A NSW tribunal has dismissed a transgender road worker's allegation that he was unlawfully vilified by comments in the workplace, ruling that the conduct wasn't a "public act" under the state's Anti-Discrimination Act.
One employee allegedly made a remark to another employee of Statewide Traffic Control about the female-to-male transgender crew leader.
The employee was upset that a "trannie" was working for the company and said to her co-worker: "It's a fucking trannie taking hormones but still got tits and a box. I'll fucking punch its head through its car window, cunt".
The co-worker was the only person who heard the remark.
When the crew leader heard about the remark, he reported it to the company's HR department, which investigated the matter and eventually dismissed the perpetrator.
The Administrative Decisions Tribunal full bench – Judicial Member Robertson Wright SC and Non-Judicial Members Anthea Lowe and Jennifer Newman - said that while the employee’s actions were capable of inciting hatred and serious contempt against the transgender person, the claim couldn't proceed as the conversation was a private discussion between the two workers, even though it was conducted in a public place.
The bench said that if the conversation had been a "public act" under s38S(1), it "could be seen as tending to encourage members of the public who heard the comments to treat transgender persons as less than fully human and to suggest that physical abuse of such persons was justifiable".
It said the comments encouraged the view that the transgender worker was "in reality no more than hormones and some body parts rather than a complete human being entitled to the dignity and respect that that entails".
If the act had been public, the bench said it would have concluded "that the conduct was capable of inciting hatred towards and serious contempt for a person on the ground that the person is a transgender person".
It said the purpose of the Act's anti-vilification provisions was to reduce the incidence of physical and verbal violence and abuse against certain groups – including transgender persons – "without at the same time unduly restricting the rights of members of society to hold and express views including those which are unpopular or which some might find offensive".