Tafao v State of Queensland
[2020] QCATA 76
•22 May 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Tafao v State of Queensland [2020] QCATA 76
PARTIES:
LEILANI TAFAO
(applicant/appellant)
v
STATE OF QUEENSLAND
(first respondent)SERCO AUSTRALIA PTY LTD
(second respondent)
MARK WALTERS
(third respondent)APPLICATION NO/S:
APL338-18
ORIGINATING APPLICATION NO/S:
ADL075-16
MATTER TYPE:
Appeals
DELIVERED ON:
22 May 2020
HEARING DATE:
15 October 2019
HEARD AT:
Brisbane
DECISION OF:
Senior Member Howard
Member Traves
ORDERS:
IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT:
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The Tribunal’s decision is set aside.
4. It is declared that, in respect of the use of male pronouns to refer to the applicant, the first respondent, second respondent and third respondent are jointly and severally liable for unlawful indirect discrimination in contravention of s 101 of the Anti-Discrimination Act 1991 (Qld).
5. The complaint alleging unlawful discrimination in relation to the imposition of internal management plans is dismissed.
6. The respondents must make a private apology pursuant to s 209(1)(d) of the Anti-Discrimination Act 1991 (Qld) in relation to the use of male pronouns in addressing or referring to the applicant.
THE APPEAL TRIBUNAL DIRECTS:
7. Each party must file in the tribunal and serve on the other parties their submissions as to costs, if any, by 4:00pm on 12 June 2020.
8. The parties must file in the tribunal and serve on the other parties their submissions in reply as to costs, if any, by 4:00pm on 30 June 2020.
9. Unless otherwise ordered by the Appeal Tribunal, any application for costs will be heard and determined on the papers, not before 30 June 2020.
APPEAL AND NEW TRIAL - .APPEAL – GENERAL PRINCIPLES - whether error in giving gender the same meaning as sex for the purposes of the Anti-Discrimination Act 1991 (Qld) (AD Act) – where treatment was use of male pronouns in reference to the applicant who identified as female - whether incumbent on Tribunal to find less favourable treatment was on the basis of the attribute of gender identity – whether error in failure to consider whether gender identity was a reason or substantial reason for the less favourable treatment – whether error in finding application of the COPD was the reason for the treatment - whether error in finding officer’s comment was a ‘factual comment’ - whether error in failing to consider submissions made regarding some matters in s 319G(3) of the Corrective Services Act 2006 (Qld) - whether error in finding use of male pronouns was reasonable within s 319G(2) of the Corrective Services Act – where treatment was the imposition of internal management plans (IMPs) - whether error in concluding the IMPs were to mitigate sexually-laden behaviour and not transgendered behaviour – whether error in finding imposition of IMPs was not on the basis of the attribute - whether error in failure to consider submissions made regarding some matters in s 319G(3) of the Corrective Services Act as to whether the imposition of IMPs was reasonable - whether error in finding treatment was reasonable within s 319G of the Anti-Discrimination Act – whether error in finding a term that the applicant ‘be a man’ could not and had not been imposed - whether error in failure to consider applicant’s submissions as to whether the term not reasonable under s 11 of Anti-Discrimination Act – whether error in failing to consider applicant’s submissions regarding some matters in s 319H(2) of Corrective Services Act - whether error in concluding imposition of term was reasonable within s 319H(2) of the Corrective Services Act – whether error in finding second respondent and third respondent did not act in bad faith within the meaning of s 319I of the Corrective Services Act.
DISCRIMINATION – DIRECT DISCRIMINATION – INDIRECT DISCRIMINATION – ATTRIBUTE OF GENDER IDENTITY – whether a biological male who identified as a woman was discriminated against while incarcerated in a male prison on the basis of ‘gender identity’ – whether use of male pronouns constituted unlawful discrimination – whether the imposition of internal management plans which required the applicant to ‘mitigate transgender behaviour’ constituted unlawful discrimination – whether treatment of the applicant by the respondents was ‘reasonable’ within the meaning of the Corrective Services Act – whether the treatment was in bad faith within the meaning of s 319I of the Corrective Services Act.
Anti-Discrimination Act 1991 (Qld), s 7(m), s 8, s 10, s 11, s 101, s 133, Schedule
Births, Deaths and Marriages Registration Act 2003 (Qld), s 23, s 24
Corrective Services Act 2006 (Qld), s 5A, Chapter 6, Part 12A, Part 12B, s 319B, s 319C, s 319G, s 319H, s 319I
Human Rights Act 2019 (Qld), s 108AB v Western Australia [2011] HCA 42; (2011) 244 CLR 390
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba [2019] FCA 1092.
IW v City of Perth (1997) 191 CLR 1
JM v QFG & GK [1998] QCA 228
Mandla v Dowell Lee [1983] 2 AC 548
New South Wales v Amery (2006) 230 CLR 174
Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697
NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11
Purvis v State of New South of Wales (Department of Education and Training) [2003] HCA 62
R (on the application of Wood) v Metropolitan Police Comr [2009] EWCA Civ 414; [2009] 4 All ER 951
R (on the application of AB) v Secretary of State for Justice [2010] 2 All ER 151
Re East; Ex parte Nguyen (1998) 159 ALR 108
Tafao v State of Queensland [2018] QCAT 409
Waters v Public Transport Corporation (1991) 173 CLR 349.
Wotton v State of Queensland (No 5) [2016] FCA 1457REPRESENTATION & APPEARANCES:
Applicant:
S Robb instructed by Caxton Legal
First Respondent:
Second and Third Respondents:
C Murdoch QC and E Shorten instructed by Crown Law
S Mackie instructed by Carter Newell
REASONS FOR DECISION
Leilani Tafao[1] (the applicant) makes application for leave to appeal and appeal the decision of the Tribunal dismissing her complaint that the respondents had contravened the Anti-Discrimination Act 1991 (Qld) (AD Act) by unlawfully discriminating against her on the basis of gender identity while she was incarcerated in a male, high security, prison.
[1]We will refer to the applicant as Ms Tafao and by female pronouns. By doing this we do not pre-judge any issue relevant to this matter.
Ms Tafao claimed that she was discriminated against by the officers’ insistence on referring to her by male pronouns and by the imposition of behaviour plans (Internal Management Plans referred to in these reasons for decision as ‘IMPS’) specifically devised for Ms Tafao which she alleges were aimed at mitigating her transgendered behaviour and which prevented her from “being who [she was]”.
Ms Tafao was imprisoned at the Southern Queensland Correctional Centre (SQCC) from 9 March 2015 to 5 November 2015. Ms Tafao is a transgender woman who was born a biological male but who has lived as a female since she was 13 or 14 years old. From approximately 15 years of age she has taken hormone therapy and in 2002 she had partial gender reassignment surgery. Ms Tafao is identified as a male on her Samoan birth certificate and as female on her New Zealand passport. On the Order of Transfer of a Prisoner prepared pursuant to s 68 of the Corrective Services Act 2006 (Qld) (the CS Act) and generated from information in the Integrated Offender Management System (IOMS) database, she is identified as male.
The SQCC is operated by Serco Australia Pty Ltd (Serco) pursuant to an agreement between the State of Queensland and Serco executed on 28 July 2011. Mark Walters, the third respondent, is a Director of the SQCC.
In Queensland, prisoners are sent to a prison depending upon whether their registered gender is female or male. Essentially that will depend upon biological factors, so that persons with male genitalia will be incarcerated in a male prison. We note that Ms Tafao has previously served a term of imprisonment in a female prison in New Zealand but requested to be transferred to a male prison because she found it easier to get along with men and that her time in prison was easier in a male prison.
The AD Act applies to prisoners subject to the modifications introduced in the CS Act. In particular, if discrimination occurs within the prison environment, it will not be unlawful if the treatment was ‘reasonable’ within the meaning of the CS Act. It is this notion of what is ‘reasonable’ in the context of an overcrowded, high-security, male prison that was at the heart of this matter.
Ms Tafao seeks to overturn the Tribunal’s decision on a number of grounds which raise questions of law and questions of mixed law and fact. On the basis leave to appeal is granted, Ms Tafao seeks to set aside the decision of the Tribunal and to substitute it with a decision of the Appeal Tribunal made according to law.
Statutory Overview
The AD Act protects against unfair direct and indirect discrimination on a ground or attribute set out in s 7 and in an area of activity set out in Part 4,[2] which includes in the administration of State laws and programs.[3]
[2]AD Act, s 6(2).
[3]Ibid, s 101.
Section 101 in Part 4 of the AD Act provides that:
Discrimination in Administration of State Laws and Programs Area
A person who
(a) performs any function or exercises any power under State law or for the purposes of a State Government program; or
(b) has any other responsibility for the administration of State law or the conduct of a State Government program;
must not discriminate in
(c) the performance of the function; or
(d) the exercise of the power; or
(e) the carrying out of the responsibility.
Section 7(m) prohibits discrimination on the basis of the attribute of ‘gender identity’. Gender identity is defined to mean, relevantly, that the person identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex.[4] Discrimination on the basis of an attribute (here, gender identity) is extended by s 8 to include discrimination on the basis of a characteristic that a person with the attribute generally has or that is often imputed to a person with the attribute.
[4]Ibid, Schedule.
Under the Births, Deaths and Marriages Registration Act 2003 (Qld) a person may register their re-assigned sex provided the relevant application is accompanied either by the statutory declarations of 2 doctors verifying that the person has undergone sexual reassignment surgery or a recognition certificate.[5] Upon registration a person will be a person of the sex as reassigned.[6] It is not necessary, in order for the protections of the AD Act to apply, that any medical or surgical intervention have taken place. The purpose of the AD Act is to ensure that a person is not treated differently in certain defined activities on the basis that, relevantly here, they identify as a member of the opposite sex. Put another way, a person has a right to identify as a member of the opposite sex if this is how they want to live their life, whether or not any medical or surgical reassignment procedures have been undertaken.
[5]Births, Deaths and Marriages Registration Act 2003 (Qld), s 23.
[6]Ibid, s 24.
The extent of the right to protection against discrimination based on gender identity is statutorily modified in the context of the prison environment by Part 12A of the CS Act.[7] These modifications were introduced by the Corrective Services and Other Legislation Amendment Act 2008 (Qld). The amendments were aimed at stemming an increasing number of complaints of discrimination made by offenders in relation to their treatment while in custody in circumstances where that treatment would be considered appropriate by the community and fair by the government given the operational constraints of the correctional environment.[8] This was to be achieved by imposing an extra requirement to be considered when determining whether the treatment of an offender was unlawful discrimination, in effect, as to ‘whether the treatment of the offender was reasonable within the unique correctional environment’.[9] This was said to require the Tribunal to ‘consider the same factors that correctional management do when deciding how to reasonably respond to an offender’s request’.[10]
[7]CS Act, s 319C.
[8]Second Reading Speech, Minister for Police, Corrective Services and Sport, JC Spence, MP, Corrective Services and other Legislation Amendment Bill, 1 May 2008.
[9]Ibid.
[10]Ibid.
Section 319B of the CS Act provides:
(1) The purpose of this part is to maintain a balance between—
(a) the financial and other constraints to which protected defendants are subject in their treatment of offenders; and
(b) the need to continue to respect offenders’ dignity.
(2) The purpose is achieved primarily by—
(a) requiring offenders to use internal complaints procedures provided by the department for complaining about an alleged contravention of the Anti-Discrimination Act before complaining under that Act about a contravention; and
(b) modifying the Anti-Discrimination Act’s application to the treatment of offenders by protected defendants.
Sections 319G and 319H modify the application of the AD Act by imposing an extra ‘reasonableness’ requirement for direct and indirect discrimination respectively, so that a protected defendant does not discriminate against an offender if the treatment is reasonable. In considering whether the treatment is reasonable, the tribunal must consider any relevant submissions made about any of the following matters: the security and good order of the corrective services facility; the cost of providing alternative treatment; the administrative and operational burden of alternative treatment; resources constraints; the need to respect offenders’ dignity; whether the treatment unfairly prejudices other offenders; and any other matter the tribunal considers relevant. The protected defendant has the onus of proving, on the balance of probabilities, that the treatment is reasonable.[11]
[11]CS Act, s 319G(4), s 319H(4).
The Explanatory Memorandum to the Corrective Services and Other Legislation Amendment Act 2008 (Qld) explains the purpose behind the introduction of sections 319G and 319H:
These sections [s 319G and 319H] make it clear that the correctional environment is unique and that any alleged discriminatory action or conduct must be considered within this context.
These provisions require the ADTQ to consider whether or not correctional management’s attempt to accommodate such a request was reasonable or not under the circumstances in relation to both direct and indirect discrimination cases.
Prison management in particular must have authority to make decisions to ensure the good order and security of corrective services facilities and the safety of the community, staff, visitors and offenders. It is due to the level of control over offenders that is required to ensure safety and security and the use of standard practices to facilitate this outcome that decisions are frequently questioned and complaints are regularly made by offenders.
Correctional authorities receive requests for special treatment from offenders on an almost daily basis. Corrective Services must be able to consider factors such as available resources, community expectations and fairness to other offenders when deciding whether to grant a request and to reach a compromise solution where necessary in order to maintain the security and safety of staff, visitors and offenders.
For example, a prisoner requests a kosher diet. The practical realities of operating a corrective services facility mean there is insufficient storage space to keep the kosher food separate from other foods, difficulties with preparing and cooking kosher meals separately and the human resources required to train staff to cook the meal appropriately causes administrative and operational burden. Therefore a decision is made to provide the prisoner with a pre-packaged frozen kosher meal.
While the frozen meal is not a fresh meal in line with what other prisoners are served it is adequate to meet the need of the offender to obtain a nutritionally balanced meal and fulfil their religious requirements.
However, what is expected by the prisoner is a fresh meal and the provision of the frozen meal by correctional management is not optimal in the prisoner’s view.
These sections require the ADTQ to consider the criteria set out as described, despite section 10 and 11(2) of the Anti-Discrimination Act 1991, in cases where the treatment complained of occurred while an offender was under the supervision of the Protected Defendant.[12]
[12]Explanatory Memorandum to the Corrective Services and Other Legislation Amendment Act 2008 (Qld), at 15-16.
Section 319I(2) of the CS Act provides that if the Tribunal decides a “protected defendant” contravened the AD Act in relation to an “offender”, the tribunal may make a compensation order only if it:
(a)finds that the contravention happened because of an act or omission done or made in bad faith; and
(b)considers that no non-compensatory order effectively redresses the offender for the contravention.
Non-compensatory orders are those, excepting an order for compensation, set out in s 209 of the AD Act.
We observe that the Human Rights Act 2019 (Qld) does not apply to an act or decision made by a public entity before its commencement, which was 1 January 2020.[13]
[13]Human Rights Act 2019 (Qld), s 108(2)(b).
We turn now to consider the decision of the Tribunal and the appeal grounds.
Decision of the Tribunal
Ms Tafao claims she was subject to unlawful discrimination while she was incarcerated at SQCC and that the acts or omissions constituting the direct or indirect discrimination were made in bad faith by the third respondent within the meaning of Chapter 6, Part 12A of the CS Act.
In relation to direct discrimination, the Tribunal made the following findings:
(a)The protected attribute was ‘gender identity’ (s 7(m));
Use of male pronouns
(b)A person who lives and seeks to live as a member of the opposite sex will refer to themselves by language associated with the sex or gender with which they identify and that is a characteristic of the attribute (s 8);
(c)The comparator is a cisgender male, that is, a person whose sense of personal identity and gender corresponds with their birth sex;
(d)The relevant ‘circumstances’ for the purposes of s 10 are that the comparator is: in a male prison; where the conduct of the prison is set in a statutory, policy and operational framework; and where the comparator desires to be addressed in accordance with his gender identity;
(e)That identifying a prisoner by reference to biological sex or gender, and not by gender identity, results in differential treatment of the cisgender male and the male prisoner who identifies as female. That is because the cisgender prisoner will always be addressed as a male and by male pronouns in accordance with his gender identity and the male prisoner who identifies as a female will never be addressed as a female and by female pronouns;
(f)The differential treatment was less favourable treatment because of the distress and offence caused by the treatment;
(g)However, the application of the Custodial Operation Practice Directive (COPD) as interpreted by the second and third respondents was the reason for the refusal to use female pronouns and the statement by Officer Ash was made as a statement of fact. The treatment was not on the basis of the attribute;
(h)In any event, the treatment was reasonable within the meaning of s 319G(2) of the CS Act. The security and good order of SQCC rendered it reasonable not to focus on ‘gender identity’ in dealing with Ms Tafao. While it was accepted that using male pronouns offended Ms Tafao’s dignity, other issues were the most pressing concerns and were reasonable in the circumstances. There were no submissions in relation to the balance of the matters referred to in s 319G(3) of the CS Act and paragraphs (b), (c), (e), (f), (i) and (j) are not relevant;
(i)The Tribunal further observed that the respondents had not acted in bad faith within the meaning of s 319I(2) of the CS Act: in Mr Walters case, he was motivated by a desire to protect Ms Tafao and facilitate the effective running of the prison.
Content of the IMPs
(j)The functional IMPs dated 3 July 2015 and 26 August 2015 addressed “sexually-laden behaviour” which is not a characteristic of gender identity and did not seek to mitigate Ms Tafao’s ‘gender identity’.
(k)For the purposes of the functional IMPs, the comparator was a cisgender male and the circumstances were that: the cisgender male is a prisoner in a male prison in 2015; the conduct of the prison is set in a statutory, policy and operational framework; and the comparator engages in aggressive and sexualised behaviour.
(l)The applicant did not claim, and the Tribunal did not find, that “sexualised behaviour” is a characteristic of gender identity or that being a victim of sexual assault is a characteristic of gender identity.
(m)The treatment given was the imposition of the IMPs with the objective of mitigating sexually-laden behaviour, through the use of a community transgender support group and a representative of the Samoan community.
(n)A cisgender male prisoner who exhibited sexualised behaviour would be disciplined and subject to an IMP. There was no less favourable treatment by the imposition of the IMPs.
(o)The treatment (imposition of the IMPs) was not on the basis of the attribute of gender identity but to curb identified undesirable and problematic behaviour.
(p)The treatment was reasonable to secure the safety of the applicant and to ensure the proper functioning of the prison within the meaning of s 319G(2) of the CS Act.
(q)There was no bad faith following earlier reasoning.
In relation to indirect discrimination the Tribunal made the following findings:
(a)The imposition of the IMPs did not result in the imposition of a term “to be a man”.
(b)Officer Ash’s comments did not impose a term that Ms Tafao “be a man” because the statements merely reflected how Officer Ash and the second and third respondents viewed her circumstances: that although she identifies as female, she is of the male biological sex/gender and in a male prison. These are statements of fact and do not impose a term that she “be a man”.
(c)To submit to a form of address consistent with her biological sex/gender, rather than her gender identity, arguably was a requirement to “be a man while being addressed” rather than being able to identify as a female and to be addressed as a female. However, no term was imposed because the applicant was a man.
(d)If the term was that the applicant “identify as a man” no term would have been imposed for the same reasoning.
(e)If the term was that Ms Tafao “identify as a man” it is possible to conclude the applicant could not comply because of the nature of her attribute. A higher proportion of prisoners without the attribute would be able to comply with the term.
(f)The term that Ms Tafao ignore her gender identity when being addressed was reasonable because it was imposed in compliance with the COPD for the security and good order of the prison and for the safety of the applicant. The term was reasonable under s 11 of the AD Act and s 319H of the CS Act.
(g)There was no bad faith on the part of the respondents in the imposition of any term or requirement for the same reasoning as before.
(h)If a contravention of the AD Act had occurred, the second respondent would be liable for the acts of its employee, the third respondent, pursuant to s 133 of the AD Act. The first respondent was, in turn, vicariously liable for the conduct of the second and third respondents.
Grounds of Appeal
There are five grounds of appeal. Grounds one, two and three raise issues of fact alone or of mixed law and fact and are brought under s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Leave to appeal is necessary.
Grounds four and five each involve various sub-grounds. While some of the sub-grounds raise questions of law for which leave is not required under s 142(1), other sub-grounds raise questions of mixed law and fact for which leave under s 142(3)(b) is necessary.
If leave to appeal is granted, appeals against a decision on a question of fact only, or of mixed law and fact, must be decided by way of rehearing.[14] Where error is demonstrated, the appeal tribunal’s power to intervene arises and the appeal tribunal is to decide the case on the law and facts existing at the time of the appeal and, subject to the findings of the member on credibility of witnesses, on its own assessment of facts.[15]
[14]QCAT Act, s 147.
[15]House v The King (1936) 55 CLR 499 at 505; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Committee (2000) 203 CLR 194 at 203-204.
The grounds of appeal are as follows:
1)The member erred in failing to take judicial notice of the meaning of the term ‘gender’ as distinct to the meaning of the term ‘sex’; [73].
2)The member erred in finding that ‘the applicant has the male gender because of her biological sex’: [175].
3)The member erred in finding that the applicant is a man: [178].
4)The member erred in finding the respondents did not directly discriminate against the respondent:
Pronouns and addressing the applicant as a man
A.Erred in finding that the second and third respondents’ conduct in using male pronouns to address the applicant was undertaken in compliance with the COPD: [80], [81], [86], [191].
B.Erred in finding that the less favourable treatment was not on the basis of the applicant’s attribute of gender identity: [85]-[88].
C.Erred in failing to consider the applicant’s submissions in relation to s 319G(3)(b), (c), (d), (e), (f), (h) and (j) of the CS Act; and erred in finding that the matters in those subsections are not relevant: [90].
D.Erred in finding the second and third respondents conduct in using male pronouns to address the plaintiff was reasonable: [89]-[91], [93].
E.Erred in finding that the second and third respondents did not act in bad faith: [94]-[100].
The impugned language in the IMPs
F.Erred in finding that there had been no direct discrimination of the applicant by the respondents ‘as a result of the objective in the IMPs that the applicant mitigate her sexually-laden behaviour’: [166].
G.Erred in finding that by the IMPs the second and third respondents did not require the applicant to ‘mitigate transgendered behaviour’: [156].
H.Erred in finding that a cisgender comparator in circumstances that are the same or not materially different would be treated in the same way as the applicant: [163].
I.Erred in finding the treatment was not on the basis of the attribute of gender identity: [164].
J.Erred in finding the respondent’s conduct was reasonable in the circumstances pursuant to s 319G(2) of the CS Act.
K.Erred in finding that there has been no bad faith: [167].
5)The member erred in finding the respondents did not indirectly discriminate against the applicant:
A.The member erred in finding that the respondents could not have imposed a term that the applicant be a man in circumstances where the learned member accepts that the applicant has the protected attribute of gender identity with the characteristics of ‘living and seeking to live as a member of the female sex and referring to herself as female and seeking to be referred to as a female and by feminine pronouns”: [62], [175], [177], [178].
B.The member erred in finding that no term was imposed on the applicant: [178].
C.The member erred in finding that the second and third respondents’ addressing of the applicant ‘by reference to her gender not gender identity and implicitly [requiring] the applicant to ignore her gender identity when being addressed’, was reasonable in the circumstances, pursuant to s 11 of the AD Act and s 319H(2) of the CS Act: [191], [193].
D.The member erred in finding that there had been no bad faith in the imposition of any term or requirement on the applicant: [194].
Ms Tafao’s submissions refer to the grounds of appeal raised by the application into five broad categories:
i.The member erred in failing to distinguish the meaning of the word ‘gender’ from the word ‘sex’ in the circumstances of the case. This created problems throughout the decision, concerned as it was with allegations of discrimination on the basis of gender identity (grounds 1-3).
ii.The member failed to find that the respondents unlawfully and directly discriminated against the applicant by persistently using male personal pronouns to address the applicant and in addressing the applicant as though she were a man (grounds 4(A)-(E)).
iii.The member failed to find that the respondents unlawfully and directly discriminated against the applicant by the contents of the Functional IMPs imposed on the applicant, in which she was referred to using the male pronouns and which sought to have her ‘mitigate transgender behaviour’ (grounds 4(F)-(K)).
iv.The member failed to find that the respondents unlawfully and indirectly discriminated against the applicant by imposing a term on the applicant that she be a man (grounds 5(A)-(C)).
v.The member erred in finding that, had there been a contravention of the Act, the respondents had not acted in bad faith (grounds 4(E), 4(K) and 5(D)).
[28] Each of the grounds of appeal is addressed below.
Ground 1: Failure to take judicial notice of the distinction between ‘gender’ and ‘sex’. Ground 2: Error in finding that applicant has the male gender because of her biological sex.
Ground 3: Error in finding the applicant is a man.
Grounds 1 and 2 relate to the issue of terminology and whether, because the member used ‘gender’ and ‘sex’ interchangeably, she proceeded on an erroneous basis.
Ms Tafao submits in effect that ‘gender’ and ‘gender identity’ mean the same thing, in other words, that a person’s gender is the gender with which he or she identifies. The Member did not hold that view, at least in the context of the AD Act and, in that respect, the applicant says the Member erred. The applicant submits:
Sex refers to biological sex and gender refers to gender identity. Sex is biologically essential; gender is a social construct. These matters were the subject of comprehensive submissions by the applicant at first instance. The applicant’s explanation of her case in contentions, at the hearing and in submissions depends on an understanding that sex and gender are distinguishable.
The respondents submit that the Member made clear her reasons for ascribing the meanings she did to the terms ‘gender’ and ‘identity’ and that her use of the terms in that way did not bear upon the matters in issue in the AD Act. The protection in the AD Act is misunderstood by the applicant. It was incorrect to say that the Member ignored submissions regarding the meaning of sex and gender, those submissions having been referred to at [73] of the Reasons.[16] Further, it is argued, the meaning based upon individual words should not be inferred where they are compounded in a statute. Here the compound phrase ‘gender identity’ is explicitly defined. The applicant’s attempt to ascribe a particular meaning to ‘gender’ in that context is misconceived.
[16]Tafao v State of Queensland [2018] QCAT 409.
Consideration of grounds 1, 2 and 3
The protected attribute of ‘gender identity’ is defined in the AD Act as follows:
gender identity, in relation to a person, means that the person –
a) identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex; or
b) is of indeterminate sex and seeks to live as a member of a particular sex.
The AD Act prohibits discrimination on the basis of ‘gender identity’, that is relevantly, on the basis that a person identifies as a member of the opposite sex by living or seeking to live as a member of that sex. The Act does not define ‘sex’ or ‘gender’.
The relevant distinction for the purposes of the relevant statutory definition of gender identity is between a person’s biological sex and the sex with which they identify which relevantly here, by the definition, must be the opposite sex. There is no need to go further and to explore, as the applicant seeks to do, the differences between ‘gender’ and ‘sex’.
The Member made clear that for the purposes of the decision she was using the terms ‘gender’ and ‘sex’ interchangeably to refer to biological sex:
The applicant has made submissions in relation to various definitions of sex, gender and gender identity. In this decision I intend to treat sex and gender as the same, that is as a reference to biological sex. I am clear in this decision that sex and gender are different to gender identity.[17]
[17]Ibid, [73].
The Member explained her rationale for doing so:
I have taken this course because of the evidence that in the SQCC prisoners are all of the male sex and prison records refer to the sex of prisoners by reference to the word ‘gender’. It would be too confusing to attribute a different definition to the word ‘gender’ than that understood and used by the respondents.[18]
[18]Ibid.
The Member’s usage of the terms as interchangeable was consistent with the respondents’ use of ‘gender’ to mean (biological) ‘sex’ in prison records. In assessing whether their treatment of the applicant was unlawful discrimination, what they understood by these terms was important. For example, the COPD at the material time provided that “all records must reflect the prisoner’s registered name and gender to ensure the accuracy and consistency of the prisoner’s identification”. The Integrated Offender Management System (IOMS) referred to the applicant as being of the male gender. From the perspective of the second and third respondents, gender meant the prisoner’s biological sex. The issue is whether in adopting that meaning of ‘gender’, the Member misapplied the relevant statutory provisions or misunderstood Ms Tafao’s submissions, thereby falling into error.
The Member did not misunderstand the concept of ‘gender identity’ as defined in the AD Act or that the applicant identified as female while being of the male biological sex. The Tribunal was not obliged to adopt Ms Tafao’s preferred definition of gender, which is not a defined term in the AD Act. The Member made it clear that she did not accept that the applicant became a female for all purposes because she identified as a female. The applicant’s submissions were, on the other hand, underpinned by the notion that the applicant’s gender was female because she identified as female. It is this difference of view which underpins grounds 1, 2 and 3.
In our view, the Tribunal’s approach to use of the terms sex and gender was immaterial to whether there had been discrimination on the basis that the applicant identified as a female. The important distinction, for the purposes of the decision, was between a person’s biological sex and the gender with which they identify. The Member was clear about the distinction and there was no error in that approach. When the Member concluded ‘the applicant has the male gender because of her biological sex’,[19] on any fair reading she did not mean that Ms Tafao identified as a male. Provided the Member was clear about that, which we find she was, there was no error in using the words ‘gender’ and ‘sex’ interchangeably.
[19]Ibid, [175].
Given our conclusion that the appropriate distinction for the purposes of the attribute of ‘gender identity’ is between a person’s biological sex and the sex with which they identify, we see no error in the Member failing to take judicial notice of the difference between ‘gender’ and ‘sex’. We therefore find no error disclosed by grounds 1 and 2.
The more difficult question is raised by ground 3, namely, whether the Member erred in finding that the applicant “was a man”. The Member said at [178]:
In relation to the use of male personal pronouns, Mr Walters required the applicant to submit to a form of address consistent with her gender, rather than her gender identity. Arguably, that is a requirement to be a man whilst being addressed, rather than being able to identify as a female and to be addressed as a female. The analysis confronts the same problem. How can it be a requirement to ‘be a man’ when one is a man? On this reasoning I find that no term or requirement has been imposed on the applicant.
A central tenet of Ms Tafao’s submissions is that she is a female, in particular, that her gender is female. The applicant submitted that a consequence of the Member equating ‘gender’ with ‘sex’ was that the Member concluded the applicant was a man which ‘sidelined’ the applicant and her submissions.[20]
[20]Applicant’s submissions at [31].
The Member did not accept that a person, by application of the AD Act, became the ‘gender’ she identified with. We agree with that proposition. The AD Act does not go that far. Its purpose is to protect a person against discrimination on the basis of the attribute of gender identity. Legislation which provides for the registration of a change to the official records of a person’s sex exists in each of the states and territories. In Queensland, pursuant to s 23 of the Births, Deaths and Marriages Registration Act 2003 (Qld), a person may apply after sexual reassignment surgery, to have a recognition certificate issued which identifies the person as having undergone sexual reassignment surgery and being of the sex stated in the certificate. This may be noted in the person’s entry in the register of births. The AD Act protects the attribute of gender identity which applies irrespective of whether a person has undergone any sex reassignment procedures.
The Member’s conclusion, that the applicant was a man, is not an error if by that she meant the applicant was a biological male. On a fair reading of her reasons, we accept that the Member was referring to the applicant’s biological status. This is consistent with the Member’s observations elsewhere that the applicant identified as a female but that this did not make her a female for all purposes. There was therefore, in context, no error in finding the applicant was a man. However, the Member reasoned further as follows:
“How can it be a requirement to be a man when one is a man? On this reasoning I find that no term or requirement has been imposed on the applicant.”[21]
[21]Tafao v State of Queensland [2018] QCAT 409, [178].
The problem inherent in this reasoning lies not in a conflation of gender and sex, but in failing to apply Ms Tafao’s identity as a female (thereby giving content to the protected attribute of gender identity) rather than her biological sex/gender, in applying the AD Act. This was, in our view, an error of law.[22]
[22]Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697 at [59]-[63].
The clearest example of the error was in relation to indirect discrimination and the alleged imposition of a term by the respondents, that the applicant “be a man”. The Member found the term, that is, that the applicant be a man, was not a requirement which could be imposed because the applicant was already a man. The finding was, essentially, that you could not impose a requirement to be something you already were. The Member made it clear that she considered the applicant to be a man because, as she inferred on the basis of the evidence of the third respondent, the applicant was a biological male.[23] So, for the purposes of determining whether the term could have been imposed, the Member adopted the applicant’s sex, rather than the gender with which Ms Tafao identified. We do not consider this to be a fair construction of the applicant’s suggested term: that the applicant be a man. That is, the question was whether a term or requirement was imposed on Ms Tafao to ‘be a man’ in circumstances when she identifies as a woman (irrespective that she was born a biological male). Alternatively, and in our view more properly, a broad construction of the term should have been applied, namely, that the applicant identify as a man. This interpretation is more consistent with the substance of the applicant’s complaint and submissions.
[23]Tafao v State of Queensland [2018] QCAT 409, [7].
Having said that, the Member did consider in the alternative a broader formulation of the term or requirement, that is, to “deny her gender identity when being addressed”.[24] The Member said:
In the end, I cannot help but think the alleged requirement to ‘be a man’ is just another way of saying that the applicant should ignore her gender identity.[25]
[24]Ibid, [179].
[25]Ibid, [180].
However, the Member concluded in relation to the re-formulated term that it too had not been imposed. The Member said, in this respect:
In relation to the use of male personal pronouns, Mr Walters required the applicant to submit to a form of address consistent with her gender, rather than her gender identity. Arguably, that is a requirement to be a man whilst being addressed, rather than being able to identify as a female and to be addressed as a female. The analysis confronts the same problem. How can it be a requirement to ‘be a man’ when one is a man? On this reasoning I find that no term or requirement has been imposed on the applicant.[26]
[26]Ibid, [178].
In our view, and with respect to the learned Member below, this approach is flawed. The requirement being considered here was not to ‘be a man,’ but the re-formulated term to ‘identify as a man’ while being addressed. In our view, in the statutory context, namely provisions that protect gender identity, it is not consistent with the purpose of s 11, to say that the term to “identify as man” could not be imposed because the applicant is a man. The term as reformulated was a requirement that Ms Tafao identify as a man. This term could be imposed on Ms Tafao, a person with the protected attribute of gender identity, because she does not identify as a man. The applicant’s gender identity was the relevant reference point when considering whether a term relating to gender identity had or could have been imposed.
The Tribunal’s approach failed to recognise that the effect of the term was to prevent a person from living as a member of the opposite sex, that is, was about denying their gender identity, not about denying their biological sex. Further, this approach left no scope for the application of the protected attribute of ‘gender identity’. The question was not whether a male who identified as a female could be required to ‘identify as male’ in circumstances where they were male. The question was whether a male who identified as a female could be required to ‘identify as male’ in circumstances where they identified as a female. In other words, for the purposes of the protected attribute of “gender identity”, the issue of whether such a term had been imposed needed to be considered from the perspective of that person’s gender identity, not their biological sex.
The identification of an appropriate reference point for the purposes of s 11 must take into account the applicant’s attribute, here ‘gender identity’, otherwise the exercise required by s 11 does not involve consideration of the significance of having the attribute to the question of a complainant’s ability to comply with the term. That is, a construction and application that fails to take into account the attribute in applying s 11 would be to avoid the very sort of wrong which the AD Act was intended to redress.[27]
[27]Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165.
Accordingly, we find that there was an error in applying s 11 in the context of the protected attribute of ‘gender identity’ by reference to the finding that the applicant was a biological male, in particular, that a term that the applicant be a man or identify as a man could not and was not imposed because the applicant was a man. This error is the error alleged in grounds of appeal 5(A) and 5(B), which are discussed further below. However, there was no error as articulated in ground 3.
Accordingly, grounds 1, 2 and 3 do not reveal any error.
Grounds 4(A)-(D): Direct Discrimination – pronouns and addressing the applicant as a man
The applicant submitted that the Member erred in finding:
·the use of male pronouns was undertaken in compliance with the COPD (ground 4(A));
·the less favourable treatment was not on the basis of the attribute (ground 4(B));
·the matters in s 319G(3)(b), (c), (d), (e), (f), (h) and (j) of the CS Act were not relevant and erred in failing to consider the applicant’s submissions in relation to those matters (Ground 4(C));
·the conduct in using male pronouns was reasonable (ground 4(D));
·the second and third respondents did not act in bad faith (ground 4(E)).
The applicant argued that the Member erred in her construction of the COPD and that the treatment was not sanctioned by the COPD. It followed, it was argued, that the COPD could not have been the real reason for the treatment.
The applicant submitted that, once the Member found the applicant had been treated less favourably because she had been called by a pronoun that did not correspond with her gender identity, it was incumbent on the Member, applying s 10, to determine whether that less favourable treatment was ‘on the basis of’ an attribute.[28] This, it was argued, required the Member to find the real reason for the treatment. The applicant disagreed with the Member’s finding that the real reason for the treatment was the application of the COPD.[29] The applicant submits that the reason for the less favourable treatment was not the application of the COPD but rather a “myopic insistence on refusing to respect and acknowledge the applicant’s gender identity”.[30] The failure by the Member to even consider whether the applicant’s gender identity and its characteristics were a reason for the less favourable treatment was, it was argued, an error.
[28]Applicant’s submissions at [46].
[29]Ibid at [82].
[30]Ibid at [57].
Finally, the applicant submits that the Member erred in failing to consider the applicant’s submissions regarding whether the treatment was reasonable within the meaning of s 319G(3) of the CS Act and erred in finding that the matters in s 319G(3)(b), (c), (e), (f), (i) and (j) were not relevant without having regard to submissions made with respect to those matters. The submissions of the applicant regarding the matters in s 319G(3)(b), (c), (d), (e), (f), (g), (h) and (i) were relevant and, together with the submissions concerning s 319G(3)(a), compelled the conclusion that the conduct was not reasonable and that the respondents failed to prove on the balance of probabilities that it was reasonable.
The respondents submit that the Member’s finding was that it was the third respondent’s application of the COPD that was the basis of the unfavourable treatment. The Member did not consider or find whether the second or third respondent had in fact complied with the COPD.
The respondents submit, in relation to the Member’s application of s 319G(3) of the CS Act, by pinpointing paragraph [90] of the Reasons, that the Member’s approach was taken out of context. The CS Act, s 319G was only relevant if the Member found s 10 of the AD Act applied. The respondents argue that, in any event, the Member referred to evidence relating to the ‘good order’ of the prison (which is referable to s 319G(3)(a)) and, although the Member refers to the lack of submissions regarding the other grounds in s 319G(3), was aware of the other grounds and excluded them in the context of the facts she was dealing with. Although the Member did not expressly refer to the submissions by the applicant on the other grounds in s 319G(3), the respondents submit that it was clear the Member was fully conscious of those other considerations and sought to balance the considerations by her reference to the applicant’s evidence.
Consideration of grounds 4 (A)-(D)
The COPDs are not statutory instruments. The purpose of them is to act as a guide for staff, to reduce down to an operational level the CS Act and Corrective Service Regulations.[31]
[31]T 2-12.
The particular terms of the COPD were, at the relevant time, as follows:
Staff will address transgender prisoners:
·With the same respect given to all other prisoners.
·By either the name that they are currently registered as having (refer Births, Deaths and Marriages Registration Act 2003) or the name on a Warrant committing the prisoner to a Corrective Services facility or requiring a prisoner to be produced to the General Manager of a Corrective Services facility.
All records must reflect the prisoner’s registered name and gender to ensure the accuracy and consistency of the prisoner’s identification.
‘Transgender’ is defined in the COPD as follows:
Transgender is a term used to describe all those whose gender identity is at odds with their biological sex.
The Member observed that, on one view, by addressing all prisoners by reference to their registered gender, there was no differential treatment. However, the Member found there was differential treatment based on the following alternative analysis:
However, always identifying a prisoner by reference to gender and never by reference to gender identity will always result in differential treatment of the cisgender male prisoner and the male prisoner who identifies as a female. That is because the cisgender male prisoner will always be addressed as a male and by male pronouns, in accordance with his gender identity and the male prisoner who identifies as a female will never be addressed as a female and by female pronouns. Different treatment results from uniform application of the COPD to all prisoners.[32]
[32]Tafao v State of Queensland [2018] QCAT 409, [82].
The Member concluded that this constituted less favourable treatment in circumstances that are the same or not materially different within the meaning of s 10 of the AD Act.
We find this categorisation of the treatment to be an error of law. The treatment of Ms Tafao was not less favourable than the treatment of the comparator. All biologically male prisoners were called by male pronouns. This was the same treatment for all, but it resulted in a different impact for Ms Tafao, a prisoner born a biological male who identifies as female. This, in our view, is potentially indirect discrimination, not direct discrimination.
In Purvis v New South Wales (Department of Education and Training),[33] the High Court held that the Disability Discrimination Act 1992 (Cth) makes separate and distinct provision for direct and indirect discrimination and that, while it was open to an applicant to plead the same conduct constituted direct discrimination, and, in the alternative, indirect discrimination, the proper characterisation of the conduct was a matter for the court on the basis that the same conduct could not constitute direct discrimination and indirect discrimination.
[33][2003] HCA 62; 217 CLR 92 at [185]
The learned Member’s approach led her to find that the complaint about the use of male pronouns was potentially direct discrimination. That said, the Member ultimately concluded that the treatment was not direct discrimination because it was not done on the basis of the attribute and was reasonable within the meaning of s 319G(2) of the CS Act.
We turn then to consider the appeal grounds relating to direct discrimination and the use of male pronouns based on the Member’s approach.
In relation to the first of those grounds, ground 4(A), we do not agree that the Member found the conduct was undertaken in compliance with the COPD. Although that is arguably said at [191] of the Reasons, it is not, on a fair reading of the reasons for decision overall, what the Member found. In paragraphs [80]-[81] of the Reasons the Member makes clear that while the third respondent considered he was complying with the COPD, in her view, the COPD was not ‘crystal clear’. The Member makes no finding as to the proper interpretation of the COPD. The Member finds that it was the second and third respondents’ application of the COPD based on their construction of it that was the basis of the treatment.[34] Accordingly, ground 4(A) does not identify an error made by the Tribunal.
[34]Tafao v State of Queensland [2018] QCAT 409, [86].
The second ground, (ground 4(B)) alleges the Member erred in effect in finding that the application of the COPD was ‘the basis for’ the less favourable treatment within the meaning of s 10 of the AD Act, rather than the attribute of gender identity. The learned Member accepted that the respondents understood the COPD to provide that the prisoners were to be referred to by their name and according to their registered gender. The respondents relied on the information they were provided through the IOMS database which recorded the applicant’s gender as male.
The Member found that the respondents referred to Ms Tafao by male pronouns because they were applying the COPD as they interpreted it. The relevant parts of the decision below are as follows:[35]
[35]Ibid, [79]-[88].
[79] The second and third respondents’ submission is that to refer to a prisoner by reference to their gender, not by reference to their gender identity, was treatment consistent with the requirements of the State of Queensland as set out in the COPD. As the COPD was applied to all prisoners, there was no differential treatment which could be less favourable.
[80] The third respondent’s evidence is that he considered he was complying with the COPD in refusing to address the applicant by reference to her gender identity. The COPD is not crystal clear on that point. However, I can see how the requirement that all records must reflect the prisoner’s gender to ensure consistency of identification could be construed as meaning that the gender noted in the prison’s records is to be used consistently whenever the prisoner is identified, and that identification includes addressing or naming a prisoner.
[81] On that construction of the COPD there is support for the submission of the second and third respondents that refusing to address the applicant by reference to her gender identity was not different and less favourable treatment of the applicant than the comparator, because all prisoners are identified by their gender alone.
[82] However, always identifying a prisoner by reference to gender and never by reference to gender identity will always result in differential treatment of the cisgender male prisoner and the male prisoner who identifies as a female. That is because the cisgender male prisoner will always be addressed as a male and by male pronouns, in accordance with his gender identity and the male prisoner who identifies as a female will never be addressed as a female and by female pronouns. Different treatment results from uniform application of the COPD to all prisoners.
[83] I find that this differential treatment is less favourable to the applicant because of the distress and offence caused by the treatment.
[84] I find that the applicant has been treated less favourably than the comparator in circumstances that are the same or not materially different.
Was the treatment on the basis of the attribute?
[85] All parties agree that determining if the treatment was ‘on the basis of the attribute’ as set out in s 10 of the Act, is tested by asking what the real reason for the treatment is. [fn Tung v State of Queensland [2013] QCAT 251, [26]-[50].14
[86] The applicant submits that there could be no other reason for the deliberate denial of the applicant’s gender identity than her known gender identity. I reject that submission because of the evidence of Mr Walters and Mr Shaddock, which I accept, that application of the COPD was the reason for refusal to use female pronouns in relation to the applicant.
[87] The Respondents submit that the statements by Officer Ash, which are impugned by the applicant, were made because as a statement of fact. That is, the prison is in fact a male prison. Based on the evidence of Mr Walters, I accept that submission.
[88] I find that the treatment was not on the basis of the attribute.
The concept of direct discrimination is defined by s 10 of the AD Act. Section 10 relevantly provides:
(1) "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.
Example—
R refuses to rent a flat to C because—
• C is English and R doesn’t like English people
• C’s friend, B, is English and R doesn’t like English people
• R believes that English people are unreliable tenants.
In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality, is correct.
(2) It is not necessary that the person who discriminates considers the treatment is less favourable.
(3) The person’s motive for discriminating is irrelevant.
Example—
R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.
(4) If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
(5)……
Section 10(1) has been interpreted as requiring the treatment to be ‘on the basis of’ the attribute which has been interpreted to mean that the attribute must be the “real reason” or the “true basis” for the less favourable treatment.[36] The basis for this approach has been cases from other jurisdictions relying on different statutory formulations, for example, Waters v Public Transport Corporation[37] and Purvis v State of New South of Wales (Department of Education and Training).[38] In both Waters and Purvis, the relevant statutory provisions each expressly required a causative element to be satisfied before direct discrimination was established.
[36]Tung v State of Queensland [2013] QCAT 251 at [32]-[48].
[37](1991) 173 CLR 349.
[38][2003] HCA 62
That said, the view that s 10(1) requires the less favourable treatment be shown to be “on the basis of” the attribute is also supported by JM v QFG & GK,[39] where Davies JA held:
By s 10(1) 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. By subs (4) if there are two or more reasons why a person treats or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment. The effect of the application of subs (1) and (4) to the present facts, in my view, is that the second respondent directly discriminated against the appellant if and only if a substantial reason for his refusal of treatment was either her lesbian sexual activity or her exclusive lesbianism.[40]
[39][1998] QCA 228.
[40]Ibid at 8; at 21, per Pincus JA.
Accepting, as we do, that it is necessary to find the attribute was the “basis of” the less favourable treatment, we turn to consider the meaning of “on the basis of”. The phrase “on the basis of” should not be read in a way which defeats the objectives of the AD Act.[41] Those objectives are to be ascertained from the nature, scope and terms of the statute. In our view, whether the differential treatment was ‘on the basis of’ gender identity requires examining the actual or real basis for the conduct, by considering the matters on which the conduct turned.[42] While the mental processes of the respondents will assist with that enquiry, it is not necessary that the person who discriminates considers the treatment is less favourable,[43] or that their motive was to discriminate.[44]
[41]IW v City of Perth (1997) 191 CLR 1 at 52.
[42]Wotton v State of Queensland (No 5) [2016] FCA 1457 at [551].
[43]AD Act, s 10(2).
[44]Ibid, s 10(3).
In our view, the phrase “on the basis of” should be interpreted as meaning the same as “based on”, “due to” or “because of” or similar phrases: that is, it is to be interpreted as meaning ‘to bring something about or cause it to occur’.. The meaning of “based on” was considered recently in Barngarla Determination Aboriginal Corporation RNTBC v District Council of Kimba[45] in the context of s 9(1) of the Racial Discrimination Act 1975 (Cth). Section 9(1) provides:
9 (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
[45][2019] FCA 1092.
There, in construing s 9(1), it was held, relevantly, as “settled in the authorities”:
(g) the term “based on” does not connote a relationship of cause and effect, whether in a “but for” or in any other sense. It signifies that the discrimination must be “on” racial grounds: Gerhardy v Brown at 81 (Gibbs CJ). In Macedonian Teachers’ Association at 27, Weinberg J said:
[The] expression [“based on”] does not, of itself, suggest a relationship of cause and effect. It suggests rather a relationship of a different and broader kind. The links between the elements connected by this expression must, no doubt, be real and tangible, but not necessarily causal in nature. To ask whether the manner in which the complainant was treated is in any way referable to his race, colour, descent or national or ethnic origin is not necessarily to ask whether these characteristics “caused” the impugned conduct.
This reasoning was endorsed on appeal: Victoria v Macedonian Teachers’ Association of Victoria Inc [1999] FCA 1287; (1999) 91 FCR 47 at [8] and by the Full Court in Bropho v Western Australia [2008] FCAFC 100, (2008) 169 FCR 59 at [67]-[68]. It means that there must be an examination of the actual basis for the conduct, by considering the matters on which the conduct did turn: Wotton at [551]; and
(h) there must be a close relationship between the designated characteristic and impugned conduct: Macedonian Teachers’ Association at 33.
We find that there was indirect discrimination by application of the COPD which resulted in the imposition of a term or practice whereby the applicant was required to ‘be a man’ or ‘to identify as a man’. This term could not be complied with by the applicant because in order to do so she needed to compromise her ‘gender identity’.[86] A higher proportion of prisoners without the attribute could comply with it. Finally, in our view, having taken into account relevant submissions about factors in s 319H(2) of the CS Act, the term was not reasonable under s 11(1)(c) of the AD Act.
[86]Mandla v Dowell Lee [1983] 2 AC 548 at 565-566.
The term was not reasonable for the following reasons:
(i) First, the use of the word ‘she’ would have been consistent with the need to respect Ms Tafao’s dignity.
(ii) The use of the word ‘she’ could have occurred with little or no resource implications.
(iii) Nor would the use of the word ‘she’ have imposed any significant administrative or operational burden on the respondents.
(iv) We also do not consider that the evidence showed it would have exposed Ms Tafao to any undue safety risks or would have been disruptive to the good order of the prison.
(v) Finally, we note that since Ms Tafao’s complaint, the COPD has been amended so that now any transgender prisoners are to be referred to in a manner consistent with the gender with which they identify.
Although we find that there was indirect discrimination by the use of male pronouns in addressing and referring to Ms Tafao, we do not find any reason to disturb the findings of the Member that there was no bad faith on the part of the respondents. For that reason, it follows that a remedy of compensation is not available, by the terms of the CS Act, to Ms Tafao.[87]
[87]CS Act, s 319I.
Under s 319I of the CS Act the tribunal may make a compensation order only if it finds that the contravention happened because of an act or omission done or made in bad faith and it considers that no non-compensatory order effectively redresses the offender for the contravention. A non-compensatory order is defined in s 319I(5) to mean an order under s 209(1) of the AD Act other than a compensation order under s 209(1)(b).
There were no submissions on appeal regarding the appropriate relief should we find a contravention of the AD Act. The applicant in the hearing below sought the following orders:
(a)Under s 209(1)(b) requiring the respondents to pay her an amount as compensation for loss or damage caused by the contraventions being an amount for the stress, hurt and humiliation and psychological distress suffered;
(b)Under s 209(1)(d) requiring the respondents to make a private apology to her;
(c)Under s 209(1)(f) requiring the first respondent to implement policies for the non-discriminatory treatment of transgender prisoners.[88]
[88]Applicant’s outline of submissions filed 22 March 2018 at [215].
Although the Member below found no contravention had occurred and that, if it had, there was no bad faith on the part of the respondents, she did go on to consider the question of what an appropriate award of compensation would have been. The learned Member arrived at an amount of $20 000 but based on a hypothetical finding that both the use of male pronouns and the imposition of the IMPs constituted unlawful discrimination.
The Member below held as follows:
[211] The applicant’s evidence in chief is that during her imprisonment and for a month or two afterwards she felt depressed and experienced suicidal thoughts. She attributes these feelings to her treatment in prison. The applicant gave evidence that by the time of the second IMP she ‘became a shell of who I was and who I had been up until that point’.
[212] The applicant was not cross examined in relation to how she felt.
[213] The applicant did not call any medical evidence to support her claims.
[214] The first respondent submits that the applicant gave no evidence as to how she felt in respect of the two claims actually agitated before the Tribunal. The applicant’s affidavit was affirmed before the further amended contentions were filed in October 2017 which limited the claim to the Pronoun and IMP issues. The point is made that it is possible the applicant’s feelings related to the other matters previously raised by her in the proceeding. The second and third respondents make similar submissions.
[215] The first respondent says that the onus is on the applicant to prove a clear causal link between a contravention of the Act and any injury.43 It is submitted that the Tribunal has no clear link between the alleged contraventions and the impact on the applicant.
[216] The applicant seeks an award of damages in the range of $30,000.00-$50,000.00, consistent with the approach taken in Richardson v Oracle.
[217] I am very reluctant to make an award of damages for what is a medical condition which encompasses depression and suicidal thoughts without medical evidence as to the nature and extent of the injury and its cause. I do not think a statement from an applicant as to her psychological condition achieves an appropriate level of proof.
[218] I am prepared to accept that the applicant was offended and distressed by the use of male pronouns and wording in the IMPs. On the state of the evidence I cannot find that these matters caused an injury resulting in a medical condition.
[219] If it were appropriate to make an award in favour of the applicant I would do so on the basis that she had suffered hurt and humiliation. It is appropriate to make an award consistent with the Tribunal’s own previous decisions.45 I accept the first respondent’s submission that the only comparable case is that of Sinden v State of Queensland where an award of $20,000.00 was made.
[220] Had contraventions of the Act been made out I would have awarded $20,000.00 inclusive of interest
In addition to an award of compensation Ms Tafao sought an order that the respondents make a private apology to her and that the first respondent be required to implement policies for the non-discriminatory treatment of transgender prisoners. We are prepared to make an order that a private apology be made to Ms Tafao in respect of the use of male pronouns. We have set out the circumstances of the contravention above. There was, as we have said, a contravention with respect to the use of male pronouns, albeit without bad faith. Accordingly, the statutory requirements for the making of a compensatory order are not satisfied. Weighing up all the circumstances of the contravention, it seems appropriate to us, in these circumstances, that a private apology be made. Given the revised COPD which requires that transgender prisoners be addressed in a manner consistent with their gender identity in all communications with the prisoner, verbal and written, and with third parties, we do not make an order for the implementation of policies in the broad terms proposed by the applicant.
For the reasons above, there is no power in the Tribunal to make a compensation order. Had we been required to make an order for compensation we turn to consider the issue of the appropriate amount of such compensation. We have set out the Member’s reasoning above. We find no basis on which to disturb the Member’s conclusions regarding the appropriate level of compensation. However, given we have found only one basis for finding unlawful discrimination, namely the use of male pronouns, it is necessary for us to determine how much of that amount is attributable to the use of male pronouns as opposed to the imposition of the IMPs.
Doing the best we can, and recognising the absence of submissions on the point, we regard the imposition of the IMPs as potentially a more serious contravention and, doing the best we can, we would attribute $12 500 for the imposition of the IMPs, had that constituted unlawful discrimination, and $7 500 for the use of the male pronouns.
The learned Member found that had a contravention of the AD Act by the second and third respondents been established, then s 133 of the AD Act would operate to render the first respondent liable. There is no basis upon which we would find otherwise. We adopt that finding and find that the first respondent is vicariously liable for the established contravention.
Orders
Accordingly, we make orders to the following effect:
(i) Leave to appeal is granted;
(ii) The appeal is allowed.
(iii) The Tribunal’s decision is set aside.
(iv) It is declared that, in respect of the use of male pronouns to refer to the applicant, the first respondent, second respondent and third respondent are jointly and severally liable for unlawful indirect discrimination against the applicant in contravention of s 101 of the Anti-Discrimination Act 1991 (Qld).
(v) The complaint in relation to the imposition of internal management plans is dismissed.
(vi) The respondents must make a private apology pursuant to s 209(1)(d) of the Anti-Discrimination Act 1991 (Qld) in relation to the use of male pronouns in addressing or referring to the applicant.
We also make directions for the parties to file any submissions as to costs and for the other parties to file any submissions in response. Unless otherwise ordered, a decision on costs will be made on the papers without a further oral hearing.
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