Lawarik v Chief Executive Officer, Corrections Health Service [2003] NSWADT 16 (24 January 2003)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Lawarik v Chief Executive Officer, Corrections Health Service [2003] NSWADT 16

PARTIES: APPLICANT

Anna Lawarik

RESPONDENT

Chief Executive Officer Corrections Health Service

FILE NUMBERS: 011034

HEARING DATES: 08/11/01, 28/02/02

SUBMISSIONS CLOSED: 28-02-2002

DECISION DATE: 24-01-2003

BEFORE: Rice S - Judicial MemberAlt M - MemberPun A - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

Interpretation Act 1987

CASES CITED: Commissioner of Corrective Services v Aldridge (EOD) [2000] NSW ADTAP 5

Dutt v Central Coast Area Health Service [2002] NSW ADT 133

Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26

APPLICATION: Transgender - Goods and Services

MATTER FOR DECISION: Principal Matter

APPLICANT REPRESENTATIVE: APPLICANT

D Hillard Solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

C Ronalds Barrister

ORDERS: Pursuant to s113 (1) (a) the complaint is dismissed

Reasons for Decision:

1 For the reasons given below the complaint is found to be unsubstantiated, and is dismissed. This means that Ms Lawarik's application is unsuccessful.

THE APPLICANT

2 The applicant to the Tribunal is Anna Lawarik. Ms Lawarik's sex at birth was male. She lived as a male named Anthony until about 1997. There is no issue in this matter that Ms Lawarik is now a transgender person as defined by the Anti-Discrimination Act (`the Act') 1977. Whether Ms Lawarik was a transgender person, as defined, in the period relevant to the complaint is an issue in this matter.

3 Although Ms Lawarik was not known as Anna Lawarik throughout the periods and events discussed in this matter, for consistency we refer to her as Ms Lawarik; we do not mean by doing so to indicate a view as to whether at any particular time she was in fact a transgender person.

COMPLAINT AND INQUIRY

4 Ms Lawarik's letter of complaint dated 31 October 1997 was received by the ADB on 4 November 1997. She complained of discrimination against her by Corrections Health Service on the ground of her being a transgender person. Specifically, she complained of the refusal, first by Dr Yee and then by Dr Thompson, to prescribe a course of hormone therapy. (Having regard to the evidence of Dr Matthews, we refer to the treatment which was requested by Ms Lawarik as `hormone therapy'). Dr Yee's decision was on 19 September 1997. Dr Thompson's was on 30 September 1997 and she maintained that position throughout the relevant period.

5 Ms Lawarik complains that the decisions were in fact application of a Corrections Health Service policy which restricted the provision of hormone therapy to transgender people (`the policy').

6 The President of the ADB was unsuccessful in attempts to resolve the complaint through conciliation. By letter dated 10 May 2001 he referred Ms Lawarik's complaint to this Tribunal for inquiry, under s94(1) of the Act.

7 Ms Lawarik's complaint, which is dealt with as an application to this Tribunal, was heard on 8 November 2001 and 28 February 2002.

ISSUES

8 The facts in these proceedings were largely agreed between the parties. At issue are the following:

i. is time period covered by the complaint limited to the six months prior to the date of complaint?

ii. was Ms Lawarik a transgender person within the meaning of section 38A of the Anti-Discrimination Act during the time covered by the complaint which is the subject of this inquiry?

iii. would the refusal to provide hormone therapy be a refusal of the provision of services within the meaning of section 38M of the Anti-Discrimination Act?

iv. was the refusal to provide the hormone therapy to Ms Lawarik unlawful discrimination within the meaning of section 38B (a) or (b) of the Anti-Discrimination Act?

v. did Ms Lawarik suffer loss or damage for which she is entitled to compensation?

9 We have answered these:

i. yes

ii. yes

iii. yes

iv. no

v. does not arise.

TIME PERIOD COVERED

10 Corrections Health Service submits that as a matter of law the Tribunal has jurisdiction only in relation to conduct which occurred in the six months prior to Ms Lawarik's complaining to the ADB on 4 November 1997.

11 We agree. That is the effect of the decision of the Appeal Panel in Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26; see especially paras 88-90. When conducting an inquiry into a complaint the Tribunal has no jurisdiction to inquire into conduct that occurs after the date of the complaint.

12 An issue raised by the way events unfolded in this matter, not addressed directly by the decision in Wollongong City Council -v- Bonella, is the status of correspondence received by the ADB after the letter of complaint. Such correspondence can, and in this case did, complain of further instances or the continuing nature of discriminatory conduct.

13 The decision in Wollongong City Council -v- Bonella makes clear that a complaint received by the ADB cannot have `continuing' effect: it cannot encompass subsequent conduct. The ADB commonly receives subsequent correspondence from the complainant in the course of investigating the matters first complained of: a continuation of the correspondence which commenced with the complaint. That subsequent correspondence may contain allegations of further instances or of the continuing nature of the discriminatory conduct first complained of. For the Tribunal to inquire into those further instances or the continuing nature of the discriminatory conduct it will be necessary for the President to have dealt with the subsequent correspondence as separate complaints, to have investigated them within the meaning of section 89 of the Act, and to have referred them as separate complaints.

14 In this matter the complaint made on 4 November 1997 did not complain (and could not have complained) of decisions made after 4 November 1997 or of the continuing operation of the policy.

15 In a letter to the ADB of 24 March 1999 Ms Lawarik did refer to decisions made in 1998, and to the continuing operation of the policy. If the letter of 24 March constituted a complaint - and in our view on its terms it could reasonably be characterised as such, even though it was out of time with respect to the decisions in 1998 - it was not dealt with by the ADB as a complaint in its own right. This is not a criticism of the way in which that correspondence was dealt with, as the circumstances arose well before the decision in Bonella made clear the strict limitation on the idea of `continuing complaints' arising from the wording of the Act.

16 The position is, however, that this Tribunal has no jurisdiction in this matter to inquire into occurrences after 4 November 1997. Thus the `relevant period' in this matter is limited to the period of six months before 4 November 1997.

FACTS

Requests for hormone therapy in prison

17 From 10 September 1997 Ms Lawarik was detained in custody in New South Wales. It appears that she was detained in custody from that date until sentenced on 6 November 1997 to a term of imprisonment.

18 The Corrections Health Service Reception Assessment on 10 September 1997 records "Ref M/O to discuss transgender issue", and the clinical notes on the same day record "Requests to see M/O re transgender issue - ref M/O". It appears that Ms Lawarik was then referred to the resident medical officer, Dr Yee.

19 On 11 September 1997 Ms Lawarik made a formal application to the Department of Corrective Services for "the opportunity to commence hormone therapy whilst I am here". The application was endorsed "To clinic for comment and or facilitation".

20 Corrections Health Service clinical notes of 11 September 1997 record "Not seen. Re-booked. Lack of time".

21 Corrections Health Service clinical notes of 19 September 1997 record "Request start oestrogen . . . Was not on oestrogen prior to imprisonment . Refer psychiatrist". The referral entry by the medical officer Dr Yee, for the same day, says " Requests start oestrogen (transsexual). Was not on a programme prior to imprisonment. Assessment please".

22 In a letter dated 19 September 1997 Ms Lawarik refers to having seen a doctor "within this complex today" and to having been "informed that he [the doctor] would be unable to continue my interrupted plans of changing gender as I was not already on a regime prior to my incarceration. Instead he gave me a referral to you [a psychiatrist] regarding gaining approval prior to commencing".

23 On 30 September Ms Lawarik saw Dr Thompson, a consultant psychiatrist to Corrections Health Service. In her clinical notes Dr Thompson says of Ms Lawarik:

He appears to be genuine in his wish to be female, but I would like this confirmed prior to starting my continuing the program in Hobart . . .

I need to confirm his story with the group in Hobart and find out their response for starting hormones and various consents. Also to confirm his story of having an appointment with Dr Jackson for hormone therapy. In my opinion no treatment should be started before sentencing and possibly classification.

24 Dr Thompson sought this confirmation in a letter to the sexual health service which Ms Lawarik had said she had consulted prior to her incarceration. By letter dated 13 October 1997 that service advised it was unable to provide any information as Ms Lawarik had not been a client of the service.

25 Dr Thompson's clinical notes of 15 October record a phone conversation she had with the sexual health service, saying "they do not support him being placed on hormones".

26 Corrections Health Service clinical notes of 20 October 1997 record "Still having problems obtaining hormones. Not happy with Dr Thompson's current approach". On that date Dr Yee referred Ms Lawarik to the Crisis Team saying "requesting hormones for transgender reason. Unhappy with Dr Thompson's current approach. Can you please help him sort it out."

27 On 4 November 1997 the Anti-Discrimination Board received the complaint from Ms Lawarik.

28 There was extensive documentary evidence, and considerable time spent in evidence and cross-examination, concerning Ms Lawarik's dealings with Corrections Health Service from 4 November 1997 until December 1999. As we have said above, those dealings are outside the relevant period for this complaint.

29 For completeness of an account of the issue as it developed between Ms Lawarik and Corrections Health Service, we note that Corrections Health Service referred Ms Lawarik to further consulting psychiatrists: Dr Lewin in December 1997 and Dr Koller in May and July 1998. On 17 November 1999 Ms Lawarik saw a psychiatrist of her choice, Dr Newman. In December 1999, on the recommendation of Dr Newman, Ms Lawarik was examined by an endocrinologist and was prescribed hormone therapy. Ms Lawarik was first prescribed hormone therapy on 24 December 1999 and continued to receive the treatment from that date.

Policy

30 At the relevant time Corrections Health Service had in place a policy entitled "Transsexuals - Policy and Hormone Regime" which read, relevantly:

Hormone therapy will only be provided to those transsexuals who have been receiving such before admission to prison, i.e. hormone therapy will not be commenced whilst an inmate. (emphasis in the original)

31 There is no argument as to whether use of the term `transsexual' in the policy is, in these circumstances, a sufficient reference to a transgender person as defined by the Act. It is clear from the Hansard second reading speech referred to below that the term `transgender' was used in the legislation, after deliberation, to identify people otherwise known by the term `transsexual'. The point was not taken in these proceedings.

LAW

32 Ms Lawarik says that she was a transgender person within the meaning of the Act in the relevant period. Section 38A of the Act defines a transgender person as a 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.

33 Ms Lawarik says that she was discriminated against within the meaning of section 38B(1)(a), which describes what is conventionally termed `direct discrimination', and section 38B(1)(b) which describes what is conventionally known as `indirect discrimination':

A person (the perpetrator) discriminates against another person (the aggrieved person) on transgender grounds if, on the ground of the aggrieved person being transgender or a relative or associate of the aggrieved person being transgender, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances (or in circumstances which are not materially different) the perpetrator treats or would treat a person who he or she did not think was a transgender person . . . or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not transgender person . . . comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

34 Ms Lawarik says that this discrimination occurred in the provision of services, specifically in the refusal to provide services, within the meaning of section 38M:

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on transgender grounds:

(a) by refusing to provide the person with those goods or services

EVIDENCE

35 The Tribunal heard evidence from Ms Lawarik, and received extensive documentary evidence.

36 During the course of submissions for Ms Lawarik it became apparent that Ms Lawarik's evidence had not addressed the question of `detriment', that is, what it was that constituted less favourable treatment for the purposes of making a necessary comparison between the way she was treated and the way a non-transgender person was or would have been treated.

37 The absence of that evidence led to the Tribunal, of its own motion, to recall Ms Lawarik to give evidence addressing the issue.

38 Counsel for Corrections Health subsequently submitted to the Tribunal that in recalling Ms Lawarik the Tribunal was "creating the applicant's case" and that in doing so the Tribunal "cured a hole in the applicant's case".

39 The Tribunal and counsel for Corrections Health Service agreed that they approached from different perspectives the need for evidence which had not been led. The approach of the Tribunal was, as it said at the time, to ensure "that all the issues are on the table and that the Tribunal puts itself in a position to make a decision on the merits" (transcript 8/11/01 at p 75.32). In doing so the Tribunal was acting having regard to its obligations under section 73(5)(b) of the Administrative Decisions Tribunal Act, under which the Tribunal

is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings.

40 The proceedings were adjourned to allow Corrections Health Service the opportunity to obtain and tender evidence addressing the additional evidence given by Ms Lawarik. On the adjourned date Corrections Health Service tendered uncontested affidavits by two witnesses, Dr Matthews and Mr Downes, senior officers of Corrections Health Service and the Department of Corrective Services respectively, responding to Ms Lawarik's additional evidence. However, in light of the findings we have made, it is unnecessary for us to consider this and related material.

TRANSGENDER STATUS

41 An issue is whether, at the relevant time, Ms Lawarik was a transgender person within the meaning of the Act.

42 Section 38A(a) says that a transgender person is one who "identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex". The legislation acknowledges that a person may identify as a member of the opposite sex either by "living" or "seeking to live". Ms Lawarik says that at the relevant times she `identified as a member of the opposite sex by seeking to live as a member of the opposite sex'.

43 The question of what is meant by "living" and "seeking to live" as a member of the opposite sex is not clear, and nor is it clear what distinguishes the two. The provision could reasonably be said to be obscure within the meaning of section 34(1)(b)(i) of the NSW Interpretation Act 1987. That being so, we can properly have regard to material not forming part of the Act which is capable of assisting us in ascertaining the meaning of the provision.

44 We note that during the second reading speech in 1996 the Government, in introducing the provision, said that "this definition is not intended to cover persons who cross-dress or have adopted the characteristics of the other sex, say, for example, a male person who from time to time wears make-up, or high heels, who has not chosen to live as a member of the other sex". (Hansard 1 May 1996, page 643).

45 It is apparent from the second reading speech that the phrase "seeking to live" refers to more than merely engaging in certain conduct; it refers as well to a person's having chosen to live as a member of the opposite sex. The person's conduct would have to show that they have chosen to live as a member of the opposite sex, and that they thereby `identify as a member of the opposite sex'. It may be that they have not yet reached the stage of "living" as a member of the opposite sex, whatever it is that constrains their progress in that direction.

46 We agree with the submission for Corrections Health Service that it is not enough for a person to think about living as a member of the opposite sex, and to have decided that that is what they will do at some stage. The person needs to have made that choice, and there needs to be some positive indication, through the person's own conduct, that they have made that choice and are "seeking to live as a member of the opposite sex".

47 We note that a person can be a transgender person for purposes of the Act even though they have not been recognised as a transgender person for purposes of, say, medical diagnosis and treatment. There is no argument that at the relevant time Ms Lawarik had not been medically diagnosed as having the condition of gender dysphoria or any similar condition. But that is no bar to Ms Lawarik's being, at the time, within the definition of `transgender person' in the Act.

48 Ms Lawarik agrees that prior to her incarceration on 10 September 1997 she had never lived publicly as a woman. Her evidence is that she lived as a woman "not publicly (but) privately". Her evidence is that she decided that she would `take steps to enable her to live as a woman about three or four months before her arrest', i.e. in May or June of 1997. The steps she had taken before she was arrested were to have met members of a Tasmanian transgender peer support group, and to have spoken to her female partner at the time. Her evidence is that she had made an appointment with a doctor, with whom she had had no previous contact, with a view to obtaining a prescription for hormone therapy.

49 Ms Lawarik's evidence is that prior to entering prison on 10 September 1997:

. . . privately I lived entirely as a woman. Publicly I lived fairly androgynously

I went out and basically changed my entire wardrobe, I bought cosmetics, I dressed when I was in public in an androgynous fashion, I suppose I would make up in public but dressed and lived as a female. In private I used female, I used the name Anna. My partner at the time knew me as Anna. Most people I was in contact with knew me by that name.

50 Ms Lawarik's evidence is that within a week of being in prison she

came out fully. I asked everybody around me to call me Anna. I lived to the best of my ability as Anna which wasn't a great deal but I was able to do except to identify as Anna, as female.

51 On 11 September 1997 Ms Lawarik formally applied to commence hormone therapy, and she repeated the request on 19 September 1997.

52 Ms Lawarik gave evidence that when in prison she continued to use the name Anthony in official correspondence because, unless she did so, mail would not reach her in the correctional system. Her use of the name Anna was not officially recognised by the correctional system until in April 1998 when she formally changed her name from Anthony to Anna Louesa through registration with the New South Wales Registry of Births, Deaths and Marriages.

53 Having regard to the evidence, the Tribunal is satisfied that Ms Lawarik's conduct, in the three or four months preceding her detention on 10 September 1997 and when in detention on and after 11 September, shows that at least from 11 September 1997 she identified as a member of the opposite sex by "seeking to live as a member of the opposite sex", within the meaning of section 38A of the Act. At what stage during her incarceration her conduct was such that she identified as a member of the opposite sex, not by "seeking to live" but by "living" as a member of the opposite sex, is not relevant to this matter.

54 We are satisfied that on and from 11 September 1997 Ms Lawarik was a transgender person within the meaning of s38A.

PROVISION OF A SERVICE

55 A further issue is whether the provision of access to hormone therapy treatment is the provision of a service within the meaning of s38M of the Act. Corrections Health Service says that the provision of such treatment to transgender inmates is such a service only when it is provided for health purposes. Corrections Health Service argued that in this matter a service was provided to Ms Lawarik in that there was a medical diagnosis, and that Ms Lawarik is aggrieved only because the result of that diagnosis was that she should not be given hormone therapy treatment.

56 Ms Lawarik was cross-examined in relation to the content of discussions she had with doctors and psychiatrists engaged by Corrections Health Service, and her conduct and manner of interaction with those medical professionals. Even if, as was clearly implied by the nature of the cross-examination, Ms Lawarik was angry and/or dissatisfied with the refusal of treatment, or with the attitude or manner of the medical professional, there is no dispute that she requested treatment which she did not receive in the relevant period. We agree with submissions made for Ms Lawarik that she was not seeking treatment `on whim'. Hers was a genuine attempt to gain therapy which, in her view, her condition required.

57 It is not clear to us that there was ever a medical diagnosis of Ms Lawarik's condition by Corrections Health Service - the diagnosis was first made by an independent psychiatrist engaged by Ms Lawarik. Corrections Health Service says that up until that time Ms Lawarik's request for hormone therapy was refused precisely because a diagnosis had not been made. In any event, pointing to the provision of one service - medical diagnosis - is no answer to a claim that another service - prescription of hormone therapy - was not provided.

58 Ms Lawarik sought and did not receive a health service: provision of hormone therapy. Corrections Health Service says that the refusal was on medical grounds and not on the ground of transgender status. This is an argument about why the service was not provided, and is dealt with below. The ground on which the service is given or refused does not alter its character as a service within the meaning of s38M. In our view, in requesting hormone therapy of Corrections Health Service Ms Lawarik was requesting a service within the meaning of s38M.

DIRECT DISCRIMINATION

The policy

59 In terms of section 38B(1)(a), Ms Lawarik says that on the ground of her being transgender, Corrections Health Service, in refusing hormone therapy pursuant to its policy, treated her less favourably than in the same or not materially different circumstances it treated or would have treated the person it did not think was a transgender person. It is clear from its terms that the policy excluded some transgender people from medical treatment in certain circumstances. The issue is whether it was applied so as to exclude Ms Lawarik from medical treatment.

60 An approach to assessing discrimination under the Act was set out by the Appeal Panel in Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5: the Tribunal first assesses whether there was less favourable treatment and then, if there was, identifies the ground or grounds for such treatment. The Appeal Panel said at paragraph 45 that

Logically differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation.

61 On the other hand if, as in this matter, the issue of causation is clearly addressed by and can be decided on the evidence, it may become unnecessary to consider the issue of the differential treatment of a hypothetical comparator. It has been pointed out in Dutt -v- Central Coast Area Health Service [2002] NSWADT 133 that when the comparator, for purposes of assessing less favourable treatment, is hypothetical, these apparently consecutive questions tend to conflate.

62 In this matter there is no evidence before us of an actual comparator so we are dealing with a hypothetical comparator. There is however evidence of what the ground actually was for the conduct complained of. If the evidence satisfies us that Ms Lawarik's transgender status was not a ground for the conduct complained of then, whatever the hypothetical `less favourable' effect of that conduct, no question of unlawful discrimination under the Act arises.

Ground for the refusal

63 Corrections Health Service says that in fact there was no application of the policy, and that the ground for the refusal was a medical decision to seek further information. We agree; we are satisfied that the policy was not a ground for the refusal to provide hormone therapy to Ms Lawarik.

64 In relation to Dr Yee, the Corrections Health Service clinical notes of 19 September 1997 record "Request start oestrogen . . . Was not on oestrogen prior to imprisonment. Refer psychiatrist". Dr Yee's referral says " Requests start oestrogen (transsexual). Was not on a programme prior to imprisonment. Assessment please".

65 There is an implication in the notes that Dr Yee might have been aware of the policy, but whether he was aware of it is only to be inferred with some hesitation from the notes, and in the absence of our having heard him give evidence.

66 If Dr Yee was aware of the policy he seems not to have given effect to it. In accordance with the policy, Ms Lawarik's not having been on an oestrogen programme prior to imprisonment should have precluded any further consideration of her obtaining treatment: the policy states in bold print that in such circumstances "hormone therapy will not be commenced". Despite this, Dr Yee referred Ms Lawarik to a psychiatrist for assessment. This was not an application of the policy and a refusal of treatment; it was contrary to the policy and a step towards Ms Lawarik possibly receiving treatment.

67 Ms Lawarik's own letter of complaint says that Dr Yee, rather than prescribe the hormone therapy, had referred Ms Lawarik to a psychiatrist. Ms Lawarik's letter then records Dr Yee's stated reason for his conduct: he said to her that "he would never provide a script for hormones as he believed this was a psychiatric issue, not a medical one". Ms Lawarik says that "he referred me for further psychiatric assessment". Ms Lawarik's letter of 19 September reflects her own view at the time that Dr Yee "gave me a referral to you [a psychiatrist] regarding gaining approval prior to commencing [hormone therapy]". The emphasis is ours.

68 We are satisfied that Dr Yee's decision on 19 September 1997 was not an application of the policy on the ground of Ms Lawarik's being a transgender person, but was made on the ground of Dr Yee's unwillingness to prescribe treatment for Ms Lawarik without a psychiatric opinion.

69 In relation to Dr Thompson, it is clear that she entertained the thought of prescribing hormone therapy to Ms Lawarik. In her clinical notes she refers to her "need to confirm his story with the group in Hobart and find out their response for starting hormones and various consents". She says "In my opinion no treatment should be started before sentencing and possibly classification".

70 Without having heard or seen Dr Thompson give evidence, we understand these words to plainly indicate that she had in mind the possibility of Ms Lawarik commencing hormone therapy while in prison. There is no intimation that she was constrained in her management of Ms Lawarik as a patient by the existence of the Corrections Health Service policy.

71 There is no indication in Dr Thompson's notes that she was even aware of the policy, let alone that she acted on it. Her decision to not prescribe the hormone therapy was made on the basis of her professional assessment of the appropriateness or not of prescribing the therapy at that stage.

72 We are satisfied that Dr Thompson's decision on 30 September 1997, and the position she maintained throughout the relevant period, was not an application of the policy on the ground of Ms Lawarik's being a transgender person, but was made on the grounds of Ms Lawarik's self-diagnosed status as a transgender person not having been confirmed to Dr Thompson, and of details of Ms Lawarik's previous medical treatment as a transgender person not being available to Dr Thompson.

73 We refer to the actual ground for the decisions of Drs Yee and Thompson as `patient management'.

74 We are satisfied that the issue of direct discrimination through application of the policy to Ms Lawarik does not arise on the facts. It is not necessary therefore to ask whether Ms Lawarik was subjected to less favourable treatment than a hypothetical comparator would have been in the same circumstances.

INDIRECT DISCRIMINATION.

The policy

75 In terms of section 38B(1)(b) of the Act Ms Lawarik alleges that Corrections Health Service required her to comply with a requirement or condition with which a substantially higher proportion of people who are not transgender complied or were able to comply, being a requirement which is not reasonable having regard to the circumstances of the case, and with which Ms Lawarik did not comply. The condition in the policy was that hormone therapy was available only "to those transsexuals who have been receiving such before admission to prison". Ms Lawarik was not receiving hormone therapy before her admission to prison.

76 We have said above that we are satisfied that during the relevant period Corrections Health Service did not in fact apply the policy to Ms Lawarik's circumstances. The existence of the policy was not relevant, directly or indirectly, to the decisions made by Drs Yee and Thompson of which Ms Lawarik complains. Ms Lawarik's request for hormone therapy was not assessed according to the requirement or condition for treatment in the policy. We are satisfied that the issue of indirect discrimination through application of the policy does not arise on the facts.

77 It is however arguable that Ms Lawarik's status as a transgender person within the meaning of the Act was relevant to Dr Yee's decision in patient management - refusing treatment without a specialist assessment - and Dr Thompson's decision in patient management - refusing treatment until there was confirmation of a diagnosis or details available of previous treatment.

78 During the proceedings Corrections Health Service clearly argued that what we have called `patient management' was the actual ground for the decisions to not prescribe hormone therapy in the relevant period. Ms Lawarik did not argue, in the alternative to her claim that the policy was applied, that the ground relied on by Corrections Health Service was itself discriminatory. But the question clearly arises and we are unable to ignore it.

79 The question could be put this way: did the Doctors' approach to patient management incorporate a requirement or condition with which Ms Lawarik was unable to comply, but with which a substantially higher proportion of people not of transgender status were or would have been able to comply.

80 The requirement or condition imposed by Dr Yee was that a patient's self-diagnosis of a condition be subject to specialist assessment before embarking on a course of prescription medication. The requirement or condition imposed by Dr Thompson was that a patient's self-diagnosis of a condition be confirmed by someone with greater expertise, and with a history of dealing with the patient, before embarking on a course of prescription medication.

81 It is not necessary to allow the further opportunity for evidence or to hear further argument on this point. Not only was the issue clearly on notice to Ms Lawarik prior to and during the proceedings, but we are satisfied that there would be no evidence which would displace the view we take that the requirements were reasonable, and that Ms Lawarik was no more or less able than anyone else to comply with them.

82 In circumstances such as these, where the condition is not urgent or life-threatening and where the medication would have a profound effect on the physical and psychological status of the patient, these were reasonable requirements. Further, they are requirements with which Ms Lawarik was, in our view, no more or less able to comply than were most if not all people not of transgender status. The requirements would not have had a differential impact on transgender people.

SUMMARY

83 As a matter of law, the period covered by the complaint in respect of which this Tribunal has jurisdiction in this matter is the period six months before 4 November 1997.

84 On and from 11 September 1997 Ms Lawarik was a transgender person within the meaning of the Act.

85 Neither the decision on 19 September 1997 by Dr Yee, nor the decision on 30 September 1997 by Dr Thompson, to not provide hormone therapy to Ms Lawarik was a decision taken in accordance with the "Transsexuals - Policy and Hormone Regime" policy. Thus no question arises as to whether or not application of the policy discriminated against Ms Lawarik, either directly or indirectly.

86 To the extent that Drs Yee and Thompson required Ms Lawarik to meet a requirement or condition, the requirement or condition was reasonable in the circumstances, and one with which Ms Lawarik was no less able to comply than non-transgender people would have been able.

87 Accordingly Ms Lawarik has not substantiated her complaint.

ORDER

Pursuant to s113(1)(a) the complaint is dismissed.