TRANSSEXUALISM FORMS BASIS OF DISCRIMINATION CLAIM

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TRANSSEXUALISM FORMS BASIS OF DISCRIMINATION CLAIM

The Victorian Civil and Administrative Tribunal has determined that a transsexual was accorded less favourable treatment because of her 'transsexualism'.

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The Victorian Civil and Administrative Tribunal has determined that a transsexual was accorded less favourable treatment because of her 'transsexualism'. It was also determined in Menzies v Waycott & Anor, VCAT, Anti-Discrimination List No. A34 of 2000, (14 March 2001), that even though 'gender identity' was not in 1998 an attribute that could properly form the basis of a discrimination claim, the attribute of impairment encompassed transsexualism. Since then the Victorian Equal Opportunity Act 1995has been amended to provide 'gender identity' as an attribute that can form the basis of a claim of discrimination.

The complainant in this case is a transsexual. She was born a biological male. In late 1995 the complainant was referred to the Monash Medical Centre's Gender Dysphoria Clinic. The complainant participated in the in the Clinic's program for over two years, during this time the complainant lived and dressed as a female. On 13 March 1998 the complainant underwent sex reassignment surgery.

It is claimed that the complainant was dismissed from her employment because she was discriminated against on the basis of her transsexualism. Under the combined provisions of s14and s6of the Equal Opportunity Act 1995(Vic) the complainant submitted that her employer was prohibited from discriminating against her by dismissing or otherwise terminating her employment on the basis of physical features, sex and/or impairment. In reply, it was the submission of the respondent company that the employee's termination related to her poor performance on a large contract that had left the employer at considerable financial risk.

The Victorian Civil and Administrative Tribunal (VCAT) identified three issues for determination in this matter. Firstly, was the employee's transsexualism a substantive reason in the decision to terminate her employment? Secondly, if it was, then did 'transsexualism' constitute a basis for a claim under the Equal Opportunity Act 1995? Finally, if both questions were answered in the affirmative then the VCAT would need to give consideration to the appropriate orders.

Facts

The complainant worked in the central vacuuming industry for small companies that designed, manufactured and supplied systems to the domestic, commercial and industrial markets. Mr. Menzies (as the complainant then was) had been a long-standing business competitor to the first respondent, the Managing Director (MD) of the second respondent (Astrovac).

In late 1995 the complainant approached the MD of Astrovac to discuss the possible purchase of his company. In late 1995 a meeting was set up to discuss the proposed purchase. Prior to the meeting the complainant requested a private meeting with the MD of Astrovac. Privately, the complainant revealed that as of 1 January 1996 he would resort to dressing and living as a female.

On 13 February 1996, the MD in consultation with Atrovac's Commercial Division Manager (CDM) decided to purchase the complainant's company. The complainant who now presented and dressed as a woman commenced work at Astrovac on 16 February 1996. Her role was to secure new work for the company and to manage the installation of systems once a new project had been secured.

The Tribunal accepted the complainant's evidence that in April 1996, the MD offered to double her salary, provide her with a car and other benefits if she reverted to living and dressing as a man. In fact, the MD openly admitted in evidence that during discussions with the complainant about marketing strategies it was suggested that a higher salary and other benefits were contingent upon her reverting to living and dressing as a man.

The Phillip Morris Ltd contract is at the heart of this matter. The company alleged that the complainant's poor performance on this project placed the company at considerable financial risk. This allegation, the complainant submitted, was a pretext used to terminate her at a time when she had taken leave to have gender reassignment surgery. The complainant was required to manage, design, supply, install and commission a central vacuum cleaning system for Phillip Morris. The project commenced in November 1997. In early March 1998, the complainant informed Phillip Morris that she would be on annual leave from 12 March until 4 May 1998. The purpose for this period of leave was to have sex reassignment surgery.

In the complainant's absence the MD appointed the CDM to take over the Phillip Morris job. The CDM gave evidence that once he took over the project it became apparent that it was in a 'parlous state'. As a result of this assessment, the MD sent the complainant a letter on 26 March 1998 informing that she had been relieved indefinitely from responsibility and authority in relation to the Phillip Morris contract. The complainant did not receive the letter until she returned home from hospital on 6 April 1998. She subsequently met with the MD on 15 April 1998 whereupon she was told that when she returned to work on 4 May 1998 that her employment with Astrovac would be terminated.

The Tribunal noted that the decision to terminate the complainant was made by the MD solely on the advice he had received from the CDM. The decision was made without seeking an assessment from Phillip Morris about the state of the project, and without canvassing the complainant's side of the story.

The employment relationship was terminated on 4 May 1998. The Tribunal member formed the opinion that the meetings held on 15 April and 4 May 1998 were not genuine discussions regarding the complainant's employment at Astrovac, rather they were meetings held to fulfil what the MD considered to be legal requirements to ensure that the employment relationship was terminated legally.

Was transsexualism the reason for dismissal?

The next critical issues was the question of whether it could reasonably be inferred from the evidence that the complainant's transsexualism was a substantial reason for the termination of her employment. Relevant to this question were the following factors:

  • The complainant's work record with Astrovac was sound. The evidence revealed that in the course of her two-year employment with Astrovac, the complainant brought in $685,941 worth of new business. This far and away exceeded the expected minimum sales figure of $20,000 per month that was expected by the company. In cross-examination the MD acknowledged that the complainant had generated a handsome gross profit for the company.

  • There was no evidence of any criticism received by Astrovac regarding the complainant's performance on the Phillip Morris project. In fact the project engineer for Phillip Morris who was responsible for supervising the work carried out under the Astrovac contract, refused in evidence to criticise the complainant's handling, competence and commitment to the Phillip Morris contract.

  • No reasonable explanation was given as to why prior to making the decision to terminate the complainant no attempt was made to communicate with her about the project.

The Tribunal Senior Member went on to hold that it appeared that Astrovac had employed the complainant in the belief that her stated intention to live as a woman would not be carried through. This view was manifested in the MD's 'counseling' of the complainant and his attempt to encourage her to live and dress as a man—going so far as to suggest that this could result in a higher salary and other benefits.

The Tribunal arrived at the view that the complainant was treated less favourably because of her transsexualism than a person who was not a transsexual in similar circumstances. However, the fact that it was found that the complainant was accorded less favourable treatment because of her transsexualism, does not of itself amount to a finding of unlawful discrimination under the Equal Opportunity Act 1995.

Can transsexualism form the basis for a claim of discrimination under the Act?

Unlawful discrimination will only occur if transsexualism falls within one or more of the 'attributes' set out in s6of the Act. Currently s6(ac) provides 'gender identity' as an attribute; it is intended to protect against discrimination afforded to people whose gender identity does not match their physical sex at birth. This attribute was introduced into the Actwith the commencement on 9 October 2000 of the Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000.

The question therefore was whether transsexualism could properly form the basis for a claim of discrimination under the Actas it was in March 1998. The complainant contended that one or more of the following attributes encompassed transsexualism; sex; physical features; and/or impairment.

The Tribunal found that the attributes of 'sex' and 'physical features' did not incorporate or encompass the concept of transsexualism. Impairment, which is defined in the Actas malfunction of a part of the body including a mental or psychological disease or disorder, was found to encompass transsexualism. It was held that transsexualism generally amounts to a failure by a part of the body to function properly and that failure has a mental component. This is because a transsexual has the physical body of one sex but considers himself or herself to be of the opposite sex, thereby causing dissonance between mind and body.

It was determined that the MD contravened the Equal Opportunity Act 1995by terminating the complainant's employment on the basis of the attribute of impairment that being the complainant's transsexualism. Having determined that the complainant's transsexualism was a substantial reason in the decision to terminate her employment and that transsexualism could form the basis of a claim of discrimination under the Actas it was in March 1998, the question of damages was left to be determined on another day by the VCAT.

 
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