A Brisbane transgender woman who claimed to have breastfed her child after hormonal therapy has been ordered to provide evidence of the process, in a vilification matter before the Queensland Civil and Administrative Tribunal (QCAT).
In a decision published on Tuesday, the Tribunal allowed an appeal by a former breastfeeding counsellor who had been denied an application for information about the purported lactation.
In a media interview in 2022, the Respondent, who is the biological father of the child, had claimed to be “a transgender woman who, under medical supervision was able to induce lactation and was able to feed (her) child breast milk for a very brief time in 2019”.
The Applicant made public comments about the article, including that the Respondent was “a man pretending to be a woman”, “a child abuser” and “delusional”.
The Respondent made a complaint under Section 124A of the Anti-Discrimination Act 1991 (Qld), alleging vilification of her and transgender women as a group.
In January this year, the Tribunal refused an application by the Applicant for the production of documents related to the lactation, finding that the requested information was not relevant to issues in dispute.
In the appeal decision made on August 26, Senior Members Ned Aughterson and Samantha Traves ordered the Respondent to provide particulars of the “induction” of lactation, including whether it involved hormonal stimulation, and if so, the source and process; the composition of the substance which was lactated; and the precise source of the secretion.
The Member at first instance had stated that the procedures said to induce lactation, the details of the bodily fluid, and the details of the medical professionals involved, had no bearing on determining the elements of s 124A(1): person, public act, incitement and attribute.
Senior Members Aughterson and Traves found that the failure of the Member to consider the relevance of the information sought in defence, in particular to the elements of reasonableness and good faith for the public interest, was an error.
“It is that issue which is central to the Applicant’s application for a notice to produce,” they said.
“It is the Applicant’s submission that the capacity of a transgender woman to produce milk and breastfeed is contentious and, in that context, a relevant issue in the public interest is whether the respondent was in fact able to do so.
“That breastfeeding and the production of milk by transgender women is contentious is indicated by the available medical reports filed in this matter, including as to the nature of any ‘milk’ produced and the risks for any infant involved.”
The Respondent submitted that the accuracy or truth of her statements was not relevant to the question of whether the Applicant’s acts were done for a relevant purpose.
Senior Members Aughterson and Traves disagreed, saying that whether the statements were accurate or misleading was relevant to the question of whether or not the acts done in response by the Applicant were done reasonably and in good faith.
“In circumstances where the underlying issue is contentious and there is potential for it to have a significant impact on others, the veracity of any statement made might well be relevant to any assessment as to whether or not a given response was reasonable,” they said.
“It is not possible to make any such assessment without some understanding of, and measure of the foundation upon which, a given statement is made.”
The Senior Members also pointed out that if the complaint was ultimately proven, the Tribunal could make an order for compensation for loss or damage under s 209 of the Anti-Discrimination Act 1991 (Qld).
“If the respondent is ultimately successful, for example on the basis of a finding that the acts were not done reasonably and in good faith, a determination of the issues arising under s 209 of the AD Act could well be influenced by whether or not any comments made by the respondent were accurate or misleading,” they said.
Read the case here.
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