with him on a number of occasions. On 21 January 2006 he recalls referring the Applicant to the Transgender Clinic in Brisbane.
Subsequent to seeing Dr Hayman the Applicant saw Dr Dominique Hannah, a psychiatrist, on 13 February 2006[1] but Dr Hayman did not cause that referral. The note in the clinical record of 21 January 2006 simply says that an appointment had been made for the Transgender Clinic mid year. It is uncertain how this referral came about.
[1] Exhibit 3, statement of Dr Noel Hayman.
As some point around this time, the Applicant also had a counselling session with Roy Starkey, a psychologist. He prepared a note of the session, which is incorporated in the medical records, and which sets out a personal history consistent with the above and what the Applicant later told Dr Hannah. Mr Starkey concluded that further investigation was necessary.
Dr Hannah, a consultant psychiatrist, had a consultation with the Applicant on 13 February 2006. A fair copy of her clinical notes is attached to her statement[2] which sets out the Applicant’s history similar to that described above. Dr Hannah noted that the Applicant had a long standing gender dysphoria since early childhood. She noted that there were no psychiatric contra indications and his gender dysphoria was not explained by mental illness. She recommended that the Applicant be referred to a specialist for assessment. Dr Hannah did not undertake a full clinical assessment for Gender Identity Disorder or for suitability for sex reassignment. She did however conclude that the Applicant’s presentation and background were consistent with gender dysphoria that extended back to childhood. She also concluded that his presentation was consistent with a Gender Identity Disorder under DSM IV.[3]
[2] Exhibit 4, statement of Dr Dominique Hannah “DH1”.
[3] Diagnostic Statistical Manual IV edition.
In addition to her evidence about her consultation with the Applicant she did express an opinion about the ongoing prescribing of the anti-androgen Androcur, a drug to block the production of male hormones. She expressed concern because taking Androcur alone can result in long term medical problems if not used in combination with a female hormone drug. She accepted that this could be psychologically distressing for a person with Gender Identity Disorder.
After the consultation with Dr Hannah, Marie Griffiths, the Health Services Coordinator made an appointment for the Applicant to see Dr Gale Bearman of the Transgender Clinic. After some interruptions the appointment went ahead on 14 August 2006. Although there is some uncertainty about this, it seems Ms Griffiths forwarded Dr Hannah’s notes to Dr Bearman for the purposes of her consultation with the Applicant.
Although Dr Bearman does not have an accredited specialty in Gender Identity Disorder, because none is available in Australia, she certainly has expertise in the area of transgender medicine. She is credentialed by Queensland Health to manage transgender patients and has 15 years experience in the area and has seen over 500 patients. She has attended international conferences on Gender Identity Disorder and contributed to a text book on the Principles of Transgender Management and Surgery published in the United States.
After seeing the Applicant for about an hour, Dr Bearman wrote to Dr Adamson[4] and recommended that the Applicant be commenced on female hormone therapy. Subject to the results of blood tests, the recommendation was that the Applicant should start on both anti-androgen and oestrogen. The recommended anti-androgen drug was Spironolactone and the oestrogen drug was Juliette-35. Dr Bearman said that she had spoken to the Applicant about the effect of this treatment which would result in bodily changes over a couple of years. She said in that letter:
“Of course hormones simply assist the person to live in their appropriate gender role. Treatment of Gender Identity Disorder also involves enabling the person to have gender expression as much as circumstances allow.”
[4] Exhibit 12 “MG14”.
There were follow up letters from Dr Bearman the next being to Dr Hayman on 27 October 2008[5]. She had seen the Applicant for a second time and due to an adverse reaction she replaced Spironolactone with Androcur. She again commented that the patient “should be on oestrogen”. She said in the letter that the transgender state is a miserable one without proper treatment and the suicide rate is high. That, coupled with his indigenous status, his loss of physical strength and the daily threat of assault put him at risk. She also commented that the “system should not deny treatment”.
[5] Exhibit 12 “MG25”.
The last comment relates to the application of the Department’s policy not to commence hormone treatment to transgender inmates who had not been receiving such treatment prior to incarceration.
Since the commencement of the Androcur, the Department’s position has not changed with respect to the use of hormone therapy. It relies on various policies that have been implemented since the commencement of the Applicant’s incarceration. It is appropriate to deal with those policies now.
Policy/Procedures for Transgender Offenders
Between 2001 and 2008 the Department had implemented three transgender policies in place for transgender inmates. The first policy was the “Procedure Health and Medical – Elective Surgery” version 00, implemented on 1 July 2001. The 2001 policy provided that with respect to hormone treatment:
“Hormone treatment will only be provided to those transgender prisoners who have been receiving such treatment prior to being incarcerated. Hormone treatment will not be commenced whilst in custody.”[6]
[6] Statement of Fiona Rafter Ex 6 Attachment “FR2”.
The policy changed on 4 November 2005 and was replaced with the “Specialised Medical Treatments Procedure” commenced in November 2005. The relevant part of the policy relating to hormone treatment is as follows:
“Offender requests for hormone treatment must be referred to the Director, Health and Medical for consideration and approval. Generally, hormone treatment will be provided to transgender offenders who have been receiving such treatment prior to being imprisoned. In other circumstances an offender may be referred for specialist review to a specialist service for example … transgender clinic.”[7]
[7] Ibid Ex 6 “FR1”.
Following a review the policy again changed and was implemented on 12 September 2007. It was titled “Procedure-Management of Transgender Offender”. Similarly it provided:
“A request for hormone treatment or gender reassignment surgery will only be considered if the treatment or surgery commenced prior to incarceration.
Any request by an offender to continue hormone treatment or gender reassignment will be determined by the Assistant Director-General, Custodial Operations in consultation with the Senior Director, Offender Health Services.”[8]
[8] Ibid Ex 6 “FR3”.
The 2007 policy then went on to particularise what matters might be taken into account when considering such a request, including the welfare of the offender, whether treatment had commenced prior to incarceration and the length of the custodial sentence.
It is immediately apparent that the policy has been largely consistent since it was first implemented in 2001 in not authorising the commencement of hormone treatment after incarceration.
Basis for the Department’s policy
Ms Fiona Rafter[9] has provided some background to the implementation of these policies. She was involved in the development of the transgender offender’s procedure in her role as Executive Director Strategic Policy and Services in July 2006. The policy varied to a degree which seemed to take away any discretion on the Department to provide such treatment.
[9] Executive Director, Ministerial, Information & Legal Services.
Ms Rafter was first employed by the Department as a senior legal officer in the Legal Services Unit in 2001. In 2006 she was the Executive Director, Strategic Policy and Services and was instrumental in development of the transgender policy implemented on 12 September 2007. When she took over the task the operative policy was that which commenced in 2005. Ms Rafter explained how the 2007 policy was adopted and the reasons for it. Various drafts of the policy were exchanged between herself and the Executive Director General of Custodial Operations, and ultimately, after consultation a decision was made that the existing policy/procedure should continue. That is, only those prisoners who are already on hormone treatment, should continue that treatment in prison. However there was still an opportunity for an offender to apply for the treatment depending on the circumstances.
The basis for the transgender policy revolved around a number of issues. Firstly, safety was a concern because an offender on the treatment would invariably be at a higher risk in an all male prison environment by adopting a female role. There was concern about lack of support and access to services not otherwise available in prison. This relates to support, perhaps counselling, from others who have been through the transgender process and could assist with personal issues that might arise during the treatment. This concern also related to the availability of medical practitioners and specialised transgender services that would be readily available in the outside community but not, at short notice, within the prison. Although the prison does have a medical service, it is not geared for specific treatment of the type that might be necessary for an individual on the transgender program.
In deciding who should be the decision maker with respect to requests for treatment, it was decided that Custodial Operations should be the ultimate decision maker even though medical procedures were involved. The rationale for this decision, Ms Rafter says, related to operational issues within the prison environment. Custodial Operations was responsible for the day to day operations of the facility and was in the best position to make decisions about how a medical procedure would impact on the operation of the facility as a whole.
Ms Rafter’s evidence about the implementation of the transgender policy is understandable when considered with the evidence of Marlene Morrison, who is the Deputy Commissioner Custodial Operations. Ms Morrison commenced that role in November 2009 subsequent to the development of the policy. She is well qualified to discuss the rationale behind the policy having had extensive experience working with prisoners for some 26 years.[10] Her function within the organisation was to direct the utilisation of resources for the Custodial Operations Directorate and oversee and implement a strategic policy of the Queensland Corrective Services. She reports to the Commissioner. She also had some experience in management of transgender prisoners while working in corrections in Victoria as the Director – Prison Services, and Assistant Commissioner – Offender Management. She made decisions about the placement and case management of three transgender prisoners.
[10]Also Graduate Diploma in Applied Social Psychology, Swinburne University of Technology 1985; and Bachelor of Arts, Monash University, 1980.
She describes in detail in her statement[11] the considerations involved in dealing with transgender prisoners. She makes the point, sensibly, that the correctional environment is not an appropriate environment for an individual to embark on a life changing decision such as commencing transgender hormone treatment.
[11] Exhibit 16.
She describes the unique circumstances of living in a correctional environment because the individual is removed from community, work and support networks that might be relied on to assist in making such an important decision. The prison environment is managed to reduce risk to both the individual and to other prisoners. With imprisonment comes institutionalisation which reduces one’s ability to organise life on a day to day basis and make choices. Choices made in the prison environment may well differ from those made outside that environment. There is more time for a prisoner to dwell on personal issues because a considerable part of the day, usually about 12 hours, is spent alone in a room without contact with any other person. Daily decisions are made for the individual prisoner which includes recreation, food and exercise. There is also the influence of other prisoners. Ms Morrison puts it neatly when she says that a prisoner “who identifies and is diagnosed with gender dysphoria within a prison is doing so in a setting that has potential to heighten cognitive dissonance – an uncomfortable feeling where conflicting ideas are held simultaneously.”[12]
[12] Exhibit 16 paragraph 14.
Another consideration is the motivation of self interest in that individuals who are incarcerated work to minimise the impact of the incarceration and maximise access to things which are significant to them. Therefore, the individual’s motivation for gender change may have an ulterior motive.
Ms Morrison comments that prison is not the ideal place to commence transgender hormone treatment. There is no opportunity, really, to live as a woman and that in itself creates problems for the Applicant in that there will be prisoners who are less understanding about what the individual is going through and this could result in exposure to ridicule and even assault. This then impacts negatively on the individual’s overall wellbeing and safety, and the security and good management of the prison as a whole. It also may entice other prisoners to engage in behaviour that might have the potential to threaten security. Security is obviously an important aspect of running a prison. Ms Morrison has experience of this in other institutions. Those who have commenced the treatment before going into the prison system, Ms Morrison acknowledges, may still encounter problems but at least the decision making process has been undertaken in the non prison environment.
Overall, Ms Morrison’s evidence is very persuasive in assisting me to conclude that there is a sound rationale for not permitting the commencement of hormone treatment whilst a prisoner is incarcerated.
Her comments, are also consistent with the observations of the various expert witnesses who have given evidence, particularly Dr James Barrett whose evidence, experience and insight into transgender issues in the prison environment is impressive.
Is there a diagnosis of Gender Identity Disorder?
Dr Bearman is the only one who has made a diagnosis of Gender Identity Disorder.
Dr Barrett is a consultant psychiatrist specialising in transgender health and gender identity. He has had specific experience in dealing with transgender issues in the prison population in Great Britain. He has provided a report to the Tribunal which addresses transgender issues generally and more particularly within the prison population and specific issues relating to the Applicant. In his report he is careful to distinguish between individuals in the prison population and those in mainstream society when undertaking the diagnosis, treatment and management of individuals with Gender Identity Disorders.
Dr Barrett sees two distinct problems for those who claim to have a Gender Identity Disorder for the first time in prison, the first being one of diagnosis. After diagnosis there are the associated problems of providing treatment in the prison environment, some of which have already been mentioned above.
As I understand Dr Barrett’s evidence, incarceration itself motivates some prisoners to use claims of Gender Identity Disorder to improve their conditions and get advantages not available to others. It may improve their self esteem. They may not be motivated by an honest and genuine desire for gender reassignment. Therefore Dr Barratt says motivation behind such requests for reassignment “merits extremely careful consideration, usually over the course of multiple assessments and with much discussion among the assessing clinicians.” He also points out that once gender reassignment is underway, it is something that can be used to manipulate the penal system.
The diagnosis itself is also difficult in the prison environment. The mere history of transgender feelings since childhood is not enough. There needs to be an assessment by multiple clinicians. There should be corroborative evidence from family or friends to support the self report of behaviour consistent with the adopted gender role. The individual should adopt the role for a reasonable period, perhaps up to two years. Accurate diagnosis is particularly important in the artificial environment of prison.
Subject to a qualification about long term prisoners, the recurring theme in all of the evidence given during the hearing is that extreme caution needs to be exercised when considering commencing an offender on a hormone treatment programme whilst in prison.
This then leads to the question of proper diagnosis. Expert medical reports have been provided not only by Dr Barrett but also by Drs Grant and Bell, all psychiatrists. They, together with Dr Hannah, participated in a joint expert’s conclave and produced a joint report[13]. In that report, not only do they agree that caution is necessary in prescribing treatment for gender reassignment whilst in prison but also they raise the difficulties of being able to make a proper and reliable diagnosis of Gender Identity Disorder in the prison environment. Assessment should be undertaken by multiple, appropriately skilled, clinicians. There should be a psychological assessment of personality to determine how an individual will cope with the treatment. Ideally, there should be a collation of corroborative information from family, friends and associates about the individual’s behaviour and tendencies from as early in life as possible. Also the individual should live in the role of the opposite sex for an extended period.
[13] Exhibit 9.
It is conceded by Dr Bearman that the Applicant’s diagnosis by her was not as comprehensive as that suggested in the joint report. She readily agreed that had she had the luxury of the resources and the time she would prefer to undertake a more in depth investigation into the Applicant’s condition of the type referred to in the joint expert report. It is reasonable to acknowledge, having regard to the expert evidence, that there may be some doubt as to whether there has be a diagnosis of Gender Identity Disorder. Having said that, at the time of these events, the only diagnosis of the disorder came from Dr Bearman, and the Department acted in accordance with that diagnosis by permitting the Applicant to be prescribed Spironolactone.
The Department, on the basis of the expert evidence, is contending that there has been no reliable diagnosis and therefore the refusal to permit the treatment was reasonable and not discriminatory. Alternatively, no treatment is necessary because there has been no reliable diagnosis. There are two problems with this contention. Firstly, as I have said above, a diagnosis has been made by Dr Bearman and the Department acted on that diagnosis by permitting the Applicant to be prescribed Spironolactone. Secondly, for the reasons that follow the Department’s decision not to permit the treatment was based on its policy for the treatment of transgender prisoners after incarceration. Implicit in this is an acceptance of the diagnosis by Dr Bearman.
The basis of the Department’s decision
Marie Griffiths, on reading the letter from Dr Bearman, spoke to somebody in the Department (she can’t recall who) about the prescription, because she was aware that the transgender policy then in place stipulated that transgender hormone treatment could not commence whilst an inmate was in the prison system. She contacted “head office” to confirm this[14] and was told that the policy was under review.
[14] Exhibit 12 paragraph 34.
Whilst she was away on holidays, it seems, and despite the policy Dr Hayman prescribed the Spironolactone and the Applicant started taking the drug. Ms Griffith’s explanation for this is that often, the visiting medical practitioners are not aware of prison policy and procedures. There is nothing unusual about that. However, after finding out that the Applicant had been commenced on the drug, she told Dr Hayman that the policy did not permit this course of action. Ms Griffiths sought clarification from others including Sonya Messer, Correctional Manager of Offender Development, June Brokenstein, Acting Project Officer Health Services and Di Taylor, Executive Director, Offender Programs and Services. The response was consistent with the policy that treatment should not begin, but that the whole transgender policy and procedure was under review. Ms Griffiths expressed concern about the current situation because the Applicant was being sent to the Transgender Clinic and Dr Bearman was recommending female hormone treatment. The only direct response she received when querying whether the treatment should continue and/or commence was that the transgender policy was under review. Despite this the Applicant continued to take Spironolactone.
Subsequent to this on 5 December 2006, Maria Rinaudo, a lawyer from the Aboriginal & Torres Strait Islander Legal Service (ATSILS) wrote to Phil Manion, General Manager, expressing concern about the Applicant’s treatment. The letter notes that the Applicant was taking “certain drugs, as part of the transgender regime”, but the further step in the process had been halted. Ms Rinaudo asked when the treatment was likely to progress.
The response to that letter is interesting.[15] There was an acknowledgement that the Applicant was supported medically and psychologically and that he was taking a drug which was “not unique to transgender therapy”. That of course is the reference to Spironolactone. The letter goes on to say that the transgender policy would be reviewed upon the appointment of a “QCS Health and Medical Consultant”. There is no definitive statement that the Applicant was not permitted to take any of the transgender therapy drugs because of the transgender policy in place at that time.
[15] Exhibit 12 attachment MG18.
A further letter was written by ATSILS in April 2007. Again Ms Rinaudo queried when the Applicant would commence the next step in the transgender therapy, that is, female hormone treatment. On 12 April, Ms Griffiths wrote to Ms Rinaudo advising that consultants had been appointed and the transgender policy was under consideration.
Then on 9 October 2007 after a further request from ATSILS, Ms Rinaudo was advised by Scott Collins, General Manager, that a review of guidelines had been conducted with “the existing guidelines for management remain unaltered. Furthermore, we have been advised that SINDEN is not to commence taking female hormone therapy”.
It seems that is the first definitive statement that treatment would not be commenced because of the prison transgender policy on female hormone treatment.
The Applicant contends that the Department’s refusal of treatment was on the basis that the Applicant did not have a genuine medical need for the treatment but rather it was a lifestyle choice for him. This contention is inconsistent with the facts. The Applicant was permitted to take Spironolactone which has caused changes to his body. He was referred back to see Dr Bearman and has been monitored by medical practitioners in the prison. Ms Griffiths’ evidence does not suggest that the refusal of treatment was other than an application of the policy.
Oddly, the Applicant has continued on the anti-androgen drug Androcur from when it was first prescribed (as Spironolactone) in mid 2006. This evidence, and particularly that of Ms Griffiths, establishes that the Department, in refusing treatment, relied on the policies and procedures in place regarding hormone treatment at the time Dr Bearman recommended the treatment as well as the policy implemented in October 2007 after the review.
I have therefore come to the view that the reason the Department did not allow the Applicant to fully commence the hormone treatment was as a result of reliance on the transgender policy.
Was the application of the Department’s transgender policy discriminatory?
The purpose of the anti-discrimination legislation is to promote equality of opportunity for everyone and to protect them from unfair discrimination in certain areas of activity, in this case medical treatment.[16] It is also to ensure that individuals are not treated to their detriment on the basis of an attribute, in this case gender identity, resulting in stereotypical assumptions about them or their behaviour, rather to act rationally on the basis of their individual worth and merit.[17] It is accepted that the discrimination complained of here is direct discrimination.
[16] Anti-Discrimination Act 1991, s 6.
[17] Collier v Austin Health [2011] VSC 344 at [24]-[27].
Section 10 of the Anti-Discrimination Act1991 prohibits direct discrimination on the basis of an attribute. It provides:
“Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.”
The attribute of gender identity is one of the attributes referred to in s 7 of the Act. In the context of this case direct discrimination occurs if the Department treats the Applicant, a person with the attribute of gender identity, less favourably than another person without the attribute would be treated in circumstances that are the same or not materially different.[18] The Act also dictates that motive for discrimination is irrelevant.[19]
[18] Anti-Discrimination Act1991, s 10(1).
[19] Anti-Discrimination Act1991, s 10(3).
In Purvis v New South Wales,[20] the High Court considered the application of s 5 of the Disability Discrimination Act 1992 (Cth) insofar as it related to an appeal against a decision of the Human Rights and Equal Opportunity Commission (NSW) that Daniel Purvis, a high school student with an accepted disability, was suspended, and then excluded, from school as a result of his behaviour which included assaults on fellow students and a teacher’s aide. Although the Commissioner found in Daniel’s favour that he was discriminated against by the State because of his disability, the finding was reversed on review before the Federal Court. An appeal against that decision was dismissed by the Full Court of the Federal Court. The matter then came before the High Court.
[20] (2003) 217 CLR 92.
The wording of s 5 of the Disability Discrimination Act 1992 is different to section 10 of the Anti-Discrimination Act 1991. It provides that:
a person discriminates if a person (‘discriminator’) discriminates against another person (‘aggrieved person’) on the ground of disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability. (my emphasis)
The conduct constituting the discrimination must be considered in the circumstances of the particular case. Similarly here, it is impossible to ignore the circumstances in which the Applicant was refused permission for hormone treatment. In Purvis the majority said with respect to s 5(1):
“In the present case, the circumstances in which Daniel was treated as he was, included, but was not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils. Section 5(1) then presented two questions: (i) How, in those circumstances, would the educational authority have treated a person without Daniel’s disability? (ii) If Daniel’s treatment was less favourable than the treatment that would be given to a person without the disability, was that because of Daniel’s disability? Section 5(1) could be engaged in the application of s 22 only if it were found that Daniel was treated less favourably than a person without his disability would have been treated in circumstances that were the same as or were not materially different from the circumstances of Daniel’s treatment.”[21]
[21] Purvis v New South Wales (2003) 217 CLR 92 at [225].
Approaching the construction of s 10(1) in a similar way presents two questions. Firstly, how in these circumstances, that is the prison environment, would the Department have treated a person without the Applicant’s attribute, and secondly, if the Applicant’s treatment was less favourable than the treatment that would be given to a person without the attribute, was it on the basis of the attribute. I have substituted “the basis” for “because” to follow the wording of s 10(1).
The answer to the first question necessarily calls for the identification of a person, a comparator, without the attribute but with a medical condition, physical or psychological, that would require treatment. The Applicant contends that the appropriate comparator for determining if the Applicant’s treatment in the circumstances is less favourable, is another prisoner who doesn’t have the attribute but has a medical condition diagnosed for the first time in prison, is referred to a medical practitioner and prescribed medication and permitted to take the medication.[22]
[22] Applicant’s Final Submissions paragraph 11-12.
The comparator does not need to be an actual person with an identifiable medical condition. For the purposes of applying s 10(1) I generally agree with the Applicant’s contention that the comparator can be a hypothetical person without the Applicant’s attribute. However by adopting the Applicant’s notional comparator the person could have any physical medical condition from asthma to a chronic heart condition or a psychiatric condition requiring counselling and/or medication, to fall within the broad range of comparators suggested by the Applicant.
However, as was pointed out in Purvis, it is also necessary to have regard to the circumstances in which the Department is making decisions about the Applicant’s treatment and welfare. This case is considered in the context of the prison environment. In Purvis it was not Daniel’s disability which was under consideration, but his behaviour compared to other pupils without the disability, in the school environment. Here it is not the administration of treatment for the disorder itself that is under consideration, but firstly whether the treatment is appropriate in circumstances where the diagnosis of the attribute is questionable, and secondly, the impact on the security and good management of the prison.
The Applicant’s treatment for the disorder will have two outcomes. He will experience irreversible changes to his body which will have the effect of commencing a transition to female. The second outcome will be the impact on the good management and security of the prison, the Applicant’s exposure to harm from other prisoners, and potential behaviour issues with other prisoners. In addition there remains some doubt as to the validity of the diagnosis. Therefore to adopt the Applicant’s notional comparator is, in my view, too simplistic in the circumstances. The notional comparator should be a prisoner with a diagnosed medical condition, not life threatening, and whose treatment with medication and/or counselling, is likely to adversely impact on the good management and security of the prison, and may cause potential irreversible harm to the individual prisoner. Another consideration is the length of the prison sentence. Obviously and as the policy recognises, a long term sentence, eg life, may warrant intervention in any event.
Although Dr Bearman has made the diagnosis and Dr Barrett expressed confidence in her expertise to make the diagnosis, the joint expert report firmly concludes that there could not have been a reliable evidence based diagnosis of Gender Identity Disorder made in 2006. This evidence and that of Ms Rafter and Ms Morrison all cast doubt, not only on the strength of the diagnosis but also whether the current treatment should continue.
However, the diagnosis issue is after the fact. The refusal of treatment was not because of doubt about the diagnosis but was as a result of the application of the transgender policy. One then comes back to the central question, that is, how the Department would have treated the notional comparator without the Applicant’s attribute? The answer to this question must, in the circumstances be, that the Department would not have treated the comparator any differently to the Applicant. Therefore the Applicant’s treatment was not less favourable than that of the notional comparator.
Was the Department’s failure to investigate the Applicant’s condition discriminatory?
The Applicant also contends, as an alternative, that the Department discriminated against him by failing to properly investigate whether the Applicant did in fact have Gender Identity Disorder. The basis of this allegation is that the Department did not go far enough in the diagnostic procedure in terms of that which is contained in the expert reports and referred to above. In particular, although it is possible for a person in prison to be diagnosed as having Gender Identity Disorder there needs to be a comprehensive expert assessment.
The assessment must be undertaken by skilled clinicians experienced in the field, in consultation with a forensic psychiatrist, taking into account the prisoner’s particular circumstances, including length of sentence. The assessment would include a psychological assessment to determine, amongst other things, the individual’s strengths and vulnerabilities and how he would cope with the process of gender reassignment. There should also be corroborative evidence of the claim of gender identity from third parties, preferably family and friends. This is difficult for the Applicant because he has spent considerable time in prison.
Finally there should be an adoption of the role for a significant period. The individual should be treated the same as he would be treated in the community. Obviously there would be practical difficulties with this in the prison.[23]
[23] Full particulars are set out in Ex 9, Joint Expert Report paragraphs 9-15.
The Applicant did not undergo any of these detailed assessments. The evidence about what clinical assessments should be undertaken only came to light with the gathering of expert evidence for this litigation and the preparation of the joint expert report following a conclave in March 2012. As I have said a diagnosis was made by Dr Bearman and the Department acted on that diagnosis. Having acted on that diagnosis and accepted that the Applicant did have the condition of Gender Identity Disorder it cannot now be said that the Applicant was discriminated against because of a refusal by the Department to undertake further investigations when none were necessary.
Compensation
Despite my findings that the Department has not contravened the Act, it is prudent to assess the compensation payable should others take a different view. Section 209(b) of the Act authorises the payment of compensation for the loss and damage caused by any contravention. The Applicant submits that the Department’s conduct has caused considerable distress and frustration. Taking the anti-androgen without the female hormone has caused significant side effects including skin rashes and lesions, depression and nausea. There is also stress associated with not knowing for some time whether the female hormone treatment would be permitted. As well his treatment to effect gender change has been set back by at least five years. I accept that this whole process has been a very stressful experience for the Applicant and this view is supported, certainly by Dr Bearman and generally by the other experts.
Balanced against this is an important factor. The Applicant is now eligible for parole. Although I cannot predict whether any application for parole would be successful if made, but if he was released then hormone treatment could commence in the community, which is the ideal environment for such treatment.
The Department submits that it has provided considerable assistance to the Applicant by following Dr Bearman’s recommendation for the continuation of the Androcur and accommodating the Applicant’s desire to adopt the female role. To an extent this is true. It relies on Mahommed v State of Queensland[24] where the applicant in that case was awarded $2,000.00 as a result of a contravention in not providing fresh halal meat in a period of a little over a year. This case is of little assistance.
[24] [2006] QADT 21.
There can be no precision in the assessment of damages in a case like this. The Applicant is already in an environment where the amenities of life are limited. He has experienced personal pain and suffering and mental distress over the past seven years since first diagnosed by Dr Bearman. I was fortunate to see the Applicant give his evidence and respond to questions asked of him. As I said earlier there is no issue that his presentation is genuine and this was consistent with the way he gave his evidence. I am therefore of the opinion that an award of $20,000.00 is reasonable compensation had a contravention been made out. This award would include interest.
Conclusion
The Applicant has been diagnosed with Gender Identity Disorder, although the diagnosis is now questionable. Gender identity is an attribute under s 7 of the Anti-Discrimination Act 1991. The Department has refused to allow the Applicant to be given female hormone drugs in accordance with its transgender policy to effect gender reassignment to female. By adopting the notional comparator of the type referred to in these reasons, I find that in the circumstances of this case the Department has not treated the Applicant less favourably than another prisoner without the attribute.
I also find that the Department has not discriminated against the Applicant by failing to undertake an investigation into whether the Applicant has a Gender Identity Disorder.
The application is dismissed.
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