Barrister Charles Price examines a recent case in Australia involving alleged discrimination against a transvestite, and looks at the equivalent law in the UK in an employment context.
Luck certainly wasn’t a lady for transvestite Paul Hurst recently, when he was rejected from a casino for being dressed ‘inappropriately’. Last month, The Age reported from Australia in its article, ‘Stuck Between a Frock and a Card Place’ that Hurst, or Anne Marie to his friends, had been asked to leave a casino because of his appearance. Australian lawyers are now debating whether transvestites are protected in law.
Hurst and a friend had donned their dresses for a night out at the casino. Unfortunately he found his way barred by two bouncers on the night. A security guard had deemed him to be a ‘man’ and ‘inappropriately dressed’, when he was refused entry to the casino at 9.15pm in November 2006.
Hurst filed an action alleging the casino has discriminated against him because of his sexual gender and was refused service and asked to leave. He told the panel of the Administrative Decisions Tribunal (Equal Opportunity Division), that “I have always regarded myself as a woman and lived my life as a woman”.
The casino changed it’s stance at the initial hearing claiming that that Hurst was “wearing an extremely short skirt that barely covered his groin region, white underwear and garters … were visible”.
Previous evidence provided stated, however, that it was Hurst’s friend, ‘Russell’, who was inappropriately dressed in the short red skirt and white pants and garters, and that Hurst had been welcome to stay.
Transgender cases
Deputy president of the Administrative Decisions Tribunal, Nancy Hennessy, granted an order to obtain a copy of the casino’s security video of the incident. The solicitor for the casino told Hurst that, under the anti-discrimination act, the tribunal can only hear transgender cases.
“The anti-discrimination act does not protect transvestites, it protects transsexuals, but you said you live as a woman,” Hennessy said. “Before the tribunal can hear the case what you have to be able to prove to the court is that sexually you are a transsexual.”
The parties have been asked to reappear before the tribunal in July to resolve the matters.
In the UK, discrimination against transsexuals in an employment or vocational context has been unlawful in Britain since 1 May 1999 (under the Sex Discrimination (Gender Reassignment) Regulations 1999).
Discrimination against homosexuals (ie discrimination on grounds of sexual orientation) in an employment or vocational context became unlawful in Britain on 1 December 2003 (under the Employment Equality (Sexual Orientation) Regulations 2003).
Even before May 1999 (for transgender persons) or December 2003 (for homosexuals) a person who had been discriminated against on grounds of change of sex or on grounds of sexual orientation could, in appropriate circumstances, claim for a breach of human rights under the Human Rights Convention.
The Gender Recognition Act 2004 allows people who change sex the right to marry in their acquired gender and be given new birth certificates that recognise the acquired gender.
Although the law has not been tested with regards to transvestites it would seem that they do not fall into either strict category of trans gender or necessarily homosexual. However, this is not to say that a company which allows staff to bully their colleagues will not fall foul of the law.
It is important for organisations to introduce anti-bullying and harassment training and policies covering the treatment of transvestites to avoid facing tribunal proceedings.
Charles Price is a barrister. For more information, please visit www.charlesprice.net
