Williams v Independent Pub Group T/A Brahma Lodge Hotel & Williams v Stephens - [2014] SAEOT 1

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
WILLIAMS v INDEPENDENT PUB GROUP T/A BRAHMA LODGE HOTEL & WILLIAMS v STEPHENS
[2014] SAEOT 1
Judgment of Her Honour Judge Cole, Member Ms A Bachmann and Member Mr D Shetliffe
19 May 2014
HUMAN RIGHTS - DISCRIMINATION
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - SEX DISCRIMINATION
Complaint lodged with the Equal Opportunity Commissioner and referred to the Equal Opportunity Tribunal for determination. The complainant alleged discrimination by the respondents on the basis of gender identity.
Held:
The complainant did not establish the factual basis for a claim of sexual harassment under the Equal Opportunity Act 1984 against either respondent. The complainants’ claim of discrimination on the basis of ‘chosen gender’ must fail as the complainant does not fall within the meaning of ‘chosen gender’ for the purposes of the Act. The complaint’s claim is dismissed.
Equal Opportunity Act 1984 (SA) s 5, s 29, s 39 and s 87, referred to.

WILLIAMS v INDEPENDENT PUB GROUP T/A BRAHMA LODGE HOTEL & WILLIAMS v STEPHENS
[2014] SAEOT 1
HER HONOUR JUDGE COLE, MEMBER BACHMANN AND MEMBER SHETLIFFE

The complainant, Mr Williams, made complaints to the Commissioner for Equal Opportunity relating to the Brahma Lodge Hotel and, particularly, to the alleged conduct of Mr Scott Stephens, who was a barman at the hotel at the time of the events complained of. The Independent Pub Group trades as the Brahma Lodge Hotel. We will refer to the corporate defendant as “the Hotel”. The Commissioner referred the complaints in relation to both the Hotel and Mr Stephens to the Tribunal. The complaints were heard together. The Hotel accepts that it is vicariously liable for the acts of Mr Stephens.
The Complaint
On the complaint form lodged with the Commissioner, Mr Williams said that the Hotel “provides goods and services to me”. In the section of the complaint form which asks “Why are you complaining to the Commission?” Mr Williams ticked the box for “Do you believe you have been discriminated against because of your gender identity”, indicating that he believed that he had. In his complaint, Mr Williams set out the following:[1]
[1]    The complaint is set out precisely as it was written
I am referring to 25/8/11 Thursday night. The manager and bar attender (Scott). On that night I was requested by a friend (Leanne) to attend her birthday party dressed in Drag costume as a female. I wanted to go to toilet and started walking towards female toilet.
1.   Earlier in the night Scott sprayed me with water from behind the bar using soft drink hose.
2.   As I was going to toilet Scott yelled out from behind the bar, across the room, that I was not to use female toilets and I had to use male toilets
3.   After calling out Scott came from behind the bar. He came close to me making comment in reguards to the way I was dressed and laughing at me.
4.   Scott stated he was following the managers direction in this matter.
5.   Scott made negative comments towards me to other patrons and called out on occaisions in regards to the way I was dressed.
6.   Scott pulled his shirt up infront of me and played with his nipple
Overall I felt intimaded and embarrassed and became scared of the outcome of the night. By Scott yelling across the room that attracted unwanted comments from other patrons that where in hotel. Further more I felt Scott descriminated against me by the acts he displayed towards me.
Previously when I have dressed in drag I have been requested to use ladies toilets for my own safety.
As a result of this night I would like an opoligy with $10,000 compensation for the embarrassing stigma that Scott displayed towards me in front of friends and other patrons. I felt his negative attension was uncalled for and belittling. Scott and the manager should display professionally in there conduct to patrons of the hotel regardless to how the patron dresses. The attension singled me out and I felt uncomfortable, angry that they would behave in this manner.
I am worried and afraid that The brahma lodge hotel will not allow me to go to the hotel again because of this matter.
After the matter was referred to the Tribunal, further particulars of the complaint were sought and provided. In the particulars of his complaint against Mr Stephens, Mr Williams alleged that Mr Stephens had “subjected the complainant to sexual harassment” on 25 August 2011, when the complainant attended the Brahma Lodge Hotel dressed as a woman in these ways:
Scott threatened to spray the complainant with liquid from behind the bar using a soft drink hose;
Scott pulled his shirt up in front of him and played with his own nipple. He thrust out his tongue repeatedly in a lewd manner.
In his particulars in relation to Mr Stephens, the complainant said that he got the impression that Mr Stephens was laughing at him with another patron, called “Corey”.
In his particulars in relation to the Hotel, Mr Williams said, among other things:
3.The respondent provides access to bar facilities at the Brahma Lodge Hotel where regular 8 ball competitions were held in 2011 on Thursday nights.
4.The complainant regularly attended the 8 ball competitions on Thursday nights in 2011.
5.The Thursday night 8-ball community, including numerous staff of the respondent, knew that the complainant dressed as a female (at times) and that he was employed as a female performer at the Mars Bar.
6.When the complainant is dressed as a female, he identifies on a genuine basis as a woman. For example, he would not expect people to use bad language in his presence when he is dressed as a female, he would have a feminine manner and would expect to use female toilets.
7.The complainant is bi-sexual.
8.The respondent is vicariously liable for acts of its employee, Scott Stephens (“Scott”), during the course of his shift as a bar attendant at the Brahma Lodge Hotel on the evening of 25 August 2011.
9.Scott treated the complainant less favourably that a non-chosen gender person on 25 August 2011 in the following ways:
9.1     by requiring the complainant, while dressed as a female, not to use the female toilet but to use the men’s toilet instead; and
9.2     in the aggressive way Scott told the complainant that he was not permitted to use the women’s toilets.
10.Drag is associated with western gay culture.
11.Scott appeared to the complainant to feel threatened or offended by the complainant dressing in drag.
12.Scott treated the complainant less favourably on the ground of his sexuality on the evening of 25 August 2011 in the following ways:
12.1   by making negative comments about the complainant to patrons and calling out to the complainant loud criticisms of the way he was dressed (in drag);
12.2   in the aggressive way Scott told the complainant that he was not permitted to use the women’s toilets;
12.3   by pulling his own shirt up in front of the complainant, playing with his own nipple and poking out his tongue repeatedly in a lewd manner while making eye contact with the complainant;
12.4   by laughing at the complainant’s appearance;
12.5   by threatening to squirt the complainant with liquid from a soft drink hose;
12.6   by not calling hotel patron ‘Corey’ to order when Corey repeatedly and aggressively called the complainant ‘nothing but a fucking poofter’;
12.7   by laughing and joking with Corey when they were repeatedly looking in the complainant’s direction;
12.8   by not amending his behaviour or apologising after the complainant said ‘you filthy pig’, ‘I can’t go into the men’s toilets. I will have to hold it’, and ‘I will see you in Court’;
12.9   by not suggesting the option of using the disabled toilet until the complainant was walking out the door of the pub to go home;
13.No-one else attending the 8-ball competition in the front bar on 25 August 2011 was required to put up with loud, aggressive abuse from patrons and ridicule from Scott.
14.Scott subjected the complainant to sexual harassment in the course of his work as a bar attendant supplying drinks and overseeing the 8 ball competition on the evening of 25 August 2011 in the following ways:
14.1   Scott threatened to spray the complainant with liquid from behind the bar using a soft drink hose;
14.2   Scott pulled his shirt up in front of him and played with his own nipple. He thrust out his tongue repeatedly in a lewd manner.
15.This behaviour was in response to the complainant attending the hotel dressed as a woman and singing happy birthday to another member of the 8 ball community (because Scott had not behaved this way toward the complainant previously);
16.In response to Scott threatening to squirt the complainant with a hose, man-handling his own breast and poking out his tongue repeatedly, the complainant said to Scott ‘you filthy pig’.
17.After the complainant sat down with Leanne Croucher at a table, Scott held up a hose a second time. He was swinging the hose while Scott was talking to the offensive patron, Corey. The complainant was concerned that Scott would squirt him with the hose at this time. The complainant got the impression from Scott and Corey’s behaviour that they were talking about him and laughing at him.
18.As the complainant left the pub that evening with his friend, Bill Papadopoulos, the complainant said to Scott ‘I will see you in Court’. Corey commented ‘you won’t win the case so don’t bother’ and Scott replied ‘you could have gone to the disabled toilet’.
19.The complainant felt offended, humiliated and intimidated by Scott’s sexual harassment. Previously when the complainant has dressed as a woman, he has been requested to use the ladies toilets for his own safety.
20.The complainant felt belittled by Scott’s behaviour which occurred in front of some of the complainant’s friends and other patrons. The complainant felt singled out, uncomfortable and angry that Scott and some patrons would behave in this manner.
21.The complainant says that a reasonable person, having regard to all the circumstances, would have anticipated that he would be offended, humiliated or intimidated by Scott’s conduct because Leanne Croucher told him ‘just ignore it’ and early in the evening he had told Scott ‘you filthy pig’.
The Act
The Act[2] provides, in s 87(6) and (9), in so far as they are relevant:
[2]    Equal Opportunity Act 1984 (SA)
(6)It is unlawful for a person to subject another to sexual harassment in the course of –
(a)     offering or supplying goods to that other person; or
(b)     offering or performing services to which this Act applies for that other person:
(9)For the purposes of this section –
(a)     a person sexually harasses another (the person harassed) if –
(i)the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(ii)engages in other unwelcome conduct of a sexual nature in relation to the person harassed,
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated; and
(b)     conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing; …
The Act provides, relevantly, in relation to discrimination:-
39(1)     It is unlawful for a person who offers or provides –
(a)goods; or
(b)services to which this Act applies,
(whether for payment or not) to discriminate against another on the ground of sex, chosen gender or sexuality –
(c)by refusing or failing to supply the goods or perform the services; or
(d)in the terms or conditions on which or the manner in which the goods are supplied or the services are performed.
29(2a)   For the purposes of this Act, a person discriminates on the ground of chosen gender–
(a)if he or she treats another unfavourably because the other is or has been a person of a chosen gender or because of the other’s past sex; or
…
(c)if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of a chosen gender, or on the basis of a presumed characteristic that is generally imputed to persons of a chosen gender; or
(d)if he or she requires a person of a chosen gender to assume characteristics of the sex with which the person does not identify; or
(e)if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.
(3)     For the purposes of this Act, a person discriminates on the ground of sexuality –
(a)if he or she treats another unfavourably because of the other's sexuality or past sexuality; or
…
(c)if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of the other's sexuality, or presumed sexuality, or on the basis of a presumed characteristic that is generally imputed to persons of that sexuality; or
(d)if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.
The Act provides, in s 5(5):
For the purposes of this Act, a person is a person of a chosen gender if –
(a)the person identifies on a genuine basis as a member of the opposite sex by assuming characteristics of the opposite sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the opposite sex; or
(b)the person, being of indeterminate sex, identifies on a genuine basis as a member of a particular sex by assuming characteristics of particular sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the particular sex.
The Act provides, in s 5:
sexuality means heterosexuality, homosexuality or bisexuality;
The Evidence
The complainant gave evidence in his own case. He did not seek to call any other witnesses.
The complainant is now 56 years old. His evidence was that he has been dressing as a woman from time to time since he was 25 years old. In evidence, he said:[3]
[3] Transcript p 4-5
QSince first dressing as a woman when you were 25, how frequently have you dressed up.
AI go to The Fringe and all these other places, like the Mars Bar and stuff like that and do drag shows. I was invited to the Mars Bar by Malt Biscuit.
Her Honour
QThat’s not an answer to the question. The question was how frequently – so how many times a year.
AThursday nights, every Thursday night.
QEvery Thursday night.
AYes.
XN
QOn any other occasions.
AOnly Thursday nights and The Fringe and The Feast that they have.
For about eight weeks prior to 25 August 2011, on a weekly basis, the complainant participated in an eight ball tournament at the Brahma Lodge Hotel. For those eight or so weeks, he attended at the hotel for the tournament dressed as a man. He met a group of people, including a person called “Leanne”, and the barman, Scott. The complainant spoke about the fact that he sometimes dressed in “drag”, Leanne asked him to come to her birthday celebration at the Brahma Lodge Hotel on 25 August 2011, dress in drag and sing “Happy Birthday” to her.
Early in the evening of 25 August 2011, the complainant dressed in two dresses (a black dress underneath a blue dress), stockings, high heels and a wig and makeup. At about 7.45pm, the complainant went to the Brahma Lodge Hotel with his friend, Bill Papadopoulos. The complainant waited outside the hotel and Mr Papadopoulos went in to fetch Leanne. Leanne came out with a cake and gave it to the complainant. She lit the candles and then went back into the hotel. The complainant then brought the cake into the hotel, singing “Happy Birthday”. The complainant put the cake down and sat with Leanne and her friends.
In evidence, the complainant said that at some point after he had sat down, he turned to see Scott, the barman, holding a dripping hose in his hand. The complainant said:[4]
AIt’s the way he was holding it and looking at me at the same time, he had his tongue poked out at the same time as he was holding it and then he lifts up his shirt and started playing with his boob.
QWhere was the water going, was there water coming out of the hose.
AYeah there was, it was dribbling out, it wasn’t pouring out, it was just drizzling out.
QWhere was that going.
AInto the sink, I think it was.
[4] Transcript p 7-8
The complainant said that, after that, the complainant stood up and moved toward the ladies toilets. He said that Scott then said to him “You effing can’t go into that toilet”.[5] The complainant said:[6]
A… Scott turned around and said, ‘You effing can’t go into the ladies toilet, you’ve got to go into men’s toilet’, and I said, ‘Well, I can’t go into the men’s toilet’ and then I turned around to him and said, ‘Well, I will not go into the men’s toilet’, but I ended up going in there but I couldn’t go to the toilet in there because the floor was filthy, totally dirty in there. There was like urine all over the floor, or water all over the floor, that’s classed as urine to me. But that’s was like… I just could not go in there. So I came back out, sat down by Leanne and said to Leanne, I said, ‘I’m going now’ and then just as I was walking out the door, I turned around and said, ‘Well, I’ll see you in court then because –…’
A…and then Scott turns around and said, ‘You effing won’t get anywhere’ and then two other guys, like, Corey and Leanne’s boyfriend, ganged up on me and said, ‘You effing won’t get anywhere’ and I just walked out the door and said, ‘Well, fine’. Jumped in my car and went home and I was howling all the way home, I wasn’t impressed.
[5] Transcript p 8
[6] Transcript p 11-12
The complainant said that, on previous evenings at the hotel, Mr Stephens had called him a dickhead, a wanker and a jerk.
The complainant’s evidence was that it was his understanding, based on his experience at other licensed premises, that it was a “rule” that men in drag were to use the ladies’ toilets. He said that when he was at the Brahma Lodge Hotel dressed as a man, he would use the men’s toilets.[7]
[7] Transcript p 18
Later in the complainant’s evidence, he said:[8]
Q… When he said you can’t go to the toilet, the ladies toilets, had he spoken prior to that to you that night.
AWell he chatted with me and I just looked over and he said you know ‘You look ravishing…’… to do to a drag queen. You don’t whistle at a drag queen. You might talk to them, you don’t whistle at them.
[8] Transcript p 15
Initially, in cross examination, the complainant said that he was bisexual and that he considered himself to be “half man, half woman”.[9] Later, in cross examination, however, the complainant said that he only had sex with men, and then he said that he only had sex with his partner, who is male.[10] In cross examination, the following exchange took place:[11]
[9] Transcript p 19
[10] Transcript p 21
[11] Transcript p 21
QDo you consider yourself to be trans-sexual.
AYes. If I had a choice I’d have that operation and turn into a woman, that’s how I feel right now.
XXN
QYou gave evidence that you dress as a woman to perform drag shows.
AYeah.
QWhen you do that, when you perform at the Mars Bar and I think you mentioned the Fringe as well.
AYeah.
QThe purpose of doing that is to be entertaining isn’t it.
APardon, I didn’t –
QThe purpose of you dressing up to perform in drag, is to entertain the people who are watching.
AThat’s correct, yes.

In cross examination, the complainant said that the reason he had wanted to go to the toilet was to take off the outer, blue dress to reveal the black dress beneath.[12] The complainant denied that he knew that there were toilets for the disabled at the Brahma Lodge Hotel, and he further denied that Scott told him that he could use those toilets.
[12] Transcript p 23
Mr Williams said that he had never been back to the Brahma Lodge Hotel since the incident, and that he had been “walking around my house like a zombie since this happened”.[13] Mr Williams indicated in evidence that, since the incident, he had been too upset to do his usual performances at the Mars Bar.[14] However, later in his evidence, he said that he was, in fact, still performing in drag at The Fringe and at the Mars Bars on Thursday nights.[15]
[13] Transcript p 13
[14] Transcript p18 line 24
[15] Transcript p 34
Scott Stephens gave evidence in the respondents’ case. Mr Stephens said that he began working at the Brahma Lodge Hotel in 2010 as a maintenance worker, then progressed to working in the bottle shop and finally, in 2011, began working in the bar as a barman. As a barman at the Hotel, Mr Stephens came to know Mr Williams and other customers who were playing in the eight ball competition on Thursday evenings. Mr Stephens said that in the weeks before 25 August 2011, Mr Williams dressed as a man whilst attending at the hotel. Mr Stephens recalled Mr Williams telling him that he performed as a drag queen on Thursday nights at the Mars Bar.[16] Mr Stephens said that, he did not draw any conclusions about Mr Williams’ sexuality, based upon what Mr Stephens told him about performing as a drag queen.
[16] Transcript p 38
Mr Stephens’ evidence was that Leanne told him that Mr Williams would be attending the hotel in drag on 25 August 2011 to help her celebrate her birthday. Between 7.15pm and 7.45pm, Mr Williams arrived at the hotel, dressed in a blue dress, a blonde wig and make-up. Mr Stephens said, in evidence:[17]
[17] Transcript 41-42
QCan you describe to the best of your recollection what he did when he arrived at the pub.
ANo, because I was serving another customer when he walked in, so I had my attention elsewhere.
QPrior to this incident with the toilets do you recall having any interaction with James on that night.
AHe’d come to the bar and got a drink of water and I laughed because he was in drag, you don’t obviously see that in a pub too often. Now, that wasn’t anything against him, it was just me being, you know, me, unfortunately. He got a drink, walked back over and stood next to Leanne.
QDid James appear to you to be upset.
ANo, not at all.
QWas he enjoying himself.
AHe looked like he was, yes.
QDid you say anything to James prior to the incident with the toilets.
ANo.
QYou’ve heard Mr Williams’ evidence that at one point he saw you standing with a hose, that water was dribbling out of the hose behind the bar and that you pulled your shirt up and that you rubbed your breast, while poking out your tongue and looking at him.
AIncorrect, the gun as said, [sic] is a post mix gun we use to dispense soft drink and water for patrons. If I had the gun in my hand I probably would have serviced a customer or was pouring myself a drink at the time. And as for pulling up my shirt, there was no possibility of that because I wear a shirt underneath tucked in a button up shirt.
Mr Stephens denied being rude to Mr Williams prior to 25 August 2011. He denied calling Mr Williams a dickhead, a wanker or a jerk at any time. In cross examination, Mr Stephens said, in effect, that his laugh expressed his surprise at the effect of seeing a drag queen at the Brahma Lodge Hotel. It was not intended to be rude.
Mr Stephens expressed a tolerant view towards gay people and people who dress as the opposite sex. He agreed that he had a sense of humour and enjoyed his rapport with his customers when he worked at the hotel.
In examination in chief, Mr Stephens said:[18]
QTell me to the best of your recollection about the incident where James attempted to use the female toilets.
AThe incident from my recollection is I was at the TAB area, which is a distance say from the window to the door where the judges are sitting, and it was peripheral vision to my right and I saw James walk around and I yelled out ‘James wait’, and then I have approached him and I said ‘You can’t use the female toilets’, because I’d noticed two young girl who’d going in – and their dad, who I was serving at the time, had noticed Mr Williams walking towards the female toilets. I then said ‘You can use the males toilets or the disabled toilets at the front of the hotel’.
QThe father you mentioned, how did he react.
AHe didn’t react, as such, he’s walked around the bar, he didn’t get involved in any sense, he just stood in the background. He saw I handled the situation, and his children had walked out in the meantime and they were on their way.
[18] Transcript p 43
Mr Stephens said that Mr Williams objected, saying that he didn’t feel safe in the men’s toilets and that he had been told “by other pubs” to use the female toilets. Mr Stephens denied swearing at Mr Williams in the course of their exchange about the toilets. He did volunteer, however, that his voice might have been louder than necessary when he called out to Mr Williams to stop him going towards the ladies toilets. Mr Stephens agreed that Mr Williams called him “a filthy pig” when Mr Stephens would not relent and added “See you in Court”. Mr Stephens said that Mr Williams was obviously upset at being told that he could not use the ladies toilets. Mr Stephens said that Mr Williams stayed at the hotel for some time after that. However, Mr Stephens did not speak to him again. Immediately after his exchange with Mr Williams, Mr Stephens telephoned the duty manager to speak to him about what had just happened. Mr Stephens said that he was nowhere near Corey or Leanne’s boyfriend, and he did not observe Mr Williams leave the hotel that night.[19]
[19] Transcript p 45
Mr Stephens said that Mr Williams came to the hotel again on the following Thursday night for the eight ball competition. He said that, on that night, he approached Mr Williams and apologised for any embarrassment he had caused Mr Williams the week before. Mr Williams did not respond to the apology. Mr Stephens said that Mr Williams attended at the hotel for another two weeks, but then stopped. On the last occasion that Mr Williams was at the hotel, Mr Stephens said that he said to Mr Stephens that he could no longer speak to him and that he’d got a lawyer and was going to Court.
Mr Stephens said that, in preventing Mr Williams from going to the ladies toilets, he was concerned about the girls, who he thought were about 12 to 14, who were in the ladies toilets at the time, and the women in the bar as well, who Mr Stephens thought, might be uncomfortable with a “noticeable male”[20] going to the ladies toilet. He said that Mr Williams had never told him that he considered himself genuinely to be female.
[20] Transcript p 47
Mr Monaghan, a regular customer of the hotel who was present in the bar on 25 August 2011, gave evidence in the respondent’s case. Mr Monaghan said that he drew Mr Stephen’s attention to the fact that Mr Williams was heading in the direction of the ladies toilets. Mr Monaghan sits at the bar when he drinks at the hotel, and, apart from the times when he goes outside to smoke, or goes to the toilet, he is constantly observing the barman. He said that he did not see Mr Stephens make any gestures, such as rubbing his nipple, whilst looking at Mr Williams, and nor had he ever heard Mr Stephens call Mr Williams an abusive name or swear at him. Mr Monaghan recalled Mr Williams playing eight ball whilst in drag, though Mr Williams denied, in evidence, that he had done so. Mr Monaghan did not notice anyone go to the ladies toilets just prior to Mr Williams walking in that direction.
Burden of Proof
In order to succeed in his complaint against the respondents, the complainant must prove the factual basis for his case on the balance of probabilities.
Sexual harassment
The relevant sections of the Act in relation to sexual harassment are set out above. As we understand his case, the complainant alleges that Mr Stephens unlawfully sexually harassed him, in the manner in which he supplied Mr Williams with the services of a hotel, by engaging in unwelcome conduct of a sexual nature, namely, the alleged holding of the drink hose, whilst poking out his tongue and then lifting his own shirt and rubbing his own nipple.
There are inconsistencies between the allegations initially made by the complainant in his complaint and the evidence he gave at the hearing before us. In his complaint, which he signed on 1 September 2011, the complainant said that Mr Stephens had sprayed him with water from behind the bar with a soft drink hose. In his evidence, Mr Williams did not mention any such incident, but complained that Mr Stephens held the hose while it dripped into the sink, and that this was sexually suggestive, when combined with the alleged poking out of Mr Stephens’ tongue and the pulling up of his shirt. In his complaint, Mr Williams said that, after he had prevented him from going to the ladies toilet, Mr Stephens approached him, making comments about the way he was dressed and laughing at him. Mr Williams complained that Mr Stephens called out to other patrons in relation to Mr Williams. The account Mr Williams gave in evidence was rather different from his account in his complaint. We understand that the incident complained of occurred some years prior to trial. It may be that Mr Williams’ ruminations upon that evening have led to some embellishments of the incidents in his mind. We find, however, that his evidence was unreliable in many respects.
Mr Stephens admitted laughing when he first saw Mr Williams in drag, but it was the incongruity of seeing a man dressed as a woman in the Brahma Lodge Hotel which prompted the laughter, and not any intention to cause offence, humiliation or intimidation to Mr Williams. It seems to us that Mr Stephens’ laughter was a spontaneous reaction to an unfamiliar event in familiar surroundings. It was not deliberate. Pursuant to the Act, in order for a course of conduct to constitute sexual harassment in the manner relevant in this case, the conduct must be such that “a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated”.[21] In the circumstances of this matter, a reasonable person, who was experiencing a spontaneous reaction, simply would not have directed his or her mind to the potential reaction of the other person. The opportunity for anticipation simply does not arise where a reaction is spontaneous. Part of the context for Mr Stephens’ reaction is that he understood, quite reasonably, that Mr Williams dressed in drag in order to be entertaining. Mr Williams had told Mr Stephens that he did shows at the Mars Bar. He had not mentioned dressing as a woman in any other context and, indeed, there is no evidence that he does so. We do not consider that Mr Williams’ laughter, in context, constituted sexual harassment. We note, in any event, that Mr Stephens’ laughter upon first seeing Mr Williams was not the subject of any complaint by Mr Williams.
[21] s 87(9)(a) of the Act
Mr Stephens denied doing anything with the drinks hose which could have constituted sexual harassment, and he denied pulling his shirt up and playing with his nipple or poking out his tongue. He denied saying anything to Mr Williams which could constitute sexual harassment. Mr Monaghan, who was sitting at the bar, said that he saw and heard nothing directed at Mr Williams, except for the discussion about whether he could use the ladies toilets.
Mr Williams has not established, on the balance of probabilities, any conduct directed at him which falls within the definition of sexual harassment under the Act.
Discrimination
Mr Williams complains that he was discriminated against on the basis of chosen gender by Mr Stephens when Mr Stephens prevented him from using the ladies toilets. In s 5(5), the Act describes a person who is a person of a chosen gender.
For the purposes of this Act, a person is a person of a chosen gender if –
(a)the person identifies on a genuine basis as a member of the opposite sex by assuming characteristics of the opposite sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the opposite sex; or
(b)the person, being of indeterminate sex, identifies on a genuine basis as a member of a particular sex by assuming characteristics of particular sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the particular sex.
Mr Williams is male. His evidence was that, in his own mind, he is half male and half female, but there was no evidence, medical or otherwise, that, physically, Mr Williams is anything other than what he appears to be, which is male. At the trial, Mr Williams dressed as a male, and had well groomed facial hair which was inconsistent with any attempt to appear to be female. Mr Williams said, in evidence, that, if he could afford it, he would start the process of a sex change. Implicitly, he has not begun such a process, and nor did he give evidence of any imminent, realistic plans to do so.
We accept that Mr Williams regularly, perhaps as frequently as weekly, dresses up in women’s clothes, shoes and makeup to perform at the Mars Bar and elsewhere. There was no evidence, however, that Mr Williams dresses in women’s clothes, shoes and makeup other than to perform. He is neither living, nor seeking to live, as if he were a woman. He describes himself as a “drag queen”. This is play acting as a woman. It is implicit in the concept of “chosen gender” in s 5(5) that the choice to dress as a member of the opposite sex is taken for much of the time, on an enduring basis. A person of chosen gender chooses to live, for much if not all of the time, in the manner of the gender he or she was not identified with at birth. Performing as a drag queen for a few hours a week is not a case of chosen gender. It is not intended, by the concept of chosen gender in the Act, to include a person who chooses to dress as a woman for the purpose of giving a performance once a week for a few hours.
Mr Williams is not a person of chosen gender. He cannot succeed in a claim for discrimination on the basis of chosen gender under the Act.
Summary and Conclusion
The complainant has not established the factual basis for a claim for sexual harassment under the Act, on the balance of probabilities. As a result of the inconsistencies between the complainant’s evidence and the substance of his complaint, together with the contrary evidence of Mr Stephens and Mr Monaghan, we are unable to be satisfied of the occurrence of any events which constituted sexual harassment under the Act.
The complainant’s claim for discrimination on the basis of chosen gender must fail because he was not, at the time of the incident, a person of chosen gender within the meaning of the Act.