Submission re Mandatory BBV Testing Options Paper

Posted on October 31, 2018 by Alastair Lawrie

The NSW Department of Justice has released an Options Paper considering whether to impose ‘mandatory disease testing’ for people whose bodily fluids come into contact with emergency services personnel. You can find more details of that consultation here.

This is my personal submission:

via mdtsubmissions@justice.nsw.gov.au

Wednesday 31 October 2018

To whom it may concern,

Thank you for the opportunity to provide a submission to this public consultation process.

I write this submission as a former employee in the blood borne virus (BBV)/health sector, and as someone who supports the rights of people living with HIV, hepatitis C and hepatitis B.

I wish to express my serious concerns with any proposal for the mandatory testing of people whose bodily fluids come into contact with emergency services workers, including police.

These concerns are based on a number of factors, including:

The Options Paper places undue emphasis on the number of incidents of exposure to bodily fluids, not the number of transmissions

The table on page 8 outlines the total number of incidents of exposure to bodily fluids per year, including for NSW Police, Corrective Services and Health. These numbers are obviously quite high – especially in relation to NSW Health – however, they are not further categorised by the number of incidents in which the risk of BBV transmission is high, and therefore is inflated by a large proportion of incidents in which the risk of transmission is low or negligible.

Perhaps more importantly, while the paper includes the number of incidents of exposure to bodily fluids, it does not include any information on the number of actual transmissions of HIV, hepatitis C or hepatitis B in these contexts, presumably because these figures are also low or negligible.

For example, I understand that despite the high number of exposures within NSW Health, there have been no confirmed cases of HIV transmission for a health care worker following occupational exposure in NSW since 1994, and nationally since 2002.

I do not wish to underestimate the anxiety that may be experienced by an emergency services worker following an incident of exposure to bodily fluids. However, a focus on the number of incidents of exposure to bodily fluids, while ignoring the very low number of transmissions of BBVs, is likely to exacerbate rather than alleviate such anxiety.

The ‘window period’ means that mandatory testing for BBVs cannot offer the level of comfort that its advocates claim

The push for new laws in this area, introducing mandatory testing for BBVs, by organisations including the Police Association, appears to be motivated by a desire to provide comfort to emergency services personnel who are exposed to bodily fluids in the course of their work.

However, the respective window periods for detection of HIV, hepatitis C and hepatitis B mean that mandatory testing of the ‘source’ person of these fluids cannot offer genuine comfort for these employees. This fact is conceded in the Options Paper itself, on page 13: ‘Because of the window period, it can never be known for certain at the time of testing whether the source person is infectious.’

It is possible to imagine that the results of mandatory testing in these circumstances will instead lead to negative outcomes for the emergency services personnel themselves.

For example, an employee may feel relieved by a negative test of the ‘source’ person, and then, perhaps not fully understanding window periods or simply acting on ‘false confidence’, fail to take appropriate precautions to prevent onwards transmission to their partner, family or others.

On the other hand, a positive test of the ‘source’ person, for one or more BBVs, may lead to heightened anxiety for the emergency services employee, for several months, despite the fact the overall risk of transmission from the particular incident remains low.

Again, this scenario is contemplated in the Options Paper itself, on page 35: ‘even where the source person tests positive, there are varying degrees of risk that the disease will transmit to the emergency services worker. A further consideration is that a positive test result from a source person could have the opposite effect than intended by adding to a worker’s stress, rather than ameliorating it.’

In short, mandatory BBV testing cannot provide what its advocates want. Thus, option 2 – which calls for ‘changes to agency policy to allow the source person to be assessed, counselled and asked to consent to a sample being taken for testing by a health care professional’ – should not be supported.

A better approach would be to focus on providing appropriate health services to emergency services workers

In my view, it would be more effective to ensure that the health services offered to these employees are best practice.

This is contemplated in option 1: ‘improvements to agency policy and practice to ensure emergency services personnel are promptly assessed, counselled and managed by a health care professional with access to specialist advice immediately following an exposure to potentially infectious body fluids.’

This should be supplemented by increased education of emergency services personnel on the routes of BBV transmission, including how to minimise risks of work-related transmission and how to respond to exposure to bodily fluids.

There should also be ongoing programs to ensure all emergency services employees are vaccinated for hepatitis B, that where relevant they have prompt access to Post-Exposure Prophylaxis (PEP) for HIV and immunoglobulin for hepatitis B, and that highly-effective hepatitis C treatments remain available for all Australians who require it.

Mandatory testing undermines Australia’s successful BBV response which is based on consent

Australia has embraced a world-leading response to multiple blood borne viruses, including HIV and more recently hepatitis C.

In both cases, it is based on principles of informed consent and voluntary testing, engagement with affected communities, provision of harm reduction initiatives and the roll-out of treatment across the community.

The introduction of mandatory testing undermines this approach. Indeed, international bodies such as UNAIDS and the World Health Organisation (WHO) oppose mandatory testing because it compromises public health initiatives and efforts to reduce HIV and other BBV transmission.

For these reasons I am strongly opposed to option 3, which is described as ‘a consent-based scheme, with an option for a court ordered mandatory disease testing’.

On page 20, the Options Paper even claims that ‘The advantages of the consent process still apply, and informed consent is the basis for seeking testing. It is anticipated that a sample would be obtained in most cases, as most people would agree to be tested’.

In my opinion, it is highly misleading to state that such a scheme has anything to do with consent. It would more accurately be described as a duress-based scheme, especially because, as outlined on page 19, if the person does not provide ‘consent’ the emergency services agency may then apply to a court for a mandatory disease testing order and:

‘Where the source person does not complywith the court order, the relevant agency may apply to the court for a custody order with warrant. Police may apprehend and detain the source person for the purpose of taking the sample’ (emphasis in original).

This threat negates any consent that may be provided by anyone under this model.

The involvement of police in health-related risk assessments cannot be supported

Option 4 – which is described as ‘a scheme that would apply where an offence has been committed, with mandatory disease testing ordered by a senior police officer’ – has all of the disadvantages of option 3 (above), as well as raising other serious concerns.

The first and most obvious is that police officers are not appropriately qualified to undertake health-related risk assessments. This is again conceded on page 26, which notes: ‘A risk assessment conducted by a senior police officer (or senior correctional officer) offers practical advantages. However, they do not possess the medical expertise offered by health care professionals.’

However, perhaps an even larger problem is created by the criteria that would allow officers to order a test, including the following factor (on page 23):

‘The incident involves a suspected offence or has occurred during the lawful apprehension and detention of a person. For example, the exposure may occur during an assault on the emergency services worker, or while a police officer is arresting a person.’

It should be remembered that a significant proportion of suspected offences are never proven, and that charges in relation to the incident may ultimately be dropped (often several months afterwards). There are also occasions when the lawfulness of the individual’s apprehension and detention are contested, again usually some time later.

However, even if charges are dropped and/or the detention is subsequently found to be unlawful, in the meantime the individual would have already been subjected to an invasive and involuntary medical procedure (or indeed been charged again for failing to provide a sample).

It is even possible to see how, in an incident involving exposure to bodily fluids, such a scheme could operate as an incentive for police to allege an offence has occurred in order to obtain a BBV test from the source person.

This option is therefore not just poor from a health but also a legal perspective.

Mandatory BBV testing creates significant privacy concerns

All of options 2, 3 and 4 generate significant concerns for the privacy of people who undergo BBV testing. This is because the test results are automatically disclosed to the affected emergency services worker.

While it is proposed that safeguards be introduced to ensure the test results are not further disclosed, it is easy to foresee circumstances in which positive results will be disclosed either inadvertently or deliberately during this process.

This is obviously of significant concern for people living HIV, hepatitis C or hepatitis B, who have a right to control their health information, including choosing when, and to whom, they disclose their status.

These concerns are especially acute for people who may be diagnosed as a result of a mandatory BBV test in these circumstances. They will immediately and involuntarily have their status disclosed outside the health context to an emergency services or law enforcement employee, who is most likely a stranger to them and in whom they cannot necessarily place trust not to disclose to others.

This could be an incredibly disempowering experience for the individual concerned and, if health workers are involved in this process (for example, performing the test), could alienate them from the very services they should be accessing for support and (if they so choose) treatment.

It is revealing that the Options Paper discusses, at-length, multiple options in an effort to alleviate the concerns of emergency services workers who are exposed to bodily fluids, despite the fact it is highly unlikely they will ultimately contract a BBV, but spends little to no time discussing the consequences of a positive test result for the ‘source’ person, which is actually the more likely scenario.

This further illustrates that the proposals for mandatory BBV testing are not health- or evidence-based.

Conclusion

As outlined above, I have serious concerns about the proposals outlined in the Options Paper, and especially options 2, 3 and 4.

The ‘window periods’ for HIV, hepatitis C and hepatitis B mean there is limited public health benefit from introducing mandatory BBV testing. On the other hand, there are significant risks, including:

Undermining principles of informed consent (and therefore compromising Australia’s world-leading BBV responses)
Inappropriately involving police in health-related risk assessments and medical procedures, and
Creating serious privacy concerns, especially for people diagnosed as a result of mandatory testing.

The preferred approach would be to ensure that emergency services personnel have access to appropriate information and health services, as outlined in option 1 (‘improvements to agency policy and practice to ensure emergency services personnel are promptly assessed, counselled and managed by a health care professional with access to specialist advice immediately following an exposure to potentially infectious body fluids’).

Therefore, while option 1 can be supported, options 2, 3 and 4 should all be rejected.

Please do not hesitate to contact me, at the details provided, should you require further information.

Sincerely,

Alastair Lawrie

Genderless (Notices of Intended) Marriage

Posted on October 28, 2018 by Alastair Lawrie

The Commonwealth Attorney-General’s Department is currently consulting about the Notice of Intended Marriage form. Submissions close today, 28 October 2018 (for more information, click here). Here’s mine:

**********

Commonwealth Attorney-General’s Department

via marriagecelebrantssection@ag.gov.au

Sunday 28 October 2018

To whom it may concern

Notice of Intended Marriage Consultation

Thank you for the opportunity to provide a submission to this consultation.

My comments relate to only one section of the revised Notice of Intended Marriage form, and that is:

Gender (optional) Male, Female or Non-Binary.

This is required to be completed for both parties to an intended marriage.

The inclusion of this question is entirely unnecessary and it should be removed.

It is unnecessary because, following the Marriage Amendment (Definition and Religious Freedoms) Act 2017, there is generally no gender (or sex) based restriction on whether couples are able to lawfully marry.

This status will be reinforced on December 9 this year when, for those states and territories that have yet to abolish forced trans divorce, the exception provided by the Commonwealth Sex Discrimination Act 1984 to permit this unjustifiable discrimination will expire.

This question is also unnecessary to establish identity, which is proved by name, date and place of birth and the requirement to supply identity documentation on the subsequent page of the form. Logically, it is clearly unnecessary to prove identity it if answering is optional.

It should be removed because of the growing recognition of, and respect for, the full diversity of the Australian community, particularly in terms of sex, sex characteristics and gender identity.

As a cisgender gay man and LGBTI advocate I acknowledge the advice of trans, gender diverse and intersex individuals and organisations that, in order to be fully inclusive of their diversity, requests for information about sex and/or gender should only be included if they can be shown to serve a valid purpose.[i]

I can see no such purpose in this instance.

Recommendation 1: Question 3 of the Notice of Intended Marriage form should be removed.

If the above recommendation is not agreed, then it is my strong view this question should remain optional.

Further, given the question serves no valid purpose (in terms of determining whether a person is eligible to marry, or in verifying their legal identity) I suggest that the current three options of Male, Female and Non-Binary be removed. Instead it should simply state:

Gender (optional), please specify

This should be a write-in box, and have no other prompts for information. Amending the question in this way would allow people to enter their own gender identity, including those who may not identify with any of Male, Female, or Non-Binary.

Recommendation 2: If question 3 is retained, it must continue to be optional, and should ask for Gender, please specify, followed by a write-in box.

With the passage of last year’s amendments to the Marriage Act 1961, and the imminent abolition of forced trans divorce, marriage in Australia will shortly be available to all couples, irrespective of sex, sex characteristics, sexual orientation and gender identity.

That is what 61.6% of Australians said yes to (in the Liberal-National Government’s unnecessary, wasteful, divisive and harmful postal survey).

This equality-of-access should be reflected in the Notice of Intended Marriage form, by removing the optional question that asks for the gender of the participants, because it is no longer relevant in 2018.

Please do not hesitate to contact me at the details provided should you require additional information.

Sincerely

Alastair Lawrie

images-1

Footnotes:

[i] See for example article 8 of the 2017 Darlington Statement of intersex advocates from Australia and Aoteoroa/New Zealand, which includes:

“Undue emphasis on how to classify intersex people rather than how we are treated is also a form of structural violence. The larger goal is not to seek new classifications, but to end legal classification systems and the hierarchies that lie behind them. Therefore:

a) As with race or religion, sex/gender should not be a legal category on birth certificates or identification documents for anybody” (emphasis in original).

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

Posted on October 19, 2018 by Alastair Lawrie

Update 5 March 2019:

The Law Reform Commission of Western Australia has handed down its final report of its Review of Western Australian legislation in relation to the registration or change of a person’s sex and/or gender and status relating to sex characteristics (a copy of the report is available here).

It is generally well-considered, and largely positive for the trans, gender diverse and (in parts at least) intersex communities.

This includes Recommendation 1 that “The Equal Opportunity Act 1984 (WA) be amended to include protections against discrimination based on gender identity and intersex status” (although the latter protected attribute should instead be ‘sex characteristics’ in line with the Yogyakarta Principles plus 10).

There are also a range of recommendations that clarify the difference between sex and gender (and which one should be recorded in different contexts).

The most controversial recommendations (albeit ones I support) are:

Recommendation 5

Sex classification be removed from birth certificates

Recommendation 6

The Births, Deaths and Marriages Registration Act 1998 (WA) and the Births, Deaths and Marriages Registration Regulations 1999 (WA) be amended to expressly prohibit the recording of sex or gender on birth certificates.

This would then be replaced by an opt-in system of ‘Gender Identity Certificates’ for situations where gender may be relevant:

Recommendation 7

The Births, Deaths and Marriages Registration Act 1998 (WA) be amended to provide an application process for a person born in Western Australia to apply for a Gender Identity Certificate (with Recommendation 8 covering people born outside WA).

Importantly, under Recommendation 9, the gender markers included in these certificates would be expanded to include male, female and non-binary (although it does not include an ‘other’ category, as suggested in my submission to the Review, published below).

The WALRC further recommends that there no longer be any surgical or medical barriers for people to update their Gender Identity Certificate, instead proposing a simple administrative process, which, if introduced, would be best practice in Australia (for a comparison with existing laws around Australia, see Identity, not Surgery).

That phrase – if introduced – is key. Unfortunately, I understand that the WA Government has already shied away from the removal of sex and/or gender from birth certificates which, if true, would obviously be incredibly disappointing.

Trans, gender diverse and intersex people deserve better than to have a progressive Law Reform Commission of Western Australia report languish, unimplemented, on the shelves. Let’s hope the WA Government remembers why it commissioned this review in the first place.

Original submission:

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

Who pays for homophobia, biphobia and transphobia?

Posted on October 11, 2018 by Alastair Lawrie

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 and now the ACT are the only Australian jurisdictions that do 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 and the ACT’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) as well as $1.083 billion for the ACT (the $811.7 million allocated by the Commonwealth, plus an extra third from the Territory government).

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 $63.83 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 $3,198 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 the ACT (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 approaches of the Tasmanian Anti-Discrimination Act and ACT 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

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

If you have enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

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

Posted on September 30, 2018 by Alastair Lawrie

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.

**********

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

**********

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.

Criminalising Ex-Gay Therapy

Posted on August 6, 2018 by Alastair Lawrie

This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here.

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.

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

Posted on July 17, 2018 by Alastair Lawrie

This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here.

In 2018, I wrote about the push to end forced trans divorce, which helped to (finally) deliver marriage equality to trans and gender diverse Australians.

However, ending forced trans divorce was 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:

Access to amended identity documentation must not depend on surgery or other medical treatments
Access to amended identity documentation must not depend on approval by doctors or other medical professionals, and
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 some 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 eight 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). He has also prepared amendments on this issue ahead of the March 2023 State Election.

There were also hopeful comments of possible movement in this area during parliamentary debate on the 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. Unfortunately, neither the Perrottet Liberal/National Government, nor Minns Labor Opposition have committed to change in this area ahead of the 2023 poll.

Victoria

In August 2019, Victoria moved from having ‘worst practice’ laws in this area, to now having the second-best laws in the country (behind Tasmania, see below). This is because of passage by the Andrews Labor Government, supported by most of the upper house cross-bench, of the Births, Deaths and Marriages Registration Amendment Act 2019 (which was the same Bill that had been rejected by the Liberal and National Parties in the Legislative Council in 2016).

This legislation achieves two-and-a-half of the three objectives identified above:

It removes the requirement for surgery
It removes the requirement for other medical approval (at least for adults – it still requires a doctor, health professional or a member of a prescribed class of persons to support an application with respect to a child), and
It is primarily based on the self-declaration of the applicant.

However, section 30A also requires that, for adults, they must submit a ‘supporting statement’ made by a person who is aged 18 years or over and who has known the applicant for at least 12 months and state that the person making the supporting statement:

believes that the applicant makes the application to alter the record of the sex of the applicant in good faith; and
supports the application.

This second requirement in particular (that another person ‘supports the application’) is unnecessary, and was not included in the best practice Tasmanian laws. In my personal view, it should be removed in the future (while other states and territories should be aware of this difference as they pursue their own reforms).

Nevertheless, the Bill enjoyed strong support from Victoria’s trans and gender diverse community, and its passage undoubtedly a huge difference to their lives.

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 (very 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 in early 2018, 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.

While there was a considerable delay from this public consultation process, the Queensland Government eventually introduced the Births, Deaths and Marriages Registration Bill 2022 late last year. It would mimic the Victorian approach to updating identity documentation, removing medical gate-keepers but inserting a requirement for a person to complete a form indicating they support the trans person’s application. This Bill looks likely to be passed in coming months.

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.

Positively, many of these best practice principles were reflected in the final report of the Law Reform Commission of Western Australia which was examining the issue of recognition of a person’s sex, change of sex or intersex status (see my submission to that inquiry, here and the final WALRC report here).

As with Queensland, there was a long delay following this public consultation process. However, at the end of 2022, the WA Government finally gave a public commitment to abolish the Gender Recognition Board, and modernise WA’s birth certificate laws. Hopefully they copy the best practice scheme from Tasmania, although at a minimum they should follow the second-best Victorian laws.

South Australia

South Australia’s Births, Deaths and Marriages Registration Act 1996 is one of the relevant laws that currently 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 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 – at least in the past two decades – led the way on LGBT law reform within Australia. And, following the passage of the Justice Related Legislation (Marriage Amendment) Act 2019, it now does so again on access to birth certificates and other identity documentation for trans and gender diverse Tasmanians.

As a result, the Births, Deaths and Marriages Registration Act 1999 now allows trans and gender diverse people, including people 16 years and over, to self-determine their own gender identity, without the need for surgery, without the need for medical approval and based solely on self declaration (there is also a process for children younger than 16 to have their gender identity recognised, with support from parents or guardians).

This legislation, which took effect on 5 September 2019, is now the standard that other jurisdictions need to adopt.

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-third 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.

The Northern Territory has also recently amendment their Births, Deaths and Marriages Registration Act to make some improvements in that jurisdiction, although it still falls short of best practice.

On the positive side, it has abolished the requirement to have surgery in order to access accurate identity documentation.

However, the new section 28B of the Act still requires trans and gender diverse people to show that they have ‘received appropriate clinical treatment in relation to the adult’s sex or gender’ (although, positively, there is no such requirement for intersex people).

Section 28C then clarifies that an application for updated identity documentation must be accompanied by ‘a statement by a medical practitioner or a psychologist certifying that the adult has received appropriate clinical treatment in relation to the adult’s sex or gender’ (similar processes apply for children).

In effect, doctors or psychologists remain gate-keepers, standing in the way of trans and gender diverse people obtaining accurate identity documentation, including birth certificates. So, will the recent changes are a step forward, there is still a long way to go for trans law reform in the Northern Territory.

[NB For a quick summary of birth certificate legislation, including relevant fees and charges and whether X marker options are available, see Liz Duck-Chong’s website.]

**********

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 Accomplished

Posted on June 11, 2018 by Alastair Lawrie

It is now 18 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, on 9 December 2018, the existing exemption under sub-section 40(5) the Sex Discrimination Act 1984 was 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 how did the states and territories respond?

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 four other jurisdictions that passed legislation within the 12 month time-frame granted 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 passed the Miscellaneous Amendment (Marriages) Act 2018 in June. 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.

Queensland, which also passed its Births, Deaths and Marriages Registration Amendment Act 2018 in June, amending the requirement in section 22 of the original Act that a person be unmarried for their sexual reassignment to be noted on the Register, and

The Northern Territory, which passed the Births, Deaths and Marriages Registration and Other Legislation Amendment Act 2018 in late November, taking effect on 6 December with only three days to spare.

Which means that, at the time of the December 2018 deadline, two out of eight Australian states and territories had failed to repeal forced trans divorce:

Western Australia, where the Gender Reassignment Amendment Bill 2018 passed the Legislative Assembly in November 2018, but was not passed by the Legislative Council before the end of 2018. Update: The Legislative Council passed the Bill on Tuesday 12 February 2019, and

Tasmania, where the Justice and Related Legislation (Marriage Amendments) Bill 2018 – which makes a range of important amendments beyond simply repealing forced trans divorce – passed the Legislative Assembly in November 2018 despite Government opposition, and awaits consideration by their Legislative Council in March this year. Update: This Bill was passed by the Legislative Council in April 2019, and took effect in May 2019.

Of course, it is disappointing that it took another 17 months for trans and gender diverse Australians to gain access to marriage on the same terms of lesbian, gay and bisexual people.

But it is still worthy of celebration that the abhorrent legal discrimination that was forced trans divorce has finally been made history.

Finally, this doesn’t mean the struggle for LGBTI equality in Australia is over – there is plenty left to do as part of the LGBTI agenda (see here).

28256

* This article was originally published in June 2018 as ‘Ending Forced Trans Divorce: Mission Half Accomplished’.

Unfairness in the Fair Work Act

Posted on May 27, 2018 by Alastair Lawrie

This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here.

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 second 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.

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.

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.

**********

Update 24 October 2018:

Earlier this year, the (then) Minister for Small and Family Business, the Workplace and Deregulation, the Hon Craig Laundy MP, replied to my letter. As you can see below, it is an extremely disappointing response.

He, and the Liberal-National Government, either don’t understand that the Fair Work Act excludes trans, gender diverse and intersex Australians (leaving them at a disadvantage compared to other groups, including lesbian, gay and bisexual people). Or they simply don’t care. I think we all know which is the likelier explanation.

This issue has taken on added importance in the context of the current debate around the Ruddock Review, and removing religious exceptions that allow discrimination against LGBT students and teachers.

That is because, even if those exceptions are repealed (from both the Sex Discrimination Act and the Fair Work Act), if the protected attributes of gender identity and sex characteristics/intersex status are not also added to the Fair Work Act, there will still be a two-tiered system for LGBTI teachers.

In short, lesbian, gay and bisexual teachers will be able to complain to both the Fair Work Ombudsman and the Australian Human Rights Commission, while trans, gender diverse and intersex teachers will only be able to complain to the latter.

Unfortunately, the otherwise positive Discrimination Free Schools Bill 2018 from the Australian Greens makes this fundamental mistake. We are also still waiting to see whether the now Morrison Government will introduce any reforms in this area at all, as well as what a Shorten Labor Opposition Bill (or amendments) might look like.

But, irrespective of whose Bill it is, and whatever other amendments it contains, if it doesn’t add gender identity and sex characteristics/intersex status to the Fair Work Act, it will be incomplete.

**********

16 July 2018

Dear Alastair

Thank you for your email of 27 May 2018 to Senator the Hon Michaelia Cash, Minister for Jobs and Innovation, about protection from discrimination against trans, gender diverse and intersex employees under the Fair Work Act 2009. As the issues raised fall within my portfolio responsibilities as Minister for Small and Family Business, the Workplace and Deregulation, your email was referred to me for reply.

The Australian Government believes that discrimination in the workplace is unacceptable and all employees have the right to be free from discrimination at work.

The Sex Discrimination Act 1984 (the Sex Discrimination Act) is the principle legislation providing protection against discrimination or harassment on the basis of sex and/or gender. It also covers discrimination and harassment in the workplace. The Sex Discrimination Act explicitly covers discrimination on the basis of gender identity and intersex status.

The Human Rights Commission Act 1986 provides remedies for workers who have been discriminated against, harassed or dismissed on the basis of gender identity or intersex status, including in the workplace. The Australian Human Rights Commission (AHRC) is responsible for responding to complaints about harassment or discrimination on the basis of gender identity or intersex status.

Any person who has been discriminated against, harassed or dismissed on the basis of gender identity or sex characteristics should contact the AHRC for information and advice. The AHRC has the power to investigate and conciliate the complaints of discrimination and breaches of human rights. Information on what is required to make a complaint is available at www.humanrights.gov.au under the complaints tab on that page. There is also a National Information Service line on 1300 656 419.

Yours sincerely

Craig Laundy

(then) Minister for Small and Family Business, the Workplace and Deregulation

Update 21 June 2020:

It has been brought to my attention that there is a possibility the Fair Work Commission would interpret ‘sex’ to include gender identity and potentially intersex status, based on this information on their website.

However, this interpretation is open to legal challenge, and may be overturned in the Federal Court. I remain of the view the only way to put workplace protection for trans, gender diverse and intersex people beyond doubt would be to add gender identity and sex characteristics to the Fair Work Act.

Will Scott Morrison’s Government continue to exclude trans, gender diverse and intersex employees from 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.

Submission re Queensland Registering Life Events Discussion Paper

Posted on April 18, 2018 by Alastair Lawrie

The following is my submission in response to the Queensland Government Registering Life Events: Recognising sex and gender diversity and same-sex families Discussion Paper. For more information on this review, go here.

BDM Act Review Team

PO Box 15188

City East, Brisbane QLD 4002

bdmlegislativereview@justice.qld.gov.au

Wednesday 18 April 2018

To the BDM Act Review Team

Submission re Registering Life Events Discussion Paper

Thank you for the opportunity to provide a submission in response to the Registering Life Events: Recognising sex and gender diversity and same-sex families Discussion Paper.

I write this submission as a long-time advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

I also write this as a cisgender gay man, and am therefore guided by the views of those groups directly affected by the provisions of the Births, Deaths and Marriages Registration Act 2003.

Specifically, with respect to questions 1 to 7 I endorse both the submission to the current review by Intersex Human Rights Australia (IHRA),[i] and the Sex and Gender Advisory Group’s letter to the Commonwealth Attorney-General’s Department Review of the Australian Government Guidelines on the Recognition of Sex and Gender.[ii]

Where there is any inconsistency between this submission and the views of these groups, I defer to them as experts in these areas.

Question 1. How should a person’s sex be recorded on the birth, adoption and death registers?

Question 2. Do you have any other comments on this issue?

I support the views expressed in Recommendation 3 of the Intersex Human Rights Australia submission that: Queensland should end legal classification of individuals by sex or gender, in line with the Darlington Statement and the Yogyakarta Principles plus 10.

I also agree with IHRA that this recommendation is unlikely to be achieved in the short-term and therefore support their recommendation 4, namely that: In the absence of an end to legal classification of individuals by sex or gender, Queensland should recognise ‘non-binary’, alternative (for example, self-affirmed) and multiple sex markers. Changes should be available [via] a simple administrative procedure, for example, via a statutory declaration.

I note that this terminology, and in particular the use of the term ‘non-binary’, was also supported by the Sex and Gender Advisory Group in its letter of 24 September 2015.

Question 3. Should any changes be considered to the BDMR Act and BDMR Regulation to improve the legal recognition of sex and gender diverse people in Queensland? If so, what should the changes be?

Question 4. Should any changes be made to the BDMR Act’s provisions regarding an application to note a reassignment of sex for children/young people under the age of 18? If so, what should the changes be?

Yes, significant changes must be made to the Births, Deaths and Marriages Registration Act 2003 to improve the legal recognition of sex and gender diverse people in Queensland. This includes the removal of the major hurdles that currently prevent people from accessing accurate and appropriate identity documentation.

First, the requirement that trans and gender diverse people must have ‘sexual reassignment surgery’[iii] before being able to update their sex on the birth register must be removed. This requirement is inappropriate as not all transgender people want or are able to undertake such procedures (for a variety or reasons, including financial).

Second, the requirement that applications to note the reassignment of a person’s sex ‘must be accompanied by statutory declarations, by 2 doctors, verifying that the person the subject of the application has undergone sexual reassignment surgery’ [section 23(4)(b)] must also be removed. The medicalisation of identity recognition processes is also inappropriate – doctors should not be ‘gatekeepers’ of the identity of trans and gender diverse people.

The process for updating sex and gender details should be based on the experience and/or identity of the individual involved – not the opinion of medical ‘experts’ – and should be straight-forward, most likely affirmed through a simple statutory declaration.

The same principles should also apply with respect to minors, with no medical gatekeepers involved, and the only caveat being that they are able to demonstrate their capacity for consent. Obviously, this also means that where a minor is able to demonstrate such capacity, they should be permitted to amend their identity documentation in the absence of approval from parent(s) or guardian(s).

Finally, I endorse Recommendation 6 of the Intersex Human Rights Australia submission that: In the absence of legislation and regulation that implements prior BDM recommendations, the Queensland government should ensure that a separate, simple and accessible pathway is available for people born with variations of sex characteristics to correct details on birth certificates.

Question 5. Should the BDMR Act contain provisions to allow for the reassignment of a person’s sex for individuals who reside in Queensland but whose birth was registered elsewhere?

Question 6. Should BDMR Act allow for the issuing of a gender recognition certificate/identity acknowledgement certificate which can be used by a person as proof of their sex or gender?

Question 7. Do you have any other comments on this issue?

Yes, I support the inclusion of provisions to allow for the reassignment of a person’s sex for individuals who reside in Queensland but whose birth was registered elsewhere. This would seem to be an important practical measure for people who are unable to update these details in other jurisdictions, for a variety of possible reasons.

I am not in a position to comment on the process for such recognition – including the specific proposal for the issuing of a gender recognition certificate/identity acknowledgement certificate – and defer to the views of trans, gender diverse and intersex organisations on this question.

Question 8. Should the BDMR Act be amended to permit same-sex parents to choose how they are recorded on a birth or adoption registration?

Yes, although this should not be limited to ‘same-sex parents’ – all parents should be able to nominate how they are recorded. This would better reflect the diversity of modern families, not just in terms of sexual orientation and gender identity, but also in terms of methods of family creation.

Question 9. If so, what descriptors should be available and in what combinations?

At the very least, parents should have the option of nominating as ‘mother’, ‘father’ or ‘parent’, thereby allowing the combinations of mother/father, mother/mother, father/father, mother/parent, father/parent and parent/parent.

I am not in a position to comment on what other terms may be preferable (especially with respect to the potential use of ‘birth mother’ or ‘birth parent’) but encourage the BDM Act Review Team to consult directly with rainbow families on these issues.

Question 10. Do you have any other comments on this issue?

I note that the Discussion Paper states that ‘[t]he issue of whether or not a child’s birth or adoption registration should include more than two parents and the issuing of integrated birth certificates listing more than two parents will be canvassed in a subsequent discussion paper.’

I take this opportunity to pre-emptively express the view that, in contemporary Australia, there is already a wide range of family structures in existence – including where children are raised by three or four different parents – and that the law should be amended to reflect this reality.

Additional Comments

I also take this opportunity to express my support for the first two recommendations of the Intersex Human Rights Australia submission to the current review, namely that:

Recommendation 1. Queensland should protect children’s right to bodily integrity, in line with the Darlington Statement and the Yogyakarta Principles plus 10

and

Recommendation 2. The Queensland government should protect people from discrimination and violence on grounds of ‘sex characteristics’, in line with the attribute defined in the Yogyakarta Principles plus 10.

These are important issues and both represent serious shortcomings in Queensland law (as well as in other jurisdictions within Australia). The Queensland Government has in recent years adopted a progressive agenda on LGBTI issues overall – I strongly encourage it to add both of these items to that list.

Thank you for considering this submission as part of this important review. Please do not hesitate to contact me at the details below should you require additional information.

Sincerely

Alastair Lawrie

The Palaszczuk Labor Government has already enacted a strong LGBTI reform agenda – but there’s plenty left to do.

Footnotes:

[i] Morgan Carpenter, 4 April 2018: https://ihra.org.au/32033/submission-bdm-queensland/

[ii] Gavi Ansara, Sue Webeck, Morgan Carpenter, Peter Hyndal and Sally Goldner, 24 September 2015, as published on the National LGBTI Health Alliance website: https://lgbtihealth.org.au/wp-content/uploads/2015/10/FOR-DISTRIBUTION-AGD-Sex-and-Gender-Guidelines-Review-Advisory-Group-Endorsement-Letter.pdf

[iii] Defined in the Act as:

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

(a) to help the person to be considered a member of the opposite sex; or

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

alastairlawrie

lgbti advocate & activist, writing about anti-discrimination and vilification law reform, equality and human rights

Category Archives: LGBTI

Genderless (Notices of Intended) Marriage

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

Who pays for homophobia, biphobia and transphobia?

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

Criminalising Ex-Gay Therapy

Identity, not Surgery

Ending Forced Trans Divorce: Mission Accomplished

Unfairness in the Fair Work Act

Submission re Queensland Registering Life Events Discussion Paper