Equal Opportunity Tribunal of New South Wales CITATION: May-Welby -V- Capital Q Pty Ltd And Hamilton-Wolf [1997] NSWEOT COMPLAINANT: Norrie May-Welby FIRST RESPONDENT Capital Q Pty Ltd RESPONDENT: SECOND RESPONDENT Tori Hamilton-Wolf NUMBER: 33 of 1997 Mr Graeme Innes ( Judicial Member ) TRIBUNAL: Ms L Nemeth De Bikal Mr L Lau GROUNDS OF COMPLAINT: Transgender vilification DATES OF HEARING: 06/06/1997 DATE OF JUDGMENT: 08/12/1997 Complainant: Self Represented LEGAL REPRESENTATIVES: Respondent: Ms S Winters (Counsel) JUDGMENT IN FAVOUR OF: 1: INTRODUCTION This matter relates to a complaint lodged under ss38R and 38S of the Anti-Discrimination Act NSW ("the Act") by Norrie May-Welby against Tori Hamilton-Wolf and Capital Q Weekly alleging vilification on the grounds of transgender. The complaint was lodged with the President of the Anti-Discrimination Board and, after investigation, was dismissed by the President of the Board under s90 of the Act. The complainant then chose to have the matter referred to the Equal Opportunity Tribunal for a determination under s91. The matter was set down for hearing by the Tribunal on 6 June 1997. The Tribunal had only a postal address for the first respondent and, despite numerous attempts, she was unable to be located. She was therefore not in attendance at the hearing. The complainant was not represented, and the second respondent was represented by Ms Sylvia Winters of Counsel. This decision relates to an application by the second respondent for dismissal of the complaint under s111 of the Act. The decision was given verbally on the day of the hearing, and this written version was made available to the parties some weeks afterwards, once the transcript had been received and corrections made. 2: STATUTORY PROVISIONS The relevant provisions of the Act are sections 38A, 38R, 38S and 111 of the Anti-Discrimination Act 1977. These are set out below- "38A Interpretation A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person: (a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or (b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or (c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex, and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person." "38R Definition In this Division: public act includes: (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, or (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, or (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of: (i) a person on the ground that the person is a transgender person, or (ii) a group of persons on the ground that the members of the group are transgender persons. 38S Transgender vilification unlawful (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of: (a) a person on the ground that the person is a transgender person, or (b) a group of persons on the ground that the members of the group are transgender persons. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 111. (1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint. (1A) The Tribunal may dismiss a complaint if satisfied that the person or (in the case of a complaint made on behalf of more than one person) each person on whose behalf the complaint was made does not wish to proceed with the complaint. (1B) The Tribunal may amend a complaint made on behalf of more than one person to remove a person as a person on whose behalf the complaint was made if the Tribunal is satisfied that the person does not wish to proceed with the complaint. (2) Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry." 3: EVIDENCE AND SUBMISSIONS The respondent firstly submitted that the complaint should be dismissed under s111 because the complainant did not meet the definition of a transgender person as set out in s38A of the Act. The complainant, when cross-examined, currently identified as a member of both sexes or no sex. However, in the past the complainant had identified as a member of the opposite sex to the one indicated by physical characteristics at that time. The Tribunal found that the complainant did meet paragraph (b) of s38A in that the complainant had previously identified as a member of the opposite sex by living as a member of the opposite sex. It was not relevant that this occurred prior to the passage through Parliament of these provisions of the Act. The critical timing issue for the introduction of the transgender provisions was when the alleged act of vilification occurred. The relevant issue of Capital Q in which the letter was published is clearly dated subsequent to their passage. In making that finding, the Tribunal relied on the wording of the legislation as well as the objects of the Act which supported a broad and beneficial interpretation of those provisions. It also relied on the similar provisions of the Act relating to discrimination on the ground of a person's disability. These provisions included a disability which was a past disability, and it would be ludicrous to exclude people whose disabilities had occurred prior to the passage of these provisions. This would certainly not have been the legislative intent. The alleged act of vilification was constituted by a letter signed by Tori Hamilton-Wolf and published in Capital Q Weekly in November 1996 following the passage of the provisions of this legislation. It read as follows- "A Hard Look I would like everybody to know that TLC - which took over Gender Centre counselling - should look at themselves and other tranys who want hormone surgery and to see other doctors for help. TLC and the other persons writing letters to your paper are just cocks in frocks, plus one screwed up sex change who is not happy with her/its body. Get a life Norrie and Aidy! Sixty-five percent of tranys live their lives as women every day, all day. TLC should stop hurting tranys' lives and grow up. Norrie should grow some hair and get a normal job and wear some normal clothes. Tranys just want to be normal people and do not want your crap. I am a normal girl, who hates to see tranys messed up. If you want to be a girl, be one, not an Oxford St sex worker trany with no life, just sex work. Those who aren't tranys should not get involved. TLC and Ms Darling should all look at their own lives. Tori Hamilton-Wolf" The letter was one of a large amount of correspondence relating to a debate within the transgender community about control of the Gender Centre in Petersham. The second respondent tendered issues of Capital Q dated 2 August 1996, 16 August 1996, 30 August 1996 and 20 September 1996 which included numerous items of correspondence on the subject. The particular letter complained about made some references to Norrie and Adie and the Tribunal found that, taken in the context of the series of correspondence on the issue, Norrie was able to be identified as the complainant in this matter. The complainant had been the main protaganist in the debate, and had a number of her letters published. In them, she had expressed her views with regard to the running of the transgender centre, and made comments about individuals who had written on the subject. The second respondent submitted that the complaint should be dismissed under s111 for three reasons; firstly, because the content of the letter did not constitute a vilification as defined in the provisions of the Act; secondly, that, if it did, it was not on the ground that the person referred to was a transgender person; and thirdly, that if both those submissions were unsuccessful, the letter fell within the exception set out in s38S(2)c, being "an act in the public interest, including discussion or debate about and expositions of any act or matter." The Tribunal, in determining whether the complaint should be dismissed under s111, relied on the case of Assall v Department of Health, Housing and Community Services (1992) EOC pp.92-409, as well as numerous other decisions on this and similar provisions in State and Commonwealth legislation. The Tribunal's duty was to take the complainant's evidence at its best view or at its best reading and determine whether that constituted the basis for a complaint under the Act. If that evidence made out a prima facie case then the complaint could not be dismissed under s111, and the respondents would be required to answer the complainant's case. The relevant evidence in this matter consisted of the letter published in Capital Q and quoted above. The Tribunal found that the letter, taken in the context of the acrimonious debate which had occurred over the control of the transgender centre, did not vilify the complainant in the terms required by s38S of the Act. It found that the debate had consisted of some quite robust and vitriolic comments about all of the participants and the letter did not incite hatred towards, serious contempt of, or severe ridicule of the complainant, although it may have expressed some contempt or some ridicule. The letter was clearly addressed more to the issues about the transgender centre which had been canvassed during the debate. Further, the Tribunal found that the statements in the letter were not made on the ground of the complainant being a transgender person but rather, that, taken in the whole context of the letter, they were made on the ground of the role which the complainant and others had played in relation to the dispute about the management and control of the transgender centre. The complainant has therefore been unsuccesful in establishing both the alleged vilification and the grounds for that alleged vilification. The Tribunal, therefore, did not consider the further submissions of the respondent regarding the exceptions in s38S(2) of the Act. The complaint is dismissed under s111 as being misconceived. No findings are made on the frivolousness or vexatiousness of the complaint. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.