Tafao v State of Queensland & Ors

The matter involved a transgender woman prisoner, Ms Tafao, who was incarcerated in a male correctional facility. Ms Tafao was subject to various conditions, including being referred to by male pronouns and required to mitigate certain behaviours, which she argued amounted to direct and indirect discrimination under the Anti-Discrimination Act 1991 (Qld). The case was heard by the Supreme Court of Queensland, which was required to determine if Ms Tafao's treatment constituted discrimination based on her gender identity, a protected attribute under the Act, and if so, whether the state was vicariously liable for the actions of the prison officers.

The primary legal issue the court needed to resolve was whether the conditions of Ms Tafao’s incarceration constituted direct or indirect discrimination under the Anti-Discrimination Act. Ms Tafao argued that being referred to by male pronouns and required to mitigate behaviours contrary to her gender identity amounted to less favourable treatment than cisgender male prisoners. Additionally, she contended that the requirement to be referred to as a man, despite her gender identity, constituted direct discrimination. The court also needed to consider whether the state could be held vicariously liable for the discriminatory actions of prison officers.

The court found that while the conditions of Ms Tafao’s imprisonment were restrictive and did cause her significant distress, they did not amount to direct or indirect discrimination as defined by the Act. The court held that being referred to by male pronouns and the requirement to mitigate certain behaviours did not result in less favourable treatment compared to cisgender male prisoners, as the conditions applied uniformly to all prisoners regardless of gender identity. Additionally, the court ruled that the requirement to be referred to as a man did not constitute direct discrimination as it was based on legal gender, not gender identity. Regarding vicarious liability, the court found that the state was not liable for the discriminatory actions of the prison officers, as the conditions were part of the standard operating procedures of the correctional facility.

The court dismissed the application and ordered the parties to file and serve any submissions in relation to costs by specified dates. The First, Second, and Third Respondents were required to submit their cost submissions by 4pm on 3 December 2018, and the Applicant was to submit her cost submissions by 4pm on 17 December 2018.