[Blog/Commentary] [Australia] No discrimination against transgender prisoner

[Stephanie Stevens]

CCH Australia, Australia


LAW CHAT

No discrimination against transgender prisoner

Posted on August 10, 2012 by Anne Wardell


A prison inmate with gender identity disorder, who was denied
permission to embark on a programme of female hormone therapy while in
prison, was not discriminated against. The Queensland Civil and
Administrative Tribunal (QCAT) found that the decision not to allow
hormone therapy to commence was based on the Department of Corrective
Services’ policy on transgender prisoners, which was not
discriminatory.

The prisoner (S) was sentenced to a long term of imprisonment in April
1999, with release due in 2013. For some years prior to his
imprisonment, S said he identified as a member of the female sex.
During his imprisonment, and particularly from 2004 onwards, he sought
treatment for gender dysphoria.

S told his general practitioner at the prison about these feelings
and, having subsequently consulted a number of specialists, was
ultimately referred to Dr B of the Brisbane Transgender Clinic. Dr B
diagnosed gender identity disorder, and prescribed two drugs to put
into effect gender change, namely Sprionolactone (an anti-androgen)
and Juliet-35 (a female hormone).

The Department of Corrective Services permitted S to take the
anti-androgen but refused to allow him to take the female hormones.

S contended that the department’s refusal to allow him to commence
female hormone therapy treatment was discriminatory and contravened s
7(m) of Queensland’s Anti-Discrimination Act 1991 (the Act).

The department said its decision to refuse the treatment was not
discriminatory, but consistent with its transgender policy not to
permit a person to commence hormone therapy treatment for the first
time in prison. Hormone treatment could continue if the treatment was
in place prior to entering the prison.

The reasons for the policy included safety concerns, as a prisoner on
the treatment would invariably be at a greater risk in an all-male
prison once they adopted a female role. There was also concern about a
lack of support in prison, as well as the fact that there was no
opportunity in a male prison to really live as a woman.

The court identified four issues to be decided:

1. whether S was in fact diagnosed with gender identity disorder
2. what the basis was for the department’s refusal to permit S to
commence female hormone therapy
3. whether application of the transgender policy to refuse S female
hormone treatment was discriminatory
4. whether the department discriminated against S by failing to
properly investigate his claim of gender identity disorder.

Whether S was diagnosed with gender identity disorder

The department contended that there had been no reliable diagnosis and
that its refusal to provide treatment was therefore reasonable and not
discriminatory. Alternatively, the department claimed that no
treatment was necessary as there had been no proper diagnosis.

The court rejected these contentions because there was a diagnosis by
Dr B, and the department in fact acted on that diagnosis by allowing S
to be prescribed anti-androgen drugs. The department’s decision not to
permit the female hormone treatment was based on its policy for the
treatment of transgender prisoners after incarceration. Implicit in
this was an acceptance of the diagnosis by Dr B.

The basis of the department’s decision not to allow S to commence
female hormone therapy

S claimed that the department refused treatment because it believed he
did not have a genuine need for the treatment but rather that it was a
lifestyle choice for him. The court, however, found that his
contention was inconsistent with the facts. The department allowed S
to take the anti-androgen medication which caused changes to his body.
He was referred back to Dr B and monitored by medical practitioners at
the prison. The refusal of female hormone therapy was solely due to
the department’s policy in that regard.

Whether application of the department’s transgender policy was discriminatory

Section 10 of the Act prohibits direct discrimination “on the basis”
of prescribed attributes, which include gender identity.
Discrimination occurs if a person with the attribute of gender
identity is treated less favourably than another person without the
attribute would have been treated in circumstances that were the same
or not materially different. Motive is irrelevant.

The court noted that there were two issues to be determined in order
to establish whether discrimination occurred.

The first was how, in the prison environment, the department would
have treated a person without S’s attribute. The second was whether
any unfavourable treatment which was identified occurred on the bass
of the attribute of gender identity.

It was necessary to identify a real or hypothetical comparator. S
suggested a hypothetical person without his attribute. However, the
court deemed the appropriate comparator to be a prisoner with a
diagnosed medical condition, whose treatment might cause irreversible
harm to the individual prisoner and which was likely to adversely
impact on the good management and security of the prison.

The court held that the department would not have treated such a
person any differently to the way it treated S.

Whether the failure to investigate S’s condition was discriminatory

S contended that the department discriminated against him by failing
to properly investigate whether he did have gender identity disorder.

The court dismissed this submission, finding that a diagnosis was made
by Dr B and that the department had acted on that diagnosis. Having
accepted that S did have the condition of gender identity disorder,
and having acted on that diagnosis, it could not later be said that S
was discriminated against because the department refused to undertake
further investigations when none were necessary.

Having found no contravention of the Act, it was not necessary to
consider the issue of damages. However, the court noted that if the
conduct had been discriminatory an award of $20,000 would have been
reasonable compensation.

Sinden v State of Queensland [2012] QCAT 284
<http://www.sclqld.org.au/qjudgment/2012/QCAT/284>

This story first appeared in the CCH Australian Equal Opportunity
Tracker and was written by Carol Louw, Senior Writer.


http://www.lawchat.com.au/index.php/no-discrimination-against-transgender-prisoner/