Submission to WA Law Reform Commission Inquiry into Recognition of a Person’s Sex, Change of Sex or Intersex Status

The following is my personal submission to the Law Reform Commission of WA’s Review of Western Australian legislation in relation to the recognition of a person’s sex, change of sex or intersex status. For more information on this inquiry, click here.

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Law Reform Commission of Western Australia

Level 23, David Malcolm Justice Centre

28 Barrack St

Perth WA 6000

lrcwa@justice.wa.gov.au

 

Friday 19 October 2018

 

To whom it may concern

 

Submission in relation to recognition of a person’s sex, change of sex or intersex status

 

Thank you for the opportunity to provide a submission to this important inquiry.

 

As noted in the Discussion Paper, Western Australia’s current legislation in relation to recognition of a person’s sex, change of sex (or gender) or intersex status is inadequate and out-dated, with negative consequences for trans, gender diverse and intersex individuals.

 

The model for reform proposed by the Commission would address a number of these short-comings, although I believe there could be further improvements as discussed below.

 

I write this submission as a cisgender gay member of the LGBTI community, and as an ally of the intersex, trans and gender diverse communities. Where there may be inconsistencies between this submission and the positions supported by those communities, I defer to their views.

 

Question 1. Will the Commission’s proposed model cause any difficulties if implemented?

 

I believe the Commission’s proposed model will remove some of the regulatory barriers currently experienced by trans and gender diverse people in having their gender identities recognised in Western Australia.

 

The removal of sex from birth certificates will also have particular benefits for people born with variations in sex characteristics, reducing pressure for involuntary and unnecessary medical treatments and/or surgeries to be performed.

 

However, as indicated above, I believe there could nevertheless be some improvements made to the model to ensure it better addresses the needs of these diverse communities.

 

Question 2. Is the ‘indeterminate’ category sufficient or should additional categories be added to the forms that are used for the First Report and the Second Report, which will then be used to record the sex of the child?

 

In principle, I do not object to the recording of ‘indeterminate’ sex in the First or Second Reports, provided other aspects of the model – and especially the removal of sex from birth certificates – are also implemented. This appears to ensure statistical data is collected while also reducing the stigmatisation of children born with intersex variations.

 

However, if the collection of ‘indeterminate’ sex is to continue through this process, it would be useful for the WA Government to indicate the numbers of births that have been recorded using this category – and also to actively monitor the number of children with intersex variations who undergo medical interventions to modify their sex characteristics each year (in an effort to reduce and ultimately eliminate human rights abuses in this area).

 

Question 3. Should sex classification be mandatory on birth certificates?

 

No.

 

I can see no proper purpose for recording sex classification in this way. In contrast, there are multiple benefits to be gained by removing this category from this form.

 

For trans and gender diverse people, and especially trans and gender diverse young people, it means they will be able to determine their own gender identity (which is much more relevant) when they are ready – and have that identity reflected in official documentation more easily (under other parts of the model),

 

For people born with variations of sex characteristics, it will help to reduce pressures for involuntary and unnecessary treatments and/or surgeries to alter their sex characteristics to conform to medical, parental and/or societal expectations.

 

The removal of sex and gender from birth certificates has also been called for in the March 2017 Darlington Statement of Australian and New Zealand intersex advocates and as part of the Yogyakarta Principles plus 10.

 

Question 4. Should alternative markers be available, such as ‘other/indeterminate’ or ‘not specified’, if sex classification is required on birth certificates?

 

I would defer to the views of intersex, trans and gender diverse organisations on this issue.

 

However, for the reasons outlined above, I would strongly urge the Commission – and the Western Australian Parliament – to ensure that sex classification be removed, avoiding the potential for adverse consequences in this area.

 

Question 5. Are there circumstances in which it will be necessary or desirable to prove sex through a birth certificate, where proof of gender by a Gender Identity Certificate or proof of sex by medical documentation is not appropriate or sufficient?

 

No. I can think of no circumstances in which proof of sex through birth certificate would be necessary, or preferable instead of proof of gender by Gender Identity Certificate.

 

Question 6. If yes for the above, would certification by the Registrar alleviate this issue?

 

Not applicable.

 

Other comments on the proposed model

 

There are other aspects of the Commission’s proposed model that are welcome, including the recommended abolition of the Gender Reassignment Board (with the simplified functions under the model performed by the Registrar instead).

 

I also welcome the proposed ability of minors to apply for a Gender Identity Certificate from the age of 12, with parental consent.

 

However, I question the age at which parental consent should no longer be required. Rather than the age of 18, which appears to be the position of the Discussion Paper, I believe consideration should be given to adopting an age of 16, as recommended by the February 2016 options paper from the Tasmanian Anti-Discrimination Commissioner.

 

In terms of which categories should be available on Gender Identity Certificates, I suggest that all of Male, Female, Non-Binary and Other (Please Specify) should be options, to recognise the complexity of gender identity, and that simply adding ‘non-binary’ may not accurately capture all of the possible identities of trans and gender diverse people.

 

However, as expressed earlier in the submission, if the consensus view of trans organisations and individuals is that Male, Female and Non-Binary are sufficient, I defer to those views.

 

On the issue of time limits, I do not agree with the proposal to make any change of gender identity beyond the third occasion subject to approval by an appropriate court or tribunal. I can see no reason why, if change of name is allowed annually, that application for change of gender identity should not also be allowed every 12 months (while noting that it is highly unlikely people will actually apply more than two or three times).

 

I also believe there may be some circumstances in which, even within a particular 12 month timeframe, there may be reasons to allow a person to apply to an appropriate court or tribunal for a change of gender identity to be revised (where, for example, a person is distressed following the issuing of a new gender identity certificate and making them wait to amend it has the potential to cause additional psychological distress).

 

An additional concern I have about the model is the comment on page 70 that “The Registrar may also request further evidence if required to prove the application [for a Gender Identity Certificate] is not sought for an improper or fraudulent purpose.”

 

This power seems to undermine the overall intention for the model to reflect self-identification as far as possible. There is also already a penalty for providing a false statutory declaration, making the necessity of such a power debatable.

 

In this situation, I suggest consideration of either removing this power entirely, or for ensuring additional safeguards on its exercise, to ensure it is only used sparingly, and in exceptional circumstances (rather than reintroducing onerous requirements for individuals to supply medical and other evidence through these administrative arrangements).

 

In addition, any decision by a Registrar to reject an application for a new Gender Identity Certificate (that is different to a previous certificate) on these grounds must be easily appealable, at low or no cost to the individual.

 

Finally, in relation to determining the appropriate place to hear appeals (both in relation to this issue, and also on other questions, such as applications for Gender Identity Certificates for minors where parents disagree, or where a person seeks a change in certificate prior to the expiry of any relevant time limits), I express reservations about the suggestion on page 75 that:

 

“The Commission considers the Family Court to be an appropriate decision-maker where the application is contested by one or more parent(s)/guardian(s), given the Family Court’s jurisdiction for approving medical procedures for intersex and trans and gender diverse minors in circumstances where a child is unable to give informed consent or where there is a disagreement between the parents or guardians about the medical procedure.”

 

Based on some harmful decisions in relation to intersex minors and involuntary medical treatments and/or surgeries by the Family Court of Australia, the Western Australian Family Court may not be seen as being best-placed to adopt the role of decision-maker under the Commission’s proposed model. I therefore suggest consideration be given to adopting a different decision-maker, including the possibility of a specialist tribunal within Western Australia.

 

Other issues

 

I welcome the comments by the Commission, on page 77, that:

 

“The [Equal Opportunity Act 1984] does not provide protections for intersex people, on the basis of their sex characteristics or intersex status, nor does it provide protections for people on the basis of their gender identity. The Commission considers a detailed review of the EO Act would be beneficial.”

 

However, while I support the view that this inadequate and out-dated legislation should be reviewed, I do not believe this should delay amendments to the protected attributes covered under the Act to ensure all members of the LGBTI community in Western Australia are protected against discrimination, as quickly as possible.

 

This could be achieved by adding the protected attribute of ‘gender identity’, potentially based on the definition used in the CommonwealthSex Discrimination Act 1984(with final wording agreed following consultation with the WA trans and gender diverse community).

 

However, I disagree with the Commission that consideration should be given to introducing a protected attribute of ‘intersex status’, again potentially based on the Sex Discrimination Actdefinition.

 

While that approach would ensure greater consistency between WA and Commonwealth law, it is not best practice. Instead, I support the introduction of a protected attribute of ‘sex characteristics’, as called for by Intersex Human Rights Australia, and in the Darlington Statement, potentially using the definition included in the Yogyakarta Principles plus 10:

 

‘each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’

 

Finally, I note that any consultation that addresses the issue of legal recognition of people with intersex variations will inevitably raise the issue of harmful, involuntary and unnecessary medical surgeries and/or treatments of children born with variations in sex characteristics.

 

The Discussion Paper indeed touches on this issue, including noting on page 28 that “The Commission understands that the current medical preference is to monitor, rather than intervene, for as long as is medically viable.”

 

My own understanding, based on views expressed by intersex organisations, is that this position may not be entirely accurate. I therefore call on the Commission to further investigate this issue, in consultation with intersex organisations.

 

Ultimately, I would like to see Principle 32 of the Yogyakarta Principles plus 10 reflected in the lived experience of all intersex people in Australia:

 

‘Everyone has the right to bodily integrity, autonomy and self-determination irrespective of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to be free from torture and cruel, inhuman and degrading treatment or punishment on the basis of sexual orientation, gender identity, gender expression and sex characteristics. No one shall be subjected to invasive or irreversible medical procedures that modify sex characteristics without their free, prior and informed consent, unless medically necessary to avoid serious, urgent and irreparable harm to the concerned person’ (emphasis added).

 

Please do not hesitate to contact me at the details provided below should you wish to clarify any of the above, or for further information.

 

Sincerely

Alastair Lawrie

 

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Who pays for homophobia, biphobia and transphobia?

Prejudice against the lesbian, gay, bisexual and transgender (LGBT) community comes with a hefty price tag.

 

It is paid for by the individuals who are subject to direct and indirect acts of discrimination, being denied employment, or services, because of who they are, who they love or how they identify.

 

And by others, who self-censor, missing out on opportunities and on full participation in society, because of the legitimate fear of such discrimination.

 

It is paid for in the adverse mental health impacts experienced by the LGBT community, with depression, anxiety and other mental illness caused by homophobia, biphobia and transphobia.

 

And most tragically by those who end their lives as a consequence.

 

It has even been estimated that homophobia costs the global economy at least $119.1 billion in lost GDP every single year (and presumably more if the effects of biphobia and transphobia are included).

 

But, in this post, I want to take this question – who pays for homophobia, biphobia and transphobia – more literally.

 

In essence, who provides the money that funds anti-LGBT prejudice, who allows it to occur in the first place?

 

The answer (or at least one of the answers), sadly, is all of us. Let me explain.

 

You are probably aware that most religious schools in Australia currently enjoy special privileges that permit them to discriminate against LGBT students, teachers and other staff.

 

This includes religious exceptions such as section 38 of the Commonwealth Sex Discrimination Act 1984, as well as equivalent anti-discrimination laws in New South Wales and Victoria.

 

In fact, Tasmania is the only Australian jurisdiction that does not allow religious schools to discriminate against teachers and students on the basis of sexual orientation, gender identity or relationship status.

 

All of the other states and territories allow at least some discrimination against LGBT students, or teachers, or in many cases both (Queensland actually comes closest to matching Tasmania’s ‘best practice’ approach: it does not permit discrimination against LGBT students, while LGBT teachers are subject to a ‘don’t ask, don’t tell’ regime – although that still means they can be fired if they even mention having a same-sex partner in the workplace).[i]

 

And you likely also know that in Australia, religious schools receive significant government funding.

 

But you are probably not aware just how much public money – taxpayers’ money, your money – is given to these institutions.

 

According to the 2018 Budget, the Commonwealth Government will provide:

 

  • $11.829 billion to non-government schools in 2018-19
  • $12.452 billion in 2019-20
  • $13.145 billion in 2020-21, and
  • $13.821 billion in 2021-22.

 

That’s a total of $51.247 billion in taxpayers’ money going to non-government schools in just four years.

 

In fact, it’s even worse than that. In September, the Morrison Liberal-National Government announced an extra $1.1 billion for non-government schools over the next four years (and $4.5 billion over the next decade).

 

And these numbers don’t include the funding provided by state and territory governments.

 

Based on averages published by the Australian Curriculum, Assessment and Reporting Authority (ACARA), state and territory governments provide approximately one-third of the amount funded by the Commonwealth.

 

That means an extra $17.43 billion of public funding over the next four years alone, bringing the overall total to $69.78 billion.

 

Now, a couple of important caveats. Given religious schools in Tasmania are not permitted to discriminate against either LGBT students or teachers, let’s subtract $1.438 billion from this figure (the $1.079 billion allocated to Tasmanian non-government schools in the Commonwealth Budget, plus an extra third for additional state government funding).

 

And, with a small proportion of non-government schools being non-religious in nature and therefore generally not allowed to discriminate (except in NSW, where the Anti-Discrimination Act 1977 permits all private schools, religious or otherwise, to discriminate against homosexual and transgender students and teachers), let’s be generous and subtract another 5%.

 

That still leaves $64.92 billion in Commonwealth, state and territory government funding allocated to religious schools over the next four years even though they are allowed to discriminate against LGBT teachers, students or both.[ii]

 

And who picks up the tab for this Government-sponsored homophobia, biphobia and transphobia? You do of course.

 

According to the Australian Bureau of Statistics, in June 2017 there were 19.963 million Australians aged 15 and over (and therefore potentially of taxpaying age).

 

This means that for every Australian individual taxpayer Commonwealth, state and territory governments will collectively give $3,252 over the next four years to religious schools that have the legal right to discriminate against LGBT students and/or teachers. Roughly $800 every year, per person, spent subsidising anti-LGBT prejudice.[iii]

 

What makes these figures truly offensive, obscene even, is remembering that this money is coming from LGBT teachers, who are paying for religious schools to have the ability to deny them employment in up to 40% of the jobs for which they are qualified.

 

From the parents of LGBT children, who are paying for the special privileges of these institutions to reject their child’s enrolment simply because of their sexual orientation or gender identity.

 

And from same-sex couples in rainbow families, who are paying for religious schools to deny their children admission on the basis of their parents’ relationship.

 

Indeed, the homophobia, biphobia and transphobia of religious schools is being paid for by the taxes of all LGBT Australians, our families, friends and allies.

 

And by the 61.6% of voters who just last year said that we are, or should be, equal irrespective of our sexual orientation or gender identity.

 

Despite that result (or perhaps even because of it) the Liberal-National Government seems intent on making what is a horrible situation worse.

 

Former Prime Minister Malcolm Turnbull commissioned the Ruddock Review of Religious Freedom during last year’s same-sex marriage parliamentary debate.

 

The contents of that review’s final report, delivered to the government in May but not yet released to the public, were leaked yesterday to Fairfax newspapers, and appear to support the further entrenchment, and possible expansion, of the ‘right’ of religious schools to discriminate against LGBT students and teachers.

 

This could potentially include the Commonwealth Government using the Sex Discrimination Act 1984 to override the anti-discrimination laws of states and territories like Tasmania (and to a lesser extent Queensland) that have moved to limit these special privileges.

 

New Prime Minister Scott Morrison does not seem opposed to such a development, saying that the right to discriminate against gay students ‘already exists’ (ignoring the fact it has been curtailed in some jurisdictions).

 

Three weeks’ ago he also told Sky’s Paul Murray that:

 

Let me give you this example. I send my kids to a Christian school, I think that Christian school should be able to ensure they can provide education consistent with the Christian faith and teaching that I believe as a parent. That’s why I’m sending them there. I don’t think that school should be told who they can and can’t employ, or have restrictions on them in ensuring that they’re delivering to me – the parent, their client, their customer – what I’ve invested in for my children’s education.

 

What he fails to mention is that, by virtue of public funding for religious schools, we are all ‘investing’ in his children’s education.

 

And what the Ruddock Review, Prime Minister Morrison and some members of his Government seem to want is for all of us to pay even more to allow more religious schools to discriminate against more LGBT students and teachers.

 

Well, fuck that. Enough is enough.

 

It’s time we stopped handing over money so that religious schools can fuck over LGBT students.

 

And it’s time we stopped coughing up cash so that these institutions can tell LGBT teachers and other staff to fuck off.

 

These human rights violations have gone on long enough.

 

To borrow a phrase from the American Revolution, there should be no taxation without anti-discrimination protection. Or even more simply:

 

No Taxation For Discrimination.

 

Instead of being an excuse for expanding religious exceptions in relation to religious schools, the Religious Freedom Review should be the catalyst for these special privileges to finally be subjected to proper scrutiny.

 

If the Morrison Government introduces amendments to entrench and expand the exceptions in section 38 of the Sex Discrimination Act, and potentially to override the best practice approach of the Tasmanian Anti-Discrimination Act, it will be up to Labor, the Greens and the cross-bench to block it (for his part, Opposition Leader Bill Shorten is making the right noises, saying “The fact is every child is entitled to human dignity. We shouldn’t even be having this debate”).

 

The pressure will also be on Liberal moderates, who like to claim credit for delivering marriage equality (they didn’t, but that’s a post for another day), to stand up and help defeat proposals that will increase discrimination against that same community.

 

But stopping things from getting worse would hardly be a heroic achievement. The religious exceptions of the Sex Discrimination Act, and the equivalent laws in most states and territories that promote anti-LGBT prejudice, must be repealed.

 

Because LGBT teachers should be employed on the basis of their abilities, not their orientations or identities.

 

And LGBT students should not be refused enrolment, expelled, or discriminated against in any way, shape or form, just because of who they are. Not one student. Not ever.

 

While the rest of us shouldn’t be forced to pay for it, literally funding the homophobia, biphobia and transphobia of religious schools.

 

Bottom line: if religious schools want one cent from us, they must be decent to us, and that means ending their special privileges to discriminate against LGBT students, teachers and other staff once and for all.

 

To take action, please sign and share this petition from just.equal: www.equal.org.au/protectourkidsandteachers

 

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Your hard-earned dollars are funding anti-LGBT prejudice.

 

Footnotes:

 

[i] For more information about these laws, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ii] I am not suggesting that all of these schools would discriminate against LGBT students and/or teachers. In practice, a number provide welcoming environments irrespective of sexual orientation and gender identity. However, these schools retain the legal right to discriminate on these grounds.

[iii] By way of comparison, the Commonwealth Government will provide $245.6 million over the next four years to another inappropriate and unjustified school funding initiative (the National School Chaplaincy Program), or the equivalent of $12.30 for every Australian aged 15 and over. On the other hand, the Turnbull Government, of which Scott Morrison was Treasurer, axed the $8 million Safe Schools program in 2016 – in effect, they could not even be bothered spending 40c per taxpayer, spread over four years (so just 10c per taxpayer per year), to help address homophobia, biphobia and transphobia in schools.

Submission to AHRC Consultation re Medical Interventions on People Born with Variations of Sex Characteristics

This is my personal submission in response to the Australian Human Rights Commission’s July 2018 Consultation Paper ‘Protecting the Human Rights of People Born with Variations in Sex Characteristics in the context of Medical Interventions’.

This issue – involuntary medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of intersex infants and children – is also the sixth post in a series looking at the unfinished business of LGBTI equality in Australia.

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Australian Human Rights Commission

c/- sogii@humanrights.gov.au

Sunday 30 September 2018

 

Submission in response to the Protecting the Human Rights of People Born with Variations in Sex Characteristics in the context of Medical Interventions Consultation Paper

 

Thank you for the opportunity to provide a submission as part of this important consultation process.

 

I do so not as a person with variations in sex characteristics, but as a member of the broader LGBTI community and as an ally of the intersex community.

 

This includes explicitly supporting the goals of intersex people as expressed in the Darlington Statement: Joint consensus statement from the intersex community retreat in Darlington, March 2017.[i]

 

This submission is informed by that document, as well as The Yogyakarta Principles plus 10: Additional principles and state obligations on the application of international human rights law in relation to sexual orientation, gender identity, gender expression and sex characteristics to complement the Yogyakarta Principles.[ii]

 

As someone who is not an intersex person, I do not propose to answer the specific questions set out in the consultation paper. On these, I defer to the lived experience of people with variations in sex characteristics, as well as the expertise of organisations like Intersex Human Rights Australia and AIS Support Group Australia.

 

Instead, I will comment on the overall human rights challenges faced by the intersex community, and the main actions required to address these issues.

 

The biggest challenge is the ongoing practice of deferrable medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of infants and children without personal consent.

 

Indeed, I would classify these acts as one of the two worst human rights abuses currently affecting the Australian LGBTI community (the other being the continuing mistreatment of LGBTI refugees, including their indefinite detention and proposed resettlement in countries that criminalise homosexuality).

 

Consequently, it is very welcome that the Australian Human Rights Commission is providing renewed attention to these human rights abuses through this consultation process.

 

However, this is only necessary because of the five years of inaction, by Commonwealth, state and territory governments, following the release of the seminal October 2013 Report of the Senate Standing Committee on Community Affairs: Involuntary or Coerced Sterilisation of Intersex People in Australia.[iii]

 

Among other recommendations, that Committee recommended that:

 

‘all medical treatment of intersex people take place under guidelines that ensure treatment is managed by multidisciplinary teams within a human rights framework. The guidelines should favour deferral of normalising treatment until the person can give fully informed consent, and seek to minimise surgical intervention on infants undertaken for primarily psychosocial reasons’ (Recommendation 3).

 

It is shameful that even this modest recommendation has not been implemented by Australian governments. In the absence of such intervention, the human rights violations of intersex infants have continued unabated. By some estimates, hundreds of these surgeries occur each year.[iv]

 

The time for a primarily guidelines-based approach is now over. What is needed is an explicit legislative prohibition on the performance of unnecessary and involuntary medical interventions (including both surgical and hormonal interventions).

 

This has been recommended by the UN Committee on the Elimination of all forms of Discrimination Against Women, which has stated that Australia should:

 

‘Adopt clear legislative provisions explicitly prohibiting the performance of unnecessary surgical or other medical treatment on intersex children before they reach the legal age of consent’.[v]

 

A similar call features in the Darlington Statement:

 

‘7. We call for the immediate prohibition as a criminal act of deferrable medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of infants and children without personal consent. We call for freely-given and fully informed consent by individuals…’ (emphasis in original).

 

Importantly, these prohibitions must include sanctions for people who are found to breach these laws, including medical professionals.

 

Recommendation 1. Australian governments must introduce legislation to prohibit deferrable medical interventions, including surgical and hormonal interventions, that alter the sex characteristics of infants and children without personal consent, including penalties for breaching such laws.

 

It is important to recognise that this prohibition will not end all medical interventions on intersex children, including those that are considered both necessary and not deferrable. However, determining what falls within this definition is likely to be highly contested.

 

In order to ensure children who have the capacity to provide consent are appropriately informed and therefore in the best position to make such decisions, they must have access not just to medical opinions (which have traditionally favoured interventions) but also to independent counselling and support.

 

This was recommended by the UN Committee on the Elimination of all forms of Discrimination Against Women (that Australia should ‘provide families with intersex children with adequate counselling and support’), as well as in the Darlington Statement (that ‘individuals and families hav[e] mandatory independent access to funded counselling and peer support’).

 

Those last two words – ‘peer support’ – are perhaps the most important. Individuals, and especially intersex children who have the capacity to provide consent, should have access to the advice, information and support of intersex people and intersex-led community organisations.

 

Recommendation 2. Individuals who are asked to provide consent to necessary, non-deferrable medical interventions must have access to counselling and peer support, including from intersex people and intersex-led community organisations.

 

The advice, information and support of intersex people and organisations is also vital to assist parents and guardians who are asked to provide consent for necessary and non-deferrable medical interventions on behalf of children who are not in a position to provide their own consent.

 

In particular, this advice is essential to help prevent them from providing consent on the basis of social or cultural reasons. These rationales can involve a number of elements, including gender stereotypes and social norms.

 

On this point, it should be acknowledged that parents and guardians of intersex infants are likely to be subject to significant pressure from others that their children to conform to societal expectations (that they, and their bodies, are easily classifiable by others as either male or female).

 

This pressure can be, and has been, exploited by clinicians offering medical ‘solutions’ to what is not actually a problem in the first place, but rather simply the natural diversity of sex characteristics.

 

There is no valid social or cultural reason to modify the sex characteristics of children born with these variations, and certainly no social or cultural justification to override those children’s rights to bodily autonomy and physical integrity.

 

As part of their overall prohibition on modifications to the sex characteristics of minors in 2015, Malta explicitly prohibited such modifications due to social and cultural rationales. Given ongoing social and cultural pressures on the parents and guardians of intersex children here, Australian governments should introduce a similar prohibition.

 

Recommendation 3. Australian governments must explicitly prohibit the ability of parents and guardians to provide consent to modifications to the sex characteristics of children born with variations of sex characteristics on the basis of social or cultural rationales.

 

Even with the overall prohibition on deferrable medical interventions, the specific prohibition on parental consent based on social or cultural rationales, and the provision of peer support from intersex people and organisations, there will likely continue to be some medically necessary, non-deferrable, ‘therapeutic’ procedures performed on intersex infants and children into the future.

 

As I am not an expert in this area, I am not in a position to offer an opinion of what might constitute definitions of medical necessity or therapeutic (and alternatively, non-therapeutic) treatments. As a result, I defer to the expertise of organisations like Intersex Human Rights Australia and AIS Support Group Australia on these issues.

 

However, I do wish to make a comment on the process that should be adopted to ensure these procedures are indeed necessary, non-deferrable and therapeutic. I strongly support the creation of a new independent oversight body to review these decisions.

 

This body should not, indeed must not, be comprised solely of clinicians – particularly because it is clinicians who have been, and continue to be, the perpetrators of human rights violations on intersex infants and children. Instead, the body should include human rights experts, child advocates, and intersex-led community organisations as well as clinicians.

 

The role of the independent body would be to ventilate and consider the pros and cons of proposed medical interventions. This must include consideration of the lifelong health, legal, ethical, sexual and human rights implications of such procedures.

 

Consent or authorisation for treatment must be premised on provision of all available medical evidence on necessity, timing and evaluation of outcomes of medical interventions, including noting where there is either no evidence, or no clinical consensus, on outcomes.

 

Recommendation 4. That a new independent oversight body be created to review necessary, non-deferrable, therapeutic medical interventions on children born with variations of sex characteristics, comprising clinicians, human rights experts, child advocates and intersex-led community organisations.

 

The recommendations in this submission envisage a significant increase in the functions and responsibilities of intersex-led community organisations.

 

This includes being able to provide advice, information and support to intersex children, and their families, to inform their decision-making about medical interventions, as well as contributing to the new independent oversight body reviewing the pros and cons of medical interventions (alongside other groups).

 

It should be noted however that intersex-led community organisations, including Intersex Human Rights Australia and AIS Support Group Australia, are primarily run on a volunteer basis, with limited resources, financial or otherwise.

 

Therefore, in order to support them to perform these expanded roles efficiently and effectively, governments at both Commonwealth and state and territory level should provide ongoing funding to intersex community groups.

 

Personally, I believe this funding should go beyond the functions nominated in this submission, to incorporate broader peer support to all intersex people, including older intersex people adversely affected by human rights violations earlier in life.

 

Given the significant human rights challenges still faced by members of the intersex community, this funding should also support systemic policy advocacy by intersex-led community organisations (instead of funding to umbrella LGBTI organisations that may not have the same level of expertise or give the same level of priority to these issues).

 

Recommendation 5. That Commonwealth, state and territory governments provide ongoing funding to intersex-led community organisations, for the purposes of:

  • Peer support of individuals and families to inform decision-making about medical interventions
  • Serving on the new independent oversight body that reviews medical interventions
  • Broader peer support for all members of the intersex community, and
  • Systemic advocacy for all people with variations of sex characteristics.

 

Please do not hesitate to contact me, at the details provided, should you wish to clarify any of the above, or for additional information.

Sincerely,

Alastair Lawrie

 

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Footnotes:

[i] From the Intersex Human Rights Australia website: https://ihra.org.au/darlington-statement/

[ii] As adopted on 10 November 2017, via: https://yogyakartaprinciples.org/principles-en/yp10/

[iii] Available here: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Involuntary_Sterilisation/Sec_Report/index

[iv] Intersex Human Rights Australia, ‘Submission to the Australian Law Reform Commission on the Review of the Family Law System – Issues Paper’, 7 May 2018.

[v] Committee on the Elimination of all forms of Discrimination against Women, ‘Concluding Observations on the Eighth Periodic Report of Australia’, 20 July 2018.

 

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Criminalising Ex-Gay Therapy

[NB This article is the fifth in a series looking at the unfinished business of LGBTI equality in Australia.]

 

One of the many positive outcomes of the passage of same-sex marriage legislation late last year is that it has – finally – given greater space for the discussion of other important (in many cases, more important) issues affecting the LGBTI community.

 

One that is attracting particular attention right now is so-called ‘ex-gay therapy’, or gay conversion therapy (and the related ex-trans or trans conversion therapy).

 

Indeed, a recently released survey of 2,662 LGBTIQ people, undertaken by just.equal and PFLAG, found that ending the practice of ex-gay therapy was the top priority for reform. As reported by the Guardian, “[s]ome 93% of LGBTIQ respondents rated a national ban on ‘conversion’ or ‘reparative’ therapies as of high or very high importance.”

 

This prominence can be attributed to a range of factors including recent coverage by journalists like Farrah Tomazin, and because of campaigning from ex-gay therapy survivor Chris Csabs (I encourage you to sign his Change.org petition, here.)

 

The subject was also the centre of controversy at this year’s Victorian Liberal Party state conference, where religious extremists within the organisation sought to pass a motion in defence of this dangerous and abhorrent practice (disappointingly, Commonwealth Health Minister Greg Hunt not only failed to condemn ex-gay therapy, but when asked instead argued for the right to ‘free speech’ for those who support it).

 

The abuse of lesbian, gay, bisexual, and transgender teenagers through ex-gay and ex-trans therapy is even the subject of two upcoming films, The Miseducation of Cameron Post and Boy Erased.

 

Of course, the attention this important issue is currently receiving is also a result of previous exposes from journalists such as Jill Stark, and the substantial work of ex-gay therapy survivor, and long-term campaigner, Anthony Venn-Brown of Ambassadors and Bridge Builders International (ABBI).

 

Thanks to all of these factors, it seems the time is ripe for long-overdue action to be taken to help end the practice of ex-gay and ex-trans therapy in Australia.

 

On a policy basis, there are two clear options for reform. The first lies in the existing regulation of health practitioners. This could include providing that offering or undertaking ex-gay or ex-trans ‘treatment’ is to be considered serious malpractice, because it is unsupported by any clinical evidence for its effectiveness (with plenty of evidence that it does not and never has worked, and that it nearly always causes severe psychological harm, including contributing to numerous suicides).

 

Any doctor, psychiatrist, psychologist, counsellor or other health care professional subsequently found to engage in these practices would consequently have their registration terminated and be banned from offering any health care services to the community in the future.

 

The second option is for wider legal reform, through the criminalisation of ex-gay and ex-trans therapy. This could cover any activity advertising, offering or undertaking by any individual or organisation seeking to change a person’s sexual orientation from same-sex attracted to heterosexual, or to alter gender identity to a person being cisgender.

 

Given the significant harms caused by this practice this would then be enforced through a possible term of imprisonment. Where any victims (or potential victims) of the ex-gay or ex-trans therapy are minors – who are therefore particularly vulnerable to such abuse – this fact could be treated as an aggravating factor, leading to increased penalties.

 

At this stage, only one Australian jurisdiction has taken concrete actions to prohibit ex-gay and ex-trans therapy, and that is Victoria, which has in fact adopted a ‘hybrid’ approach.

 

In 2017, the Andrews Labor Government created the Health Complaints Commissioner, which can investigate complaints against (some) registered and all ‘unregistered’ health practitioners, with the first appointee confirming that this would include pseudo-counselling services providing ex-gay and ex-trans therapy.

 

Where the Commissioner finds that a service is harmful, they can order the practitioner or organisation to cease providing it – and if they fail to do so, they can then be prosecuted, and potentially imprisoned (section 98 of the Health Complaints Act 2016 (Vic) provides that ‘a general health service provider who has been served with a prohibition order must comply with the order’, with a maximum penalty for a natural person for breaching this order of 240 penalty units or 2 years imprisonment, and for a body corporate of 1200 penalty units).

 

While these provisions are obviously a welcome step forward, it should be noted that there were no formal complaints in the first 12 months of the Commissioner’s operation (something that will hopefully be addressed by the current investigation into ex-gay therapy by the Commissioner).

 

Perhaps the bigger problem (or at least my problem with the Victorian approach) is that the act of providing ex-gay or ex-trans therapy itself is not criminalised. Even in the absence of a prohibition order by the Commissioner, this practice is so dangerous, and so harmful, that I believe it should attract criminal sanction in and of itself.

 

So-called ‘conversion therapy’ is, after all, nothing less than targeted psychological abuse, leading to severe actual or potential harm.

 

As this issue is hopefully addressed by other states and territories in coming months (with commitments already in place from some jurisdictions, such as the Australian Capital Territory) I think they should adopt both approaches:

 

  • The regulation of health practitioners, both registered and unregistered, who offer or undertake ex-gay or ex-trans therapy, and
  • The criminalisation of advertising, offering or undertaking ex-gay or ex-trans therapy by any individual or organisation, subject to potential imprisonment and including higher penalties where the victim (or potential victim) is a minor.

 

By implementing both, hopefully this abhorrent practice will finally be a thing of the past.

 

15545830873miseducatstill

Ex-gay therapy is having a cultural ‘moment’, with films like The Miseducation of Cameron Post (which is great, by the way). The question is whether Australian states and territories will seize the momentum that currently exists and ban this abhorrent practice once and for all.

Identity, not Surgery

[NB This article is the fourth in a series looking at the unfinished business of LGBTI equality in Australia.]

 

Last month, I wrote about the push to end forced trans divorce, which will help to finally deliver marriage equality to trans and gender diverse Australians.

 

However, ending forced trans divorce is only one small part of the wider battle to ensure trans and gender diverse people can access identity documentation, including birth certificates, that reflects who they are.

 

A bigger – and arguably more important – challenge is ensuring that people can update their identification without the need for surgery, and without doctors or other medical professionals acting as ‘gate-keepers’ (that is, the inappropriate medicalisation of gender identity).

 

In practice, I would argue that there are (at least) three principles that should be reflected in the law in this area:

 

  1. Access to amended identity documentation must not depend on surgery or other medical treatments
  2. Access to amended identity documentation must not depend on approval by doctors or other medical professionals, and
  3. Access to amended identity documentation should be granted on the basis of self-identification, through a statutory declaration.

 

Unfortunately, as we shall see below, the laws of most states and territories fail to adopt these principles – in most cases, falling short on all three.

 

NSW

 

In New South Wales, the Births, Deaths and Marriages Registration Act 1995 provides that, in order to apply to alter the register to record change of sex, a person must first have ‘undergone a sex affirmation procedure’ (section 32B), which is defined in section 32A as:

 

‘means a surgical procedure involving the alteration of a person’s reproductive organs carried out:

a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or

b) to correct or eliminate ambiguities relating to the sex of the person.’

 

Section 32C then requires any application to ‘be accompanied by… statutory declarations by 2 doctors, or by 2 medical practitioners registered under the law of any other state, verifying that the person the subject of the application has undergone a sex affirmation procedure.’

 

In short, NSW law reflects worst practice in this area, and is in urgent need of reform.

 

Such reform was being considered three years ago by Independent Member for Sydney Alex Greenwich as part of his discussion paper looking at removing the surgical requirements for changes to birth certificates (see my submission to that consultation process here).

 

There were also hopeful comments of possible movement in this area during parliamentary debate on the recent bill that abolished forced trans divorce in NSW, however trans and gender divorce people need more than just indications of possible future co-operation, they need practical action now.

 

Victoria

 

Victoria is another jurisdiction with ‘worst practice’ laws in this area. The Births, Deaths and Marriages Registration Act 1996 requires that, in order to apply to alter sex on the register, the person must have ‘undergone sex affirmation surgery’ (section 30A).

 

This application ‘must include statutory declarations, verifying that the applicant has undergone sex affirmation surgery, by:

a) 2 doctors; or

b) 2 medical practitioners registered under the law of the place where the sex affirmation surgery was performed – who performed the surgery or provided other medical treatment to the applicant in connection with the applicant’s transsexualism.’

 

To its credit, the Victorian Andrews Labor Government attempted to amend these requirements in 2016, although those changes were thwarted by the Liberal and National Parties in the upper house. Hopefully, if the Andrews Government is re-elected in November 2018, they will be more successful on this issue next term.

 

Queensland

 

Queensland is another jurisdiction that falls short on all three criteria, although there is more cause for optimism that these laws will be changed in the near future.

 

Currently, section 22 of the Births, Deaths and Marriages Registration Act 2003 provides that ‘the reassignment of a person’s sex after sexual reassignment surgery may be noted in the person’s entry in the register of births’.

 

Section 23 then includes the ‘the application must be… accompanied by… statutory declarations, by 2 doctors, verifying that the person the subject of the application has undergone sexual reassignment surgery…’

 

However, when the Queensland Government ended forced trans divorce earlier this year, they indicated they were also actively considering further reforms to identity documentation for trans and gender diverse people. And they supported those statements by undertaking a public consultation process looking at ‘Registering Life Events’ (see my submission to that discussion paper here), which included discussion of removing surgical pre-requisites.

 

Hopefully they follow through on their commitments in this area – and if they don’t, it’s up to the community to put pressure on them to do so.

 

Western Australia

 

Western Australia’s legislation, the Gender Reassignment Act 2000, is also in need of reform, although in this case the High Court has at least helped to clarify that surgery is not a pre-requisite for access to amended identity documentation.

 

First, to the text of the legislation itself. Section 14 provides that applications for recognition certificates may be made by a person that ‘has undergone a reassignment procedure’.

 

Under section 15(b), the Gender Reassignment Board may then issue a certificate if it “is satisfied that the person-

i) believes that his or her true gender is the gender to which the person has been reassigned; and

ii) has adopted the lifestyle and has the gender characteristics of a person of the gender to which the person has been reassigned; and

iii) has received proper counselling in relation to his or her gender identity.”

 

Importantly, section 3 defines ‘reassignment procedure’ as “a medical or surgical procedure (or a combination of such procedures) to alter the genitals and other gender characteristics of a person, identified by a birth certificate as male or female, so that the person will be identified as a person of the opposite sex and includes, in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child’s gender characteristics.”

 

In practice, however, the Gender Reassignment Board declined to issue gender reassignment certificates to two trans-men who were undertaking testosterone therapy and had undergone bilateral mastectomies on the basis that they had not also had surgery on their genitals.

 

These two men successfully challenged this decision in the High Court, which in AB v Western Australia; AH v Western Australia [2011] HCA 42 6 October 2011, clarified that “a surgical procedure to alter the genitals or other gender characteristics is not required of an applicant for a recognition certificate. The definition of ‘reassignment procedure’ refers to a ‘medical or surgical procedure’” [emphasis in original].

 

Nevertheless, while this decision was welcome, enabling these two men to access updated identity documentation, this decision still does not mean that future access is based on self-identification. As noted by the Court:

 

“The construction placed upon s 15(1)(b)(ii) and the identification which is its concern, does not mean that a recognition certificate is to be provided based only upon a person’s external appearance, and that person’s belief about his or her gender. Section 14 must be satisfied before a person can apply for a certificate.”

 

Therefore, there is still a need for the Western Australian Parliament to amend these laws, to remove all requirements for medical or surgical procedures, and to finally allow trans and gender diverse people to determine their own identities.

 

South Australia

 

South Australia’s Births, Deaths and Marriages Registration Act 1996 is one of the few relevant laws that doesn’t fail on all three criteria – although it still involves unnecessary medicalisation of trans and gender diverse people’s identities.

 

Section 29L of the Act provides that if ‘the Registrar is satisfied that the applicant has undertaken a sufficient amount of appropriate clinical treatment in relation to their sex or gender identity, the Registrar may make an entry about the change of the person’s sex or gender identity in the Register…’

 

Section 29H clarifies that ‘clinical treatment need not involve invasive medical treatment (and may include or be constituted by counselling).’

 

Although the Act still requires that ‘clinical treatment constituted by counselling only cannot be regarded as a sufficient amount of appropriate clinical treatment unless the period of the counselling is equal to or greater than the prescribed period.’

 

Regulation 7C of the Births, Deaths and Marriages Regulations 2011 states that ‘the prescribed period may be comprised of:

a) at least 3 separate counselling sessions aggregating 135 minutes; or

b) counselling sessions occurring over a period of at least 6 months.’

 

And section 29K provides that an application to change sex or gender ‘must be accompanied by… a statement by a medical practitioner or psychologist certifying that the person has undertaken a sufficient amount of appropriate clinical treatment in relation to the person’s sex or gender identity (including in the case of a person whose sex or gender identity has now become determinate)…’

 

So, even though South Australia has thankfully abolished the requirement for surgery in order to have a change of sex recorded, it still places undue emphasis on clinical treatment, and elevates doctors and/or psychologists to the place of ‘gate-keepers’ for trans and gender diverse people accessing identity documents. It should be replaced by a self-identification scheme, based on statutory declarations – nothing more and nothing less.

 

Tasmania

 

Tasmania has best practice LGBTI legislation in a range of areas, including anti-discrimination laws – but sadly identity documentation is not one of them.

 

Section 28A of the Births, Deaths and Marriages Registration Act 1999 provides that application to register change of sex requires that the person ‘has undergone sexual reassignment surgery.’

 

This must ‘be accompanied by a statutory declaration from each of 2 medical practitioners verifying that the person who is the subject of the application has undergone sexual reassignment surgery…’

 

In recent weeks, Tasmanian trans and gender diverse campaigners, under the banner Transforming Tasmania, have initiated a push to achieve a range of reforms to identity documentation laws, calling for better access to birth certificates much more broadly than just ending forced trans divorce.

 

ACT

 

The Australian Capital Territory adopts a similar approach to South Australia on this issue.

 

Section 24 of the Births, Deaths and Marriages Registration Act 1997 provides that a person applying to have the register amended to reflect a change of sex must have ‘received appropriate clinical treatment for alteration of the person’s sex.’ This term does not appear to be defined, meaning it does not explicitly require surgical intervention.

 

However, just like South Australia, the role of doctors and medical professionals as ‘gate-keepers’ is confirmed by section 25, which requires that any application ‘must be accompanied by a statement by a doctor, or a psychologist, certifying that the person has received appropriate clinical treatment for alteration of the person’s sex…’

 

Therefore, while the ACT has the equal-best current regime of any state or territory, it must still be amended to remove the requirement for ‘appropriate clinical treatment’ – as interpreted and approved by a medical professional – and allow trans and gender diverse people to determine their own gender identity.

 

NT

 

The Northern Territory Births, Deaths and Marriages Registration Act incorporates the worst elements of laws in other jurisdictions.

 

Section 28B limits applications to change the register to people who have ‘undergone sexual reassignment surgery’. This is defined under section 28A as ‘a surgical procedure involving the alteration of a person’s reproductive organs carried out to assist a person to be considered a member of the opposite sex…’

 

Section 28C then provides that the application must ‘be accompanied by the prescribed evidence, if any, that verifies that the adult… the subject of the certificate has undergone sexual reassignment surgery.’

 

Regulation 4A of the Births, Deaths and Marriages Regulations then provides that this evidence must include ‘2 statutory declarations, each by a medical practitioner who is entitled to practise medicine within the Commonwealth, declaring that the adult… has undergone sexual reassignment surgery and has changed sex.’

 

Once again, the Northern Territory needs to amend its laws to ensure that trans and gender diverse people can apply to have their gender identity recognised without the need for surgery beforehand, and without the need for a doctor’s sign-off.

 

**********

 

Trans and gender diverse Australians are exactly that: diverse. Not all will seek medical treatment as part of transition, and only some will undertake surgical interventions (while some others may wish to, but are currently prevented due to the exorbitant costs involved and a lack of Commonwealth Government financial support).

 

But their gender identities should be recognised irrespective of whether they had surgery, and irrespective of the type of other medical interventions they have received (if any). The law should be changed to reflect identity, not surgery. And trans and gender diverse Australians must be in control of that identity, not doctors or other medical professionals.

 

28256

Ending Forced Trans Divorce: Mission Half Accomplished

[NB This article is the second in a series looking at the ‘unfinished business’ of LGBTI equality in Australia]

 

This weekend marks six months since the passage of legislation that finally allowed lesbian, gay, bisexual, transgender and intersex people the right to marry under Australian law.

 

Well, most LGBTI people. Because it did not immediately overrule the laws of some Australian states and territories that prevent people who are married from changing their identity documentation to reflect their gender identity. In effect, making some trans and gender diverse people choose between the recognition of their relationship, and recognition of who they are.

 

Instead, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 gave states and territories 12 months in which to update relevant legislation to provide married people with the same opportunity to update their birth certificates as unmarried people.

 

At the end of this 12-month period, the existing exemption under sub-section 40(5) the Sex Discrimination Act 1984 will be repealed:

 

Nothing in Division 2 renders it unlawful to refuse to make, issue or alter an official record of a person’s sex if a law of a State or Territory requires the refusal because the person is married.

 

So, half way to this deadline, how have the states and territories responded?

 

First, there are two jurisdictions that had already abolished forced trans divorce prior to the passage of the Marriage Amendment (Definition and Religious Freedoms) Act:

 

The Australian Capital Territory, where section 24(1) of the Births, Deaths and Marriages Registration Act 1997 does not make any distinction on the basis of whether a person is married or unmarried, and

 

South Australia, where sub-section 29I(3) of the Births, Deaths and Marriages Registration Act 1996 explicitly states that an application to change sex or gender identity ‘may be made under this section even if the person is married.’

 

There are two other states that have passed legislation in the past six months to repeal forced trans divorce:

 

Victoria, where Parliament approved the Justice Legislation Amendment (Access to Justice) Act 2018 on 22 May. Among other things, this law repealed the requirement in section 30A of the Births, Deaths and Marriages Registration Act 1996 that a person be unmarried in order to apply to alter their details on the register, and

 

New South Wales, which only last week passed the Miscellaneous Amendment (Marriages) Act 2018. Similar to the Victorian Act, this legislation removes the requirement in sub-section 32B(1)(c) of the Births, Deaths and Marriages Registration Act 1995 that a person be unmarried in order to apply to alter the register to record change of sex.

 

Which means that, half way to the December 2018 deadline, half of Australian jurisdictions have ended forced trans divorce. Mission half accomplished.

 

Of the other jurisdictions, only one has shown movement to abolish this out-dated and unjust law so far:

 

The Queensland Government has introduced the Births, Deaths and Marriages Amendment Bill 2018 into Parliament, which would remove the requirement in section 22 of the Births, Deaths and Marriages Registration Act 2003 that a person be unmarried for their sexual reassignment to be noted on the register. It has already been the subject of a Parliamentary inquiry, and will hopefully be passed shortly. [NB This legislation was passed on Wednesday 13 June 2018, ending forced trans divorce in Queensland.]

 

Which leaves three jurisdictions that still need to start the process of ending forced trans divorce:

 

Western Australia, where sub-section 15(3) and section 18 of the Gender Reassignment Act 2000 mean a person cannot access a recognition certificate, and therefore new birth certificate, if they are married.

 

Tasmania, where sub-section 28A(1)(c) of the Births, Deaths and Marriages Registration Act 1999 excludes married people from applying to register a change of sex, and

 

The Northern Territory, where sub-section 28B(1)(c) of the Births, Deaths and Marriages Registration Act has the same effect.

 

This post will be progressively updated to reflect (hopefully) developments in Western Australia, Tasmania and the Northern Territory.

 

The good news is that, even if those jurisdictions fail to take action, the Commonwealth Sex Discrimination Act will eventually overrule these provisions, thereby allowing trans and gender diverse people who are already married to apply to update their identity documentation.

 

However, it will be much simpler if these jurisdictions take pro-active steps to update their laws before then. It is also a symbolically important step, so that provisions that have had such a negative impact on trans and gender diverse Australians for so long are wiped from the statute books entirely.

 

28256

Unfairness in the Fair Work Act

This article is the first in a planned series looking at some of the outstanding issues that must be addressed in order to achieve genuine equality for lesbian, gay, bisexual, transgender and intersex (LGBTI) people in Australia.

 

These posts are not proposed in any order of priority, but will hopefully cover many of the barriers that remain, both big and small, as well as challenges that affect often-marginalised groups within the LGBTI community.

 

The first item of ‘unfinished business’ that I have chosen to write about is the discrimination that remains in the Commonwealth Fair Work Act 2009.

 

This unfairness includes two distinct issues, one relatively well-known (and which exists in other legislation, such as the Commonwealth Sex Discrimination Act 1984), the other much less so.

 

Starting with the sometimes-overlooked problem first: did you know that the Fair Work Act 2009 does not protect trans, gender diverse and intersex people against workplace discrimination?

 

While this legislation prohibits adverse treatment on the basis of sexual orientation – thereby protecting lesbians, gay men and bisexuals (at least to some extent: see the discussion below) – it does not include equivalent protections for trans, gender diverse and intersex people.

 

For example, sub-section 351(1) provides that ‘An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

 

Note that this list excludes both gender identity (which would cover trans and gender diverse people) and intersex status (the term used in the Sex Discrimination Act 1984 to protect intersex people, although the intersex community has since advocated for this to be updated to ‘sex characteristics’; see the Darlington Statement).

 

The same list of attributes, with the same exclusions, is found in sub-section 772(1)(f) which protects employees against unlawful termination.

 

In short, the Fair Work Act 2009 (Cth) does not protect trans, gender diverse and intersex Australians from mistreatment or unfair dismissal based on who they are. This is either a gross oversight, or a deliberate choice to treat transphobic and intersexphobic workplace discrimination less seriously than other forms of mistreatment.

 

Nor are these the only sections of the Fair Work Act to omit trans, gender diverse and intersex people:

 

  • Section 153 provides that discriminatory terms must not be included in modern awards. The list of relevant attributes includes sexual orientation, but excludes gender identity and sex characteristics;
  • Section 195 includes a similar prohibition on discriminatory terms in enterprise agreements, and once again omits trans, gender diverse and intersex people; and
  • Sub-section 578(c) provides that the Fair Work Commission must perform its functions taking into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

 

There is literally no requirement in the Act for the Fair Work Commission to help prevent or eliminate transphobic and intersexphobic workplace discrimination.

 

There can be no justification for these omissions. Nor can there be any excuse for the Government, or Parliament more broadly, not to pass urgent amendments to ensure trans, gender diverse and intersex Australians are finally included in the Commonwealth Fair Work Act 2009.

 

Here are my letters to the Prime Minister, and the Minister for Jobs and Innovation, asking them to do exactly that:

 

**********

 

The Hon Malcolm Turnbull MP

Prime Minister of Australia

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

 

27 May 2018

 

Dear Prime Minister

 

Please include trans, gender diverse and intersex people in the Fair Work Act

 

On 15 November last year, in your press conference following the announcement of the 61.6% Yes vote in the same-sex marriage postal survey, you said that: ‘we are a fair nation. There is nothing more Australian than a fair go. There is nothing more Australian than equality and mutual respect.’

 

A little later in that same press conference you added: ‘we are a nation of a fair go and mutual respect and we treat people equally. We don’t discriminate against people because of their gender of their sexual orientation, their religion or race or the colour of their skin.’

 

Unfortunately, trans, gender diverse and intersex Australians are still a long way from receiving a ‘fair go’, and that includes being treated unfairly within the Commonwealth Fair Work Act 2009.

 

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

 

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

 

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

 

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

 

I am writing to ask that you, and your Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

 

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

 

If you fail to do so, you will be continuing to deny a ‘fair go’ to trans, gender diverse and intersex Australians, and your words of 15 November last year will ring hollow.

 

Sincerely,

Alastair Lawrie

 

 

**********

 

Senator the Hon Michaelia Cash

Minister for Jobs and Innovation

PO Box 6100

Senate

Parliament House

Canberra ACT 2600

via minister.cash@jobs.gov.au

 

27 May 2018

 

Dear Minister Cash

 

Please include trans, gender diverse and intersex people in the Fair Work Act

 

I am writing to you about the Commonwealth Fair Work Act 2009, which you administer, and specifically its failure to adequately protect trans, gender diverse and intersex employees against workplace discrimination.

 

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

 

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

 

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

 

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

 

I am writing to ask that you, and the Liberal-National Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

 

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

 

If you fail to do so, you will be failing to ensure trans, gender diverse and intersex Australians receive a ‘fair go’ in their jobs.

 

Sincerely,

Alastair Lawrie

 

**********

 

The second, much better-known, issue of unfairness in the Fair Work Act 2009 is its inclusion of extensive ‘religious exceptions’. These are loopholes that allow religious organisations to discriminate against employees on the basis of their sexual orientation (and would likely allow discrimination on the basis of gender identity were it to be included as a protected attribute in the Act in future).

 

The Fair Work Act entrenches these loopholes in two ways.

 

First, the prohibition on adverse treatment in section 351 (described above) does not apply to any action that is ‘not unlawful under any anti-discrimination law in force in the place where the action is taken’ (sub-section (2)(a)).

 

This means that the Fair Work Act reinforces the religious exceptions that already exist in the Commonwealth Sex Discrimination Act 1984, and its state and territory equivalents (other than the Tasmanian Anti-Discrimination Act 1998),[i] which permit anti-LGBT discrimination.

 

However, the Fair Work Act then includes its own ‘religious exceptions’ in sub-section 351(2)(c), allowing adverse treatment ‘if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.’

 

In effect, the Act provides two different avenues for religious organisations to justify mistreating employees simply because of their sexual orientation.

 

The protection against unfair dismissal in section 772 also includes its own ‘religious exception’, while even the terms of modern awards (section 153) and enterprise agreements (section 195) are allowed to be explicitly discriminatory on the basis of sexual orientation where it relates to employment by a religious institution.

 

There is, however, one important difference between the religious exceptions in this Act and those that are contained in the Sex Discrimination Act 1984: the Fair Work Act religious exceptions technically apply across all protected attributes.

 

This means that, theoretically at least, a religious organisation could claim its beliefs required it to discriminate on the basis of race, or even physical or mental disability – and that it would therefore be protected from any adverse consequences under the Act.

 

Of course, in practice we all know that religious exceptions are most likely to be used to justify discrimination against women (including unmarried and/or pregnant women) and LGBT people.

 

Unfortunately, the Ruddock Religious Freedom Review recently handed to Prime Minister Malcolm Turnbull (although not yet publicly released) is likely to recommend that these loopholes are expanded, rather than drastically reduced. That is a subject I am sure I will be writing about further in coming months.

 

Nevertheless, in the meantime we should continue to highlight the injustice of religious exceptions, including those found in the Fair Work Act and elsewhere, and campaign for their removal.

 

One such campaign, called ‘Change the Rules on Workplace Discrimination’, is currently being run by the Victorian Gay & Lesbian Rights Lobby. I encourage you to sign their petition, here.

 

Ultimately, we need to collectively work towards a Fair Work Act that covers all parts of the LGBTI community – and that doesn’t feature extensive ‘religious exceptions’ allowing discrimination against us.

 

151222 Turnbull

Malcolm Turnbull claims Australia is a ‘nation of a fair go’. But will he ensure trans, gender diverse and intersex people receive a fair go under the Fair Work Act?

 

Footnotes:

[i] For more information on the differences in these laws, see A quick guide to Australian LGBTI anti-discrimination laws.