Woman with disability wins NDIS funding for sex therapist in 'precedent-setting' case
Updated July 11, 2019 19:05:16
For the first time, a person with a disability has won the right to have a sex therapist paid for under the National Disability Insurance Scheme (NDIS), but advocates say the ruling does not go far enough.
- The woman has a disability and her claim for the service was rejected by the NDIS, so she appealed against the decision
- The Administrative Appeals Tribunal found the type of support offered by the sex therapy should be covered by the scheme
- Advocates say a person with a disability’s desire to be sexual is “ordinary”, but the tribunal’s decision is significant
The applicant, who lives with multiple sclerosis, applied for sex therapy for “sexual release” to be covered in her NDIS plan, but was refused. She appealed to the Administrative Appeals Tribunal (AAT) which decided in her favour.
The judgement said the “only help she can usefully have to reach sexual release, to the extent to which she can, is by means of the qualified and trained sexual therapist whose services she seeks”.
The NDIS was the respondent in the appeal case. It claimed the applicant was seeking funding for a “paid friend” and that was not the kind of “reasonable and necessary support” the NDIS was supposed to pay for according to the act.
But the tribunal found otherwise, stating “the act tends to support the view that the support claimed in this case is a reasonable and necessary support”.
“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,” the judgment reads.
“She also said that her mood is less dull, it releases tension and anxiety, and improves her outlook on life.
“Therefore funding for a specialised sex therapist to provide the services in question seems to me to be funding which will be for the purpose mentioned in … the act.”
Minister for the NDIS, Stuart Robert, said that ruling was out of line with community expectations.
“The National Disability Insurance Agency (NDIA) intends to appeal the recent decision,” he said.
“The current position continues to be that the NDIS does not cover sexual services, sexual therapy or sex workers in a participant’s NDIS plan.
“These services are not in line with community expectations of what are reasonable and necessary supports.”
The cost of the sex therapist to the applicant’s NDIS plan will be about $5,400 a year and cover bi-monthly sessions.
The judgement said “the financial sustainability of the scheme is not threatened by funding the support which she seeks”.
People With Disability Australia chief Matthew Bowden said the decision set a precedent about “a very ordinary thing”.
“This actually means that it’s a reasonable and necessary support for her to live and have a sex life as non-disabled people have,” he said.
“This is a very ordinary thing. This isn’t extraordinary. This is something as a person she has a right to this within her life.
“That there are … positive benefits from having sex and having sexual satisfaction and that those things play out in a positive way in other areas of her life.”
Mr Bowden said cases like this highlighted the importance of the sex lives of people with a disability.
“It’s really significant,” he said. “It absolutely is precedent-setting.
“It says an important thing about the lives of people with disability, what’s important in our lives.
“The things that we are choosing are the things that other people enjoy and we just need to have support to have that same enjoyment.”
Sex worker helps couple ‘have a sexual relationship’
Jenni and David Heckendorf have been married since 1990. They have cerebral palsy and started using sex workers about 10 years ago.
They said physical intimacy was very important to their relationship, but they were not able to be mobile in the bedroom.
“We made the somewhat courageous move to look for other ways of being a couple and having a sex worker help us was the only way we found to get our needs met,” Mr Heckendorf said.
Before the NDIS, they were using a small percentage of their care payment to fund their sex worker, but when the new scheme came in, that changed.
“In April 2018 they wrote to us and said not only were we not allowed to use our funding for that therapist, we should never have been allowed to use it right from the beginning,” Mr Heckendorf said.
He said that decision angered them because their need for assistance was not a lifestyle choice.
“It is a need in the same way as getting help to get dressed, as having a bath, having a shower … only it’s extremely personal,” Mr Heckendorf said.
“We’re a couple that needs to bond together with that physical interaction.”
Advocates said there were misconceptions people with disabilities were not sexual.
Many people with disabilities are forced to seek the services of sex workers as an outlet for sexual desires and there have been arguments for the cost to be covered under the NDIS.
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.”
The difference between sex therapist and sex worker
Sex therapists obtain a certification, but they do not typically have any physical contact with clients.
Some in the disability sector say the activities supported in this tribunal decision were more likely to be performed by a sex worker than a sex therapist.
Ms Cox said the tribunal judgement’s language was disappointing.
“She applied for a sex therapist, but rather the response has gone out of its way to not include sex workers and I find that very disappointing because there’s a much broader issue underneath it,” she said.
“It makes assumptions that you can go and spend your money on your massage, an exercise class — that’s seen as normal — but you can’t have a sex worker.”
The judgement said:
“I should stress that this case does not, in my opinion, throw up for decision the question whether the services of a sex worker ought, on the proper construction of the act to be funded for persons with a disability if their needs require it.
“The applicant does not seek the services of a sex worker. Rather she seeks the services of a specially trained sex therapist, a term which I have used to draw attention to an important difference.”
Sex therapists who assist people with disabilities can provide counselling, coaching and, in some cases, have advertised more intimate services. Sex workers have a clearer and well-known definition.
Despite the very specific wording in the ruling, the Heckendorfs said it gave them hope.
“We can now go back to the NDIA [National Disability Insurance Agency] and renegotiate our claims for the next 12 months based on this ruling,” Mr Heckendorf said.
“We should be able to negotiate with them to have a small percentage of our funding to engage someone to help us have a sexual relationship.”
The NDIA was contacted for comment and said it was considering the decision.
First posted July 11, 2019 14:36:34