The circumstances which unfortunately affect the applicant herself are, to say the least, very unusual. The details of the claim involve very personal details concerning the impact of her disability upon her sexual life, such that I have decided that those details ought not, out of respect for her, to be disclosed in the public section of these reasons for decision. I apprehend that she would be embarrassed and disconcerted by their disclosure publicly, and that no public interest requires that such details be exposed to the world at large, or to media discussion.
So wrote the Administrative Appeals Tribunal in WRMF and National Disability Insurance Agency [2019] AATA 1771. The decision itself is not complex, but the context of it is extremely sad.
‘WRMF’ is a woman with severe multiple sclerosis and other related conditions. She has had a physical disability since age 17, and apparently also suffers some psychiatric conditions. Her MS is to such a degree that she is unable to masturbate. She sought funding for a sex therapist to manage aspects of her condition and not — it is important to stress this point — because she couldn’t find a partner. The fact that she couldn’t masturbate is, apparently, causing her enormous stress:
Her response to her achievement of sexual release (to the extent to which she is able to obtain such release) as a result of the services of a specialised sex therapist were described by the applicant in evidence which I accept as good for her mental wellbeing, her emotional wellbeing and her physical wellbeing at Transcript page 18, where she also said that her mood is less dull, it releases tension and anxiety, and improves her outlook on life. […] The applicant chooses to have the services of a sexual therapist. Most people do not need such services to achieve sexual release, so in a sense she is put on a par with others as far as she can be. As I have found, the support will help her realise her potential for social and emotional development and to participate in social life.
This should be the entirity of the debate. It’s an extreme situation with a lot of specific facts. It’s not really appropriate for widespread media attention.
So, of course, there’s widespread media attention.
News Corp ran an opinion piece from Jas Rawlinson, a Brisbane-based writer about the sex-trade. The piece inexplicably linked the AAT decision to issues facing the survivors of sexual exploitation.
I just can’t get on board with the AAT’s decision to approve sex therapy — and potentially, tax-payer funded sexual services.
As someone who has spent much of the past decade writing and researching about the sex trade, as well as personally listening to stories from survivors, I could tell you countless stories of heartbreak and anguish from women harmed through both the legal and illegal sex trade.
More so, however, I could tell you of the many survivors who feel the NDIS sex-therapy scheme is akin to a giant slap in the face — particularly given the mental and physical harm they have experienced while providing the very services deemed a ‘human right’ for sex buyers.
The judgement addresses this explicitly: ‘I reject the proposition that sexual rights are human rights.’
Meanwhile, the Conversation ran a bizarre piece by an adjunct healthcare researcher from James Cook University, Dr Matthew Yau, which stated:
While we can choose our sexual partners and the ways we express and satisfy our own sexual needs, these things can be more challenging for people with disability. This is due in a large part to social prejudices and discrimination.
In this sense, the tribunal decision did not go far enough. It should have recognised not only sex therapy, but also that the service of sex workers may be required by some people with disability.
Except this case had nothing to do with partners. The decision is explicitly not about having a right to a partner.
In the Guardian, Luke Henrique-Gomes cherrypicked the above quotes to give the impression that this was about the fact that the applicant couldn’t find a sexual partner. You have to read through a bunch of quotes about the applicant’s potential for a sexual relationship before, at last, in paragraph 12 it states simply: ‘Her condition also prevents her from masturbation.’ The key element of the decision is buried under ‘right to sex’ framing.
The ABC did an even worse job, not highlighting the distinction at all and then asking Eva Cox for her (uninformed) opinion:
Feminist writer and commentator Eva Cox said the judgement did not go far enough to recognise desire for sex beyond any therapeutic benefits.
“I think it’s a very limited judgement, which pathologises the idea that sexual contact is something you have to have in a therapeutic mode, rather than something that you enjoy, something that makes you feel good … and is normal,” she said.
“I don’t know whether sex in itself is a basic human right, but it’s a pleasure we like to seek. I think we have a right to seek pleasure and seek things like that as long as it’s not damaging for other people.
“In some cases, particularly with some people with disabilities, it’s the only chance they have at sharing the pleasure that is seen as part of one’s normal life.”
This opinion is absolutely useless for understanding the decision.
It is inexcusable that the media should so flagrantly misrepresent what is an extremely complex situation. People reading the media should not come away from reading a report with an entirely inaccurate understanding of what is being discussed. It is vile. It is absolutely vile.
In this case and in the Banerji case, journalists did not spend enough time understanding the decision before seeking ‘opinions’ from the usual megaphones. The basic facts upon which a reasonable person could form opinions are entirely missing from these accounts. The public is not able to have an informed, rational discussion about the issue when the media’s presentation of these issues is so atrocious.
Only The Sangfroid 