The federal court may yet rule the NDIS must fund sexual services – a huge win for the disability community after years of uncertainty
Sun 21 Jul 2019 19.00 BST
Last modified on Sun 21 Jul 2019 23.45 BST
Ange McReynolds was 32 when she first asked one of her friends to “call up to ask for an escort”. McReynolds, who has severe cerebral palsy, represented Australia at the 2000 Paralympics in the sport of boccia, which is similar to bocce.
Still, in her words, she relies on others to do everything for her. The same goes for sex. “I access the service once a month,” McReynolds tells Guardian Australia. “It costs me $280 for two hours.”
Now 39, McReynolds says that, if she could, she would go more often. Every second week would be her preference. “I would like to see the NDIS fund it, because some of us can’t afford to see a sex worker,” she says in an email interview.
The minister responsible for the national disability insurance scheme, Stuart Robert, thinks he knows what the public might think about that.
Last week, Robert declared that the idea the scheme might fund sexual services did not meet “community expectations”.
Robert was forced to wade into the issue after a woman in her 40s with multiple sclerosis won the right to have sexual therapy funding in her NDIS plan.
The story was a tabloid’s dream: a woman seeking “sexual release” paid for by the taxpayer. In the end, reporting of the tribunal decision was quite restrained, but if advocates were relieved, it was short-lived.
Soon after the news broke, Robert said the agency would appeal to the federal court, a rare move that increases the likelihood of a precedent-setting decision.
If there was any consolation for advocates, it’s that the tribunal had approved funding for sexual therapy, which is generally not “hands on”, but did not rule on sex worker services. Much to the confusion of advocates and the agency, this was what the applicant had actually sought.
The appeal means the federal court may yet rule that the insurance scheme must fund sexual services for people with disabilities – a huge public win for the disability community after years of uncertainty.
Replacing the disjointed state-by-state system, the NDIS now provides funding packages to cover “reasonable and necessary” support for more than 300,000 Australians. More than 100,000 of these people are receiving support for the first time.
But the definition of what is “reasonable and necessary” has been the subject of dispute, amid arguments between the states and the commonwealth, and between the agency and disability advocates.
There is no data on how many people might want to access sexual services through the NDIS – but advocates claim that some people had already done so previously and the agency had simply turned a blind eye.
It later had a public change of heart, according to disability groups, and in the recent Administrative Appeals Tribunal case, the agency warned that offering sexual services presented a financial risk to the scheme’s future.
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Matthew Bowden, the co-chief executive of People With Disability Australia, disagrees. “It’s always been a minority, niche request,” he tells Guardian Australia.
“It’s not that every person with MS or every single person with a physical disability or intellectual disability or any impairment … is going to want to include access to sex workers in their package.”
The sex worker Scarlett B Wilde acknowledges she has a good reason for wanting the NDIS to pay for people to see her.
“I put my hand up, I have a vested interest within my business,” she tells Guardian Australia. “But at the same time, it’s the client that misses out. They lie there, you know, and for 40-odd years they might never have sex. It just seems a bit unfair.”
Wilde was trained by Touching Base, a long-standing referral service that connects sex workers and people with disabilities.
Along with the Canberra couple David and Jenni Heckendorf, and the successful documentary, Scarlet Road, Touching Base has helped counter the misconception that people with disabilities do not have sexual desires.
When the star of Scarlet Road, Rachel Wotton, conducted a survey for a research paper asking about 70 New South Wales-based sex workers if they’d ever seen a client with a disability, she found 90% had. The same proportion had seen the client more than once. And asked how often their disabled clients would return, most said the main factor was whether the person could afford it.
Among her clients with disabilities, Wilde says there’s “quite a broad spectrum”. She sees those with intellectual impairments, such as Asperger’s, as well as people who have cerebral palsy or acquired injuries.
“I have a thorough understanding of what the client would like me to do and not do,” she says. “The other thing to be aware of is that usually, the client … they’re handled a lot. They have carers that genuinely care for them, but it’s very mechanical. Sometimes they miss being handled in a more loving, intimate way.”
The Sydney sex worker Saul Isbister started Touching Base in 2000 after he noticed a growing demand from people with disabilities. Most of the time, the referrals come from support staff or family members, in part because of the nature of the person’s disability.
“There are others who directly approach us as clients themselves,” Isbister says. “For some people, all they want is a sex worker who won’t discriminate against them … Others are looking for someone who has already had some experience working with someone with a disability so that the client doesn’t have to train the worker during the session.
“When it comes to the actual session, I always like to be clear on how consent will be determined. For some people who are non-verbal, that might require setting up a means of acknowledging how yes and no are going to be expressed, before we even get to the bedroom.”
McReynolds now organises her sessions by herself. “I make a booking directly with the escort and to see if they are available around the time that I want to see them,” says McReynolds.
She asks for the “full service” and sees the same sex worker each time. Having some sessions funded by the NDIS would make a big difference to her life. “[It] causes us to get frustrated because we can’t release ourselves,” she says. “… everybody else we know is having sex.”
Jordon Steele-John, a Greens senator who lives with cerebral palsy, accuses the government of adopting a “broad, nebulous ideas of community expectations”.
“It is nobody else’s business,” he says. “If a disabled person wants to put an aspect of sexual expression into their plan, that they need the services of a sex worker to achieve that, and that is approved by the administrative processes of the NDIS, then that is it.”
He also argues that the “desexualisation of disabled people is a key factor in a lot of the abuse situations we end up in”. “We are not given access to information or support because it isn’t believed that we are sexual beings,” he says.
Robert, who declined to comment, was categorical last week, saying: “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 agency won’t be drawn on the question of community expectations. “This was a decision taken by the NDIA, as is appropriate,” a spokeswoman says.
“It is important to note the specific question in the case was whether the requested support (funding for a sex worker) was reasonable and necessary, which is the test under the Act. Applying the criteria in the Act, the agency found that sex worker support was not reasonable and necessary.”
“This continues to be the current position under the NDIS.”
In 2005, laws came into effect in Denmark allowing people with disabilities to charge the taxpayer to visit a sex worker once a month. A similar system now operates in the Netherlands.
In Germany, the idea was floated in 2013, and then again in 2017. One disability advocate, Matthias Vernaldi, was concerned it would “strengthen public perception of disabled people being some type of imperfect creatures and just expand again the once believed, conquered therapisation of the intimate spheres of disabled people”.
Wilde supports NDIS funding for the sexual services, but she acknowledges why there might be some concerns. “[Costs] can be quite varied,” she says. “I charge $330 for the hour. But you’ve got some bills that go six, seven hundred dollars … whenever it’s government funding … I guess there’s an element of that.”
The the disabilities minister Mitch Fifield was asked whether the NDIS would fund sexual services in its early days in 2013, but he declined to “give an on-the-spot ruling”.
Things changed publicly in 2017. In response to a Daily Telegraph story that made reference to “unconventional” supports offered by the scheme, but made no mention of sexual services, the NDIA issued a statement saying it did not fund “sexual services, sexual therapy or sex workers in a participant’s NDIS plan”.
Where before there was no policy, now there was a blanket ban.
Bowden and Isbister both claim the disability community has quietly been able to use taxpayers’ money to visit a sex worker for quite a while.
They claim people had used state disability funding to pay for the services and, despite the NDIS’s claims, the money had actually been carried over from state plans in the early days of the new scheme.
“We could appreciate that the agency and those individuals were going about that in a quiet way,” Bowden says. “Most people aren’t wanting the supports they might require to have sex or reach orgasm made very public.”
The community does not expect people with disability to live the life of a nun
Eventually, Bowden says the agency began rejecting claims when people tried to update their plans to include sex work services. Those who were self-managing their plans were also told they could no longer access the services.
“I think some of the more conservative members of the ministry and of the agency still are very hung up,” Isbister says. “I think the NDIA are way out of step with community expectations. The community does not expect people with disability to live the life of a nun.”
He says in motor accident insurance cases, courts have included access to sex worker services in settlements.
Bowden adds: “If you are unable to reach your own genitals because of the type of disability or impairment you have, then I think the community would expect a person would have some assistance to have sexual release.
“Whether it’s to be positioned to have sex with their husband or wife or partner … these services are only provided by sex workers, they are not provided by sex therapists or anyone else.”
McReynolds is also confident they can win the fight. “The community feels the same as me,” she says.
And to the critics, she adds: “They don’t really know what it is like having a disability [and not] having sex.”
