Brosnahan v Ronoff [2011] QCAT 439

CITATION: Brosnahan v Ronoff [2011] QCAT 439 PARTIES: Jo Brosnahan (Applicant/Appellant) v Jason Ronoff (Respondent) APPLICATION NUMBER: ADL053-10 MATTER TYPE: Anti-discrimination matters HEARING DATE: 6 April 2011 HEARD AT: Brisbane DECISION OF: Dr Bridget Cullen Mandikos, Member DELIVERED ON: 16 August 2011 DELIVERED AT: Brisbane ORDERS MADE: [1] The Respondent, Jason Ronoff, pay to the Applicant, Ms Jo Brosnahan, no later than 1 October 2011: (a) the sum of $10,000.00 (including interest) by way of compensation for vilification; and (b) the further sum of $5,000.00 (including interest) by way of compensation for harassment. CATCHWORDS: ANTI-DISCRIMINATION MATTERS – GENDER IDENTITY – Sexual harassment, vilification and serious vilification established – Public act – Statements by respondent “You fucking faggot, you have your fucking dick in a jar,‖ and ―Has anyone got a box of matches so we can burn this fucking faggots place down?‖ found to incite others to threaten physical harm towards Applicant – Damage to property – Damages ordered – no utility in private or public apology in the circumstances Anti-Discrimination Act 1991 (Qld), ss 4A(1)(b), 118-119, 124A, 131A, 166, 209 Queensland Civil and Administrative Tribunal Act 2009, s 34 -- 1 of 11 -- 2 Penalties and Sentences Act 1992 (Qld), s 5 Wilson & McCollum v Lawson & Anor [2008] QADT 27 M v S and G [2008] QADT 24 GLBTI v Wilks [2007] QADT 27 Peters v Constance [2005] QADT 9 Burns v Dye [2002] NSW ADT 32 Speaking Out – Stopping Homophobic and Transphobic Abuse in Queensland, Alan Berman and Shirleene Robinson, Australian Academic Press, 2010 APPEARANCES and REPRESENTATION (if any): APPLICANT: Jo Brosnahan was represented by Gina Mather from the Australian Transgender Support Association of Queensland RESPONDENT: No appearance REASONS FOR DECISION Overview [1] This unfortunate, and all too common, story about the lack of tolerance for members of Queensland’s transgender community begins in the dark hours past midnight on the 9th of April 2009. [2] On that evening, Ms Jo Brosnahan was awoken by the sound of her neighbour, Mr Jason Lewis Ronoff, wrenching the palings off her fence. Accompanied by a group of apparently intoxicated friends, Mr Ronoff screamed obscenities in Ms Brosnahan’s direction and threatened to burn her house down, while she hid inside, alone in the darkness, fearing for her safety. [3] Ms Brosnahan lodged a complaint with the Anti-Discrimination Commission of Queensland (“ADCQ”) on 16 December 2009, which was accepted on 13 January 2010. The ADCQ exercised its best endeavours to resolve the matter, scheduling numerous conciliation conferences. However, Mr Ronoff did not attend any of these conferences, and the matter was referred to QCAT pursuant to s 166 of the Anti-Discrimination Act 1991 (Qld) (“ADAQ Act”) on 19 July 2010. [4] The QCAT hearing took place on 6 April 2011. The ongoing problem of “transphobia” -- 2 of 11 -- 3 [5] Ms Brosnahan appeared at the hearing of this matter, assisted by Ms Gina Mather from the Australian Transgender Support Association of Queensland (“ATSAQ”). According to its website, ATSAQ was formed with the objective of providing help, advice, and assistance to the transgender community, their families, and friends. ATSAQ, in providing such assistance, endeavours to “address the problem of legal recognition and human rights for transgender people in the state of Queensland”. [6] This is no small goal on ATSAQ’s part, as “transphobia” within our community continues to lead to victimisation and violence, and disenfranchises persons who we should equally value as contributing members of society. The negative effects of transphobia have been carefully studied in an academic context and highlight the challenges that persons such as Ms Brosnahan face over their lifetimes, as a consequence of the ignorance and intolerance of others.1 Respondent’s failure to appear at the hearing [7] Mr Ronoff did not appear at the hearing, nor did he file any materials outlining his position with QCAT. I am satisfied that Mr Ronoff was given the relevant Tribunal notices in this matter, as the case officers involved made extraordinary efforts to ensure that they were delivered to the appropriate address. Further, Ms Brosnahan herself advised QCAT that Mr Ronoff resided with his mother at the same unit block as her in Minyama. This is the address to which the Tribunal’s notices were delivered. [8] I have considered an unsigned letter from Mr Ronoff, dated 12 February 2010, that formed part of the file referred to QCAT by the Anti- Discrimination Commission. In that letter, which fails entirely to address the specific complaint that is the subject of this matter, Mr Ronoff submitted that:  Ms Brosnahan had shown aggressive behaviour towards others in the complex;  He (Mr Ronoff) did not have an issue with the gender identity of Ms Brosnahan; and  The complaint lodged by Ms Brosnahan was contradictory in relation to her views of the fence. [9] Given that Mr Ronoff has not addressed the particulars of this complaint, and did not attend the hearing (at which his evidence could have been tested by cross-examination), this letter is of little assistance in determining what actually happened on the evening of 9 April 2009. Considering that Mr Ronoff made also himself scarce for the QCAT proceedings (failing to attend even the compulsory conference), I think it is 1 See, for example, Speaking Out – Stopping Homophobic and Transphobic Abuse in Queensland, Alan Berman and Shirleene Robinson, Australian Academic Press, 2010. -- 3 of 11 -- 4 fair to say that if Mr Ronoff did not have anything particularly persuasive to say in response to Ms Brosnahan’s complaint. [10] Mr Ronoff does indicate in his letter, and Ms Brosnahan confirms, that these matters were put to the police, who took no further action. I do not consider this to be a persuasive line of argument on Mr Ronoff’s behalf. Firstly, the police would have considered whether there was sufficient evidence to support a criminal charge, with an evidential standard of beyond a reasonable doubt. It is entirely possible that there is insufficient evidence capable of supporting criminal charges, but a plethora of evidence sufficient to support the lower civil threshold applicable here of “on the balance of probabilities”. Therefore, I do not consider a blanket assertion by Mr Ronoff that the police did not take further criminal action following the report as any persuasive indication that the events as described by Ms Brosnahan did not happen. Evidence at the hearing [11] Ms Brosnahan’s evidence is set out in her complaint filed with the Anti- Discrimination Commission Queensland on 16 December 2009. She was assisted by the ATSAQ in compiling written contentions that were filed with QCAT, and she gave oral evidence at the hearing of this matter. The events that transpired on Sunday, 9 August 2009, at approximately 2:30am Sunday morning, were outlined by Ms Brosnahan in her complaint as follows: ―I was woken by aggressive yelling and screaming. I looked out my bedroom window and saw 3 males and 1 female.‖ ―I recognised my neighbour (Mr Ronoff) to be one of these people. I saw him mouth the words ―You fucking faggot, you have your fucking dick in a jar,‖ and heard it as well.‖ I then heard the breaking noise of one of my wooden fence paling. The wooden fence is located about 5 metres outside my bedroom window. I thought that a wooden fence paling was being damaged because it sounded like a crunching ripping sound that a similar type action would make. I couldn’t see who was damaging the fence because there are plants and a lattice style fence bearing passionfruit obstructing the view.‖ ―I kept looking out my window. I then saw my next door neighbour (Mr Ronoff) wrenching on one of the wooden fence palings and shouting similar abusive words. He was using both hands and the wooden paling has broken in half from himself.‖ ―I have then heard who I believe is my neighbour shout to one of his friends ―Has anyone got a box of matches so we can burn this fucking faggots place down?‖.‖ -- 4 of 11 -- 5 [12] In the absence of any contradictory evidence from Mr Ronoff, I find that these events happened as described by Ms Brosnahan. Whilst Mr Ronoff, in his solitary letter of 12 February 2010 attempts to suggest that Ms Brosnahan is inconsistent with respect to her evidence about the fence, I find that it is clear that she is discussing 2 different sections of the fence, and is not contradictory. [13] Having then found that this series of unfortunate events did happen, I must now determine whether the conduct falls with the ambit of the ADAQ Act. The ADAQ Act provides three possible avenues of redress that need to be considered with respect to Ms Brosnahan’s application. These are:  Sexual Harassment;  Vilification; and  Serious Vilification. Sexual Harassment [14] The prohibition on sexual harassment is found in section 118 of the ADAQ Act. Section 119 of the ADAQ Act defines sexual harassment to happen if a person: * * * (c) makes a remark with sexual connotations relating to the other person; * * * and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so— (e) with the intention of offending, humiliating or intimidating the other person; or (f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct. [15] Under the ADAQ Act, the prohibition on sexual harassment is not constrained to one particular area (as that term is used in the Act), but is without limits and can apply to all facets of life. The law as it relates to sexual harassment, in the context of a matter also involving homosexual vilification, was adeptly set out in Member Roney’s decision in Wilson & McCollum v Lawson & Anor [2008] QADT 27. At paragraph 78 of Member Roney’s decision, he explains that joking and ridicule because of homosexuality may amount to harassment. In Wilson & McCollum, the persistent use of the terms “ladies,” “princess,” and “girls” in reference to homosexual men was found to amount to sexual harassment. -- 5 of 11 -- 6 [16] Further, although used in reference to homosexual men in Wilson & McCollum, use of the term “faggot” was found to be a term that would obviously cause offence. I find that use of the term “faggot” here (although misguided in that it confuses the distinct concepts of gender2 and sexuality3) is equally offensive when used in derogation of transgender persons. [17] In reference to transgender persons (in this case, a male-to-female transgender person), comments such as, “You fucking faggot, you have your fucking dick in a jar,‖ have a clear sexual connotation. I find that these comments were made by Mr Ronoff with the intention of offending, humiliating and intimidating Ms Brosnahan. These words are a demeaning reference to the changed gender role of a transgender person, in the context of sexuality. I say this for the reason that what I have taken Mr Ronoff to mean is that he assumes that Ms Brosnahan, as a transgender person, has had gender-reassignment surgery, such that she is not able to participate in heterosexual male activity. It is my view that any reasonable person would anticipate that such conduct would be offensive to Ms Brosnahan. This amounts to sexual harassment as prohibited by the ADAQ Act. Vilification on grounds of gender identity [18] The ADAQ Act prohibits vilification on grounds of gender identity: 124(A)(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group. [19] Member Savage, SC, in GLBTI v Wilks [2007] QADT 27 (paragraph 15) outlined the principles that should be considered in matters involving complaints of homosexual vilification (citations omitted): I accept that in considering whether the section has been contravened: (a) The respondents' intent to incite is irrelevant. (b) What is required is that there has been incitement to another to hate etc rather than a mere conveyance of a hatred already held by the speaker. (c) ―Incite,‖ ―hatred‖, ―contempt‖ and ―ridicule‖ should all be given the ordinary natural meaning i.e. to incite - urge on, stimulate or prompt to action. 2 The identification of one’s self as masculine or feminine. 3 Which sex, male or female, one finds attractive. -- 6 of 11 -- 7 (d) It is not necessary that it be proved that any particular person was incited but that the capacity of the public act to incite the ordinary reasonable person is what must be made out. (e) The incitement to hatred must be on ―the grounds of sexuality‖ meaning that that matter was a ―substantially contributing factor‖. Sexuality is defined in the Act’s scheduled Dictionary as inter alia homosexuality. [20] Here, the relevant attribute is “gender identity” – it is abundantly clear that Ms Brosnahan’s gender identity was not just a “substantially contributing factor” to Mr Ronoff’s conduct, but perhaps the only reason. The term “gender identity” has the meaning given to it in the Dictionary to the ADAQ Act: gender identity, in relation to a person, means that the person— (a) identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex. [21] Ms Brosnahan, though born with male sex attributes, identifies herself as a female and lives as a female. [22] Regard must next be had to s 4A(1)(b) of the ADAQ Act, which defines “public act” as including: ―any conduct that is observable by the public, including actions, gestures and the wearing or display of clothing, signs, flags, emblems or insignia‖. [23] In this instance, the conduct that Ms Brosnahan complains of took place at the front of her property, under public street lights, and was highly observable by neighbours and Mr Ronoff’s acquaintances. I therefore conclude that the requirement for the vilifying conduct to happen in public is satisfied. [24] The remaining question is whether Mr Ronoff’s conduct incited “hatred towards, serious contempt for, or severe ridicule of a person‖. There is no meaning given to these words in the Dictionary to, or elsewhere within, the ADAQ Act. In my view, if ever there was a clear case of transgender vilification, this is it. The words, “You fucking faggot, you have your fucking dick in a jar,” certainly indicate that Mr Ronoff has serious contempt for, and is severely ridiculing Ms Brosnahan because she is a member of the transgender community. [25] Although the use of the words “fucking faggot” and “fucking dick in a jar” are on their own capable of amounting to sexual harassment in this context as discussed above, on their own they cannot amount to vilification unless they can be seen to incite others to become active participants in the requisite hatred, contempt or ridicule displayed by Mr -- 7 of 11 -- 8 Ronoff towards Ms Brosnahan. In Burns v Dye [2002] NSW ADT 32, the New South Wales Anti-Discrimination Tribunal considered that relevant factors in making this determination include: the context in which the abuse occurred, the tone of voice used by the alleged vilifier and the observable relationship between the vilifier and his/her victim. [26] The portion of Mr Ronoff’s conduct that leads me to conclude he has gone beyond indicating his own disdain and hatred of transgender persons, and sought to incite others to take part in his conduct was his statement, “Has anyone got a match so we can burn this fucking faggot’s house down” (my emphasis). This statement is an open invitation for his surrounding acquaintances to join him in the vilification of Ms Brosnahan. Further, the context of Mr Ronoff’s statements was threatening, in that he was yelling, simultaneously engaged in property damage to Ms Brosnahan’s fence, was accompanied by others, and it was the middle of the night. Ms Brosnahan gave evidence that she felt vulnerable given her older age, and was terrified and cowering inside her unit whilst these events transpired. I am satisfied that the elements of vilification prohibited by s 124A of the ADAQ Act have been established. Offence of serious gender identity vilification [27] There is a further consideration relevant to this factual matrix – that being whether Mr Ronoff’s conduct can be seen to satisfy the higher threshold of “serious” vilification contained within s 131A of the ADAQ Act. [28] Section 131A provides: person must not, by a public act, knowingly or recklessly incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, sexuality or gender identity of the person or members of the group in a way that includes- (a) threatening physical harm towards any property of, the person or group of persons; or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons. [29] The maximum penalty for an individual is 70 penalty units or 6 months imprisonment. The current penalty unit is set at $100.00 as per s 5 of the Penalties and Sentences Act 1992 (Qld). [30] It is clear from the words “has anyone got a match so we can burn this fucking faggots house down,” that Mr Ronoff posed a threat of physical harm towards the property of Ms Brosnahan, inviting his acquaintances to join with him. Use of the words “anyone” and “we” leaves me with no doubt that Mr Ronoff encouraged the participation of others. When -- 8 of 11 -- 9 considering the relative ages of the parties, the fact that (as described by Ms Brosnahan) Mr Ronoff was a young man at the peak of his physical prime, it was the middle of the night, and that Ms Brosnahan was outnumbered by Mr Ronoff and his acquaintances, I consider this to be a form of gang-style violence. [31] The gravity of Mr Ronoff’s conduct is further exacerbated by the fact that Mr Ronoff was seen by Ms Brosnahan splitting her fence paling in half, causing damage to the property. I am satisfied that Mr Ronoff’s senseless and threatening conduct also fulfils the higher requirements to establish serious gender identity vilification under the ADAQ Act. Although the ADAQ Act would allow me to refer this matter to the Attorney General, for his consideration in commencing a complaint against Mr Ronoff under the Justices Act 1886 (Qld), I find that this would be futile. This is for the reason that a prosecution in relation to an offence under subsection 131A(1) of the ADAQ Act, must be commenced within a year, and therefore any prosecution in this matter would be out of time. Damages [32] Section 209 of the ADAQ Act provides that QCAT may make a range of orders in circumstances where the Tribunal has found the conduct complained of proven, as I have here. I consider the following to be relevant considerations: (b) an order requiring the respondent to pay to the complainant or another person, within a specified period, an amount the tribunal considers appropriate as compensation for loss or damage caused by the contravention; (e) an order requiring the respondent to make a public apology or retraction by publishing the apology or retraction in the way, and in the form, stated in the order. [33] I see little point in requiring Mr Ronoff to make a private apology to Ms Brosnahan. His non-attendance at both the ADCQ and QCAT suggests to me that he does not take these proceedings seriously, and any private apology will therefore be insincere. [34] Ms Brosnahan explained in her contentions, and at the QCAT hearing, that she continues to experience stress as a result of this episode. She is apprehensive when walking her dog, generally feels unsafe, and lives in fear that similar events will recur. At the time of the episode, she was terrified and anxious, particularly when the fence paling was broken as she was fearful Mr Ronoff and his cohort would break into her home. [35] As this is the first time that serious gender identity vilification has been established under the ADAQ Act (though I am certain not the first time it has happened), I am left to draw reference to other cases involving vilification under s 124A of the ADAQ Act. -- 9 of 11 -- 10 [36] In Wilson & McCollum v Lawson & Anor [2008] QADT 27, the complainants and respondents (a mother and son) were also neighbours, with an unamicable history. Over the course of some 2-years, the respondents publicly used various derogatory names, including “faggot” to refer to the complainants, who were a gay couple, on some 50 occasions. This continued until the complainants were eventually forced to move from their home. The former Anti-Discrimination Tribunal ordered that: the first respondent pay to each of the first and second complainants:- (a) the sum of $2,200.00 (including interest) by way of compensation for vilification; and (b) the further sum of $2,750.00 (including interest) by way of compensation for harassment; and that: the second respondent pay:- (a) to the first complainant:- (i) the sum of $2,200.00 (including interest) by way of compensation for vilification; and (ii) $5,500.00 (including interest) by way of compensation for harassment; (b) to the second complainant, $5,500.00 (including interest) by way of compensation for harassment. [37] The Tribunal in Wilson v McCollum also ordered that the respondents pay the complainants’ costs as assessed on the District Court scale4, and that within thirty days the respondents publish an apology in the Courier Mail as well as a paper local to the parties’ area, in terms set out in the Tribunal’s reasons. [38] In the earlier decision of Peters v Constance [2005] QADT 9, the respondent, a debt collector, attended at the home of the complainant, a homosexual man and well-known television personality working as a drag queen. The respondent yelled out words to the effect that the complainant was a paedophile, gutless wonder, and that he would see the complainant at the Wickham (inferring homosexuality). The former Anti- Discrimination Tribunal awarded the complainant $3,000.00, taking into account that the complainant had been partially compensated as the result of a claim he had made against the respondent’s employer. [39] In M v S and G [2008] QADT 24, a transgender female complained that she was vilified as she left a salon where she had just received hair and beauty treatments, by a salon employee. The respondent salon employee commented loudly “that’s a boy” or “that’s a guy”. Ultimately, the Tribunal Member dismissed the complaint of vilification, finding that the salon was 4 Applicable in matters where the sum recovered is less than $50,000. -- 10 of 11 -- 11 not “public”. However, the Member did indicate that if liability had been established, he would have awarded around $6,000.00 as compensation. [40] Here, I consider the conduct by Mr Ronoff to be more egregious than that in the cases I have referenced, in that his statements were more inflammatory, the circumstances would have induced terror in Ms Brosnahan, and the statements were accompanied by the physical destruction of property (the fence paling). Conclusion [41] In the circumstances, and taking into account the factors discussed above, I am of the view that an appropriate penalty is $15,000.00 ($5,000.00 for the harassing conduct, and $10,000.00 for the vilifying conduct), to be paid no later than 1 October 2011. [42] With respect to the issue of a public apology, I see little benefit in making such an order in this matter, for the reason I have little confidence that Mr Ronoff will comply with the terms of same. Instead, I hope that I have written my reasons in such fashion that organisations such as ATSAQ can disseminate them to members of the transgender community, encouraging persons who have been exposed to such baseless harassment and threats to speak out, confident that they will be heard by decision makers in cases that fall within the legislative parameters. Orders [43] I therefore order that the Respondent, Jason Ronoff, pay to the Applicant, Ms Jo Brosnahan, no later than 1 October 2011: (a) the sum of $10,000.00 (including interest) by way of compensation for vilification; and (b) the further sum of $5,000.00 (including interest) by way of compensation for harassment. -- 11 of 11 --