I Stand With Trans Kids, and Against Mark Latham

Wednesday 5 August 2020 saw the introduction of the most damaging legislative attack on lesbian, gay, bisexual, transgender and intersex (LGBTI) rights in Australia this century: Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020.

Don’t let the innocuous title fool you. This Bill seeks nothing less than the total erasure of any and all trans and gender diverse content, inclusion programs and even counselling from every school in NSW, government and non-government alike. In doing so, it seeks to completely erase trans and gender diverse kids, too.

It does this by adding the following definition to the Education Act 1990 (NSW):

gender fluidity means a belief there is a difference between biological sex (including people who are, by their chromosomes, male or female but are born with disorders of sexual differentiation) and human gender and that human gender is socially constructed rather [than] being equivalent to a person’s biological sex.

This definition effectively excludes the very existence of trans and gender diverse people.

Latham’s Bill then prohibits the inclusion of anything to do with ‘gender fluidity’ from all courses approved for use in schools across NSW.

And it prohibits not just ‘the teaching of gender fluidity’ (proposed section 17A), but also any ‘instruction, counselling and advice provided to students by:

  • non-teaching school executives;
  • non-teaching school counsellors,
  • non-teaching staff, contractors, advisors and consultants of a school,
  • non-school based staff, contractors, advisors and consultants of a school, and
  • volunteers at a school’ (proposed section 17C).

Everyone – from teachers, to principals, counsellors, and parents volunteering in the classroom or the tuckshop – must adopt an official silence on anything to do with trans and gender diverse people.

The consequences for teachers breaching this silence are severe: the Bill proposes amendments to the Teacher Accreditation Act 2004 (NSW) that would cancel the accreditation of any teacher who even acknowledges that trans and gender diverse people are a thing.

As Latham stated in his Second Reading Speech:

My bill outlaws gender fluidity teaching, course development and teacher training and ends the accreditation, and thus the employment, of any individual breaking that law.

Of course, the consequences for trans and gender diverse students are far worse. They will be made to feel completely invisible, with no information about who they are, let alone reassurance who they are is okay.

There will be no trans and gender diverse content in health and physical education classes, at any age, or in any other subject, either. History, literature, indeed all of the social sciences, must be purged of any reference to trans and gender diverse characters and people. As Penny Sharpe MLC interjected during Latham’s speech, this is book-banning writ large.

Trans and gender diverse students will have nowhere to turn for assistance. School counsellors, who are supposed to help all students, will be prohibited from even talking about gender identity issues with them.

Even sympathetic teachers will feel compelled to pretend that the trans and gender diverse kids in their classrooms, sitting right in front of them, do not exist. They will be encouraged to misgender and deadname them, or jeopardise their careers. They would likely be unable to intervene to stop transphobic bullying and harassment of these kids as well.

Because to acknowledge that trans and gender diverse kids exist would be to acknowledge that sex is different to gender, and that gender exists on a spectrum.

Tragically, the purging of all trans and gender diverse content from courses, the invisibilisation of trans and gender diverse kids themselves, and the removal of all support from teachers, counsellors and others, will inevitably lead to trans and gender diverse kids killing themselves.

But then that’s possibly the point. The Education Legislation Amendment (Parental Rights) Bill 2020 appears to be built on the ideology that it is better for a child to be dead than to be happy, well-adjusted and trans or gender diverse.

Before moving on, we should also highlight the serious problems this legislation will cause for trans and gender diverse employees. It seems likely that identification as non-binary will be prohibited – teachers, and other staff, would not be able to insist on the use of they/them pronouns, or other non-gendered language. They would be forced to deny who they are.

The situation for binary trans teachers and other staff would be nothing short of horrifying. If anyone in the school community, from students to other staff and even parents, became aware of their gender identity, and decided to weaponise it against them, they would be unable to defend themselves, because again to do so would be to affirm sex is not gender. They too would be powerless to stop themselves from being deadnamed and misgendered.

The attack on trans and gender diverse people, and especially trans and gender diverse kids, in this legislation is brutal. But other parts of the LGBTI community aren’t spared either.

That’s because the Bill also establishes a new framework in the Education Act 1990 (NSW) which restricts teaching around a wide range of issues. These are framed as ‘matters of parental primacy’, and defined as:

in relation to the education of children, moral and ethical standards, political and social values, and matters of personal wellbeing and identity including gender and sexuality.

It would then allow parents and guardians to remove their child from any course that even mentions sexuality (proposed section 17D) – meaning any class, from health and physical education, through any of the social sciences, which dares to state that lesbian, gay and bisexual people exist.

It would also compel schools to consult with parents and guardians at the start of each year about any course which includes anything to do with sexuality (proposed section 17E) and then attempt to teach that course consistently with ‘the moral and ethical standards and the political and social values of parents of students’ (proposed section 6(o)).

Of course, given it is impossible to teach any course consistent with the political and social values of all parents, and the significant administrative hurdles involved, most schools will simply jettison all courses that mention anything to do with same-sex attraction. Lesbian, gay and bisexual content will be purged just like trans and gender diverse information before it.

Even where schools do decide to include this information, proposed section 17B would intervene to limit its effectiveness:

17B Teaching to be non-ideological

In government schools,[i] the education is to consist of strictly non-ideological instruction in matters of parental primacy. The words non-ideological instruction are to be taken to include general teaching about matters of parental primacy as distinct from advocating or promoting dogmatic or polemical ideology.[ii]

The impact of this clause is potentially far-reaching. After all, if some parents believe homosexuality is ‘sinful’, then presumably it would be ‘ideological’ for a school to teach being lesbian, gay or bisexual is okay. And if some parents assert all sex outside marriage is prohibited, and that LGB people must be celibate, then it could be ‘ideological’ to provide safer sex education at all, but especially about non-heterosexual intercourse.

The use of the words ‘advocating or promoting’ is especially concerning. This provision is, in effect, an Australian equivalent of the UK’s notorious section 28, which was introduced by the Thatcher Government in 1988, and persisted until 2003 when it was finally repealed.

Section 28 of the Local Government Act 1988 (UK) stated that a local authority ‘shall not intentionally promote homosexuality or publish material with the intention of promoting homosexuality’ or ‘promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.’

The word ‘promotion’ was interpreted broadly, meaning many teachers and schools simply refused to discuss anything to do with same-sex attraction, lest they be accused of ‘promoting’ it. This clause caused a generation of same-sex attracted students to be abandoned, left alone, scared and confused, and without access to safer sex education at the height of the HIV epidemic.

Mark Latham’s section 17B would have the same chilling effect as section 28 – teachers, principals, counsellors and volunteers (including parents) would fear telling a struggling lesbian, gay or bisexual student that who they are is perfectly okay, because it could be seen as promoting an ‘ideological’ view.

While on first glance the provisions of the Education Legislation Amendment (Parental Rights) Bill 2020 which apply to sexuality appear to be less harsh than the more direct attack on trans and gender diverse kids, the outcome could nevertheless be the same – silence, invisibility and lack of support, leading to dead children.

Finally, it should be noted that the provisions of this Bill are damaging to intersex kids too.

The definition of ‘gender fluidity’, reproduced above, includes this phrase: ‘including people who are, by their chromosomes, male or female but are born with disorders of sexual differentiation’, which is presumably a reference to people born with intersex variations of sex characteristics.

Except intersex variations of sex characteristics are not *disorders*, and the use of this terminology is particularly destructive, reinforcing stereotypes that these differences are wrong and something to be ‘corrected’. This term therefore increases the stigmatisation of intersex children, and will lead to further unnecessary and harmful medical and surgical interventions – an ongoing human rights abuse that must be ended, not perpetuated.

Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 is a direct assault on all parts of the LGBTI community, and especially LGBTI children. Above all, it seeks to completely erase trans and gender diverse content, inclusion programs and counselling from every school in NSW – and thereby erase trans and gender diverse kids themselves.

That’s why, in my view, it is the most damaging attack on the LGBTI community this century. Worse than John Howard’s original ban on same-sex marriage. Worse than the Morrison Government’s proposed Religious Discrimination Bill (although it also has far-reaching negative consequences for LGBTI Australians). Worse even than Latham’s own Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020.

Because it is a calculated and deliberate campaign against the most vulnerable among us.

It is a transphobic (and homophobic, and biphobic, and intersexphobic) agenda that we must resist with all our resources.

Unfortunately, we are already off to a bad start, with the NSW Legislative Council also voting on Wednesday to refer this legislation to Portfolio Committee No. 3 – Education, for inquiry. For those who are not aware, the chair of that Committee is … Mark Latham himself.

Which means we will need to appeal directly to the other members of the Committee to reject his proposal:

  • Matthew Mason-Cox (LIB, Deputy Chair)
  • Anthony D’Adam (ALP)
  • Wes Fang (NAT)
  • Scott Farlow (LIB)
  • Courtney Houssos (ALP), and
  • David Shoebridge (GRNS).

Ultimately, and perhaps somewhat ironically, the debate surrounding a Bill which explicitly mentions ‘moral and ethical standards, political and social values’ is a test of character for the Members of the NSW Parliament.

The question is one for NSW Premier Gladys Berejiklian, and Opposition Leader Jodi McKay: do you stand with trans and gender diverse kids, and LGBTI kids generally, or do you support a Bill that purges LGBTI content from classes, removes support from teachers, counsellors and others, and renders LGBTI kids themselves invisible?

Most importantly, they must make their decision quickly, and rule out supporting the Education Legislation Amendment (Parental Rights) Bill 2020, before the inevitable toxic debate, inside and outside Parliament, led by Latham and backed by his cheerleaders in the right-wing media.

I stand with trans kids, and against Mark Latham. What about you Gladys and Jodi?

For LGBTI people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/ or contact Lifeline Australia on 13 11 14.

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Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 is a worse attack on the LGBTI community than John Howard’s 2004 ban on same-sex marriage.

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Footnotes:

[i] Presumably, non-government schools will be able to be ‘ideological’ and provide instruction which condemns same-sex attraction.

[ii] Section 17B ends with: ‘For the avoidance of doubt, this section does not apply to special religious education provided under section 32 of this Act’, which leaves open the possibility that homophobic materials will be able to be distributed in special religious education in government schools.

Australian trans, gender diverse and intersex employees need better protection, too

On Tuesday morning, Australian news sites and social media feeds alike trumpeted the US Supreme Court decision to protect lesbian, gay, bisexual and transgender (LGBT) employees against discrimination.

As with too many issues of social justice, however, it seems our ability to see discrimination clearly is much better from across the vast Pacific Ocean than it is at home.

I wonder how many of those who shared that welcome news are aware the Fair Work Act here does not protect trans, gender diverse and intersex employees against adverse action and unlawful termination?

That’s because the relevant provisions of our industrial law (sections 351 and 772 of the Fair Work Act 2009 (Cth)) cover ‘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’ – but not gender identity or sex characteristics (intersex status).

The consequence of this exclusion is that trans, gender diverse and intersex employees who are subjected to abuse at work, or even dismissed, on the basis of who they are cannot make a complaint to the Fair Work Commission.

This lack of protection is particularly harmful given these are populations that already experience low rates of employment.

A recent survey by Equality Australia found that, while the proportion of LGBTIQ+ people aged 25 to 64 years who were unemployed or looking for work increased from 6% pre COVID-19 to 10.8% post COVID-19, for trans and gender diverse people specifically it rose from an already-high 10.5% to a shocking 15.2% now.

That’s almost 1-in-6 trans and gender diverse adults unemployed today, with the potential to go much, much higher in coming months.

I raised the lack of protection for trans, gender diverse and intersex employees with the Turnbull Government in 2018, with then-Minister for Small and Family Business, the Workplace and Deregulation, Craig Laundy, rejecting calls to address this legislative gap, instead pointing to general discrimination protections in the Sex Discrimination Act 1984 (Cth) (SDA).

And it’s true that gender identity and intersex status are covered in the SDA – but this ignores the fact complaints to the Australian Human Rights Commission can take much longer to conciliate, and enforcing them may require action in the Federal Court or Federal Circuit Court, at the risk of significant costs orders against the complainant.

In contrast, arbitration by the Fair Work Commission can be much quicker, and it is generally a ‘no-costs’ jurisdiction.

That’s exactly why sex, sexual orientation, marital status, family responsibilities and pregnancy are covered under *both* the SDA and Fair Work Act, allowing parties to choose an expedited, low-cost resolution if it suits their circumstances.

Women, and even lesbians, gay men and bisexuals, discriminated against in the workplace can exercise that choice. As can employees discriminated against on the basis of race, disability and age, who are all protected by their respective federal discrimination Acts, as well having access to the Fair Work Commission.

That choice is denied to some of the most vulnerable members of our community. Trans, gender diverse and intersex employees are confronted by the possibility of longer wait times, and potentially higher costs, to address the same type of dispute.

Of course, a lot has happened in the two years since Minister Laundy refused to fix this problem. The economic crisis brought on by coronavirus means that the Government, business and unions are now involved in consultations on how to reform the industrial relations regime to get people back to work.

This is an ideal opportunity for Prime Minister Morrison, and Attorney-General Porter – who is also the Minister for Industrial Relations – to help trans, gender diverse and intersex Australians into employment, and to protect them against possible mistreatment once there.

This is obviously not the only employment-related discrimination provision that needs updating (hello LGBT teachers in religious schools outside Tasmania and the ACT, LGBT employees in religious aged care homes and other service delivery organisations outside Tasmania, bisexual employees in the NSW public service, and non-binary and intersex employees in the NSW, Victorian, Queensland, WA and NT public services, too – see A Quick Guide to Australian LGBTI Anti-Discrimination Laws).

Indeed, Australia’s LGBTI anti-discrimination regime could perhaps be described as a ‘patchwork’ – except it is still missing far too many patches and for too many of us it simply doesn’t work.

But it is possibly the problem that is most easily fixed. It would only take a couple of quick legislative stitches to ensure trans, gender diverse and intersex people finally enjoy the cover of the Fair Work Act.

Take Action

As indicated above, the Morrison Government is currently engaged in consultation with business and unions about its coronavirus-related industrial relations reforms. Which means now is the perfect time to ask for the Fair Work Act 2009(Cth) to be amended to cover gender identity and sex characteristics (intersex status). Why not start with the AG himself:

The Hon Christian Porter MP

Attorney-General and Minister for Industrial Relations

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

(02) 6277 7300

Online contact

Twitter: @cporterwa

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.

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The US Supreme Court decision highlights the lack of Fair Work Act coverage of trans, gender diverse and intersex employees in Australia.

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Did You Know? Trans People in NSW and Queensland Still Require Surgery to Update Their Birth Certificates

This week marked an important milestone on the long march to trans and gender diverse equality in Australia. From 1 May 2020, trans and gender diverse people in Victoria can update their birth certificate and other identity documentation without requiring surgery.

Unfortunately, there are still two Australian jurisdictions that continue to impose this unjustified and unnecessary barrier, as well as a third where the laws also require urgent amendment.

New South Wales

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

‘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.’

The Berejiklian Liberal National Government has given no commitments to fix this appalling provision during the current parliamentary term, with the next election not due until 25 March 2023 (which would represent a dozen years of inaction on this vital reform).

If the Births, Deaths and Marriages Registration Act 1995 (NSW) is not updated before then, another event in February and March 2023 – Sydney World Pride – will ensure that the Berejiklian Government is rightly subject to significant global criticism.

Queensland

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 birth.’

The Palaszczuk Labor Government actually engaged in a public consultation process about removing this requirement, releasing the Registering Life Events: Recognising sex and gender diversity and same-sex families discussion paper more than two years ago.

Unfortunately, there does not appear to have been much movement on this issue since then, and time is quickly running out, with just five months left of sittings before Parliament is dissolved before the state election scheduled on 31 October 2020.

The clock is ticking for the Palaszczuk Government to fix the Births, Deaths and Marriages Registration Act 2003 (Qld) – trans and gender diverse Queenslanders have waited long enough for access to identity documentation that accurately reflects who they are.

Western Australia

The situation is only slightly better in the nation’s West, where section 14 the Gender Reassignment Act 2000 allows people to apply for gender recognition certificates where that person ‘has undergone a reassignment procedure’. 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.’

Fortunately, following a decision of the High Court in AB v Western Australia; AH v Western Australia [2011] HCA 42 6 October 2011, this has been interpreted such that genital surgery is not required. However, physical medical treatment, such as hormone therapy, remains a pre-requisite to access a new birth certificate in Western Australia.

These issues were examined in the Law Reform Commission of Western Australia’s 2018 Report: 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, which recommended that applications for change of gender involve a simple administrative process, including a statutory declaration, with no requirement for surgical or other medical treatment.

With less than 12 months left before the next state election, due on 13 March 2021, the pressure is on the McGowan Labor Government to implement these reforms.

South Australia, Australian Capital Territory and Northern Territory

These three jurisdictions have abolished the requirement for trans and gender diverse people to have surgery, or other physical medical interventions, in order to access updated birth certificates and identity documentation.

However, they do still require doctors or other health practitioners, such as counsellors or psychologists, to approve such applications, which remains inappropriate medicalisation of people’s gender identities, that should instead be based on self-identification.

Section 29L of South Australia’s Births, Deaths and Marriages Registration Act 1996 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…’, with section 29H clarifying that ‘clinical treatment need not involve invasive medical treatment (and may include or be constituted by counselling).’

Likewise, section 24 of the Australian Capital Territory’s Births, Deaths and Marriages Registration 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’. Clinical treatment is not further defined, meaning it does not explicitly require surgical intervention.

The Northern Territory has also adopted a similar approach, with section 28B of their Births, Deaths and Marriages Registration Act providing that trans and gender diverse people can update their birth certificates if they can show that they have ‘received appropriate clinical treatment in relation to the adult’s sex or gender’.

It is positive that each of South Australia, the ACT and NT have removed the requirement for surgery or other physical medical interventions. However, in order to reflect the self-determination of trans and gender diverse people, they should still amend their laws to remove the role of health practitioners as ‘gate-keepers’ of their identity.

Victoria

As indicated above, Victoria’s new birth certificate reforms mean trans and gender diverse Victorians can update their identity documentation without having surgery or other physical medical interventions.

Importantly, these changes, which were introduced by the Births, Deaths and Marriages Registration Amendment Act 2019 (Vic), also mean that trans and gender diverse people do not need approval from doctors or other health practitioners, such as counsellors or psychologists. Their role as ‘gate-keepers’ is over.

However, there is one requirement which fails the principle of complete ‘self-identification’. That’s because section 30A of the Victorian Births, Deaths and Marriages Registration Act 1996 requires adults to 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 their sex in good faith, and
  • supports the application.

This second requirement in particular (that another person must ‘support’ the application of a trans or gender diverse person for a new birth certificate) is unnecessary, and is the reason why Victoria’s new scheme, while a massive improvement from the previous regime, falls short of Australian best practice.

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Ideally, access to accurate identity documentation for trans and gender diverse people should not depend on whether another person ‘supports’ their application.

Tasmania

That honour belongs to Tasmania’s Births, Deaths and Marriages Registration Act 1999. Following amendments earlier last year, it allows trans and gender diverse Tasmanians (aged over 16) to self-determine their own gender identity.

Without the need for surgery or other physical medical interventions. Without the need for medical approval. And based solely on self-identification.

When NSW, Queensland and Western Australia finally bring their own birth certificate laws into the 21st century, it is the Births, Deaths and Marriages Registration Act 1999 (Tas) they should be emulating.

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This article is part of a series. Find other ‘Did You Know?’ posts here.

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

Cooperative workplaces must be trans and intersex inclusive workplaces

The Commonwealth Attorney-General’s Department has issued a consultation paper titled: ‘Cooperative Workplaces – How can Australia capture productivity improvements from more harmonious workplace relations’.

 

Submissions are due by Friday 28 February 2020. The following is mine:

 

Attorney-General’s Department

via IRconsultation@ag.gov.au

 

Monday 24 February 2020

 

To whom it may concern

 

Cooperative workplaces must be trans and intersex inclusive workplaces

 

Thank you for the opportunity to provide this submission in response to the Cooperative Workplaces consultation paper.

 

I do so as a long-term advocate on behalf of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

 

In this submission I will focus on the following questions posed in the paper:

2. To what extent do employees benefit from cooperative workplaces?

7. How does the Australian industrial relations system support and encourage cooperative workplaces?

10. What has been the experience with techniques and practices to foster cooperative workplaces including, but not limited to: …

e) Fair treatment policies and procedures.

 

From my perspective, the benefits of cooperative workplaces flow from all employees being treated fairly and with respect, and where all employees are protected against discrimination on the basis of who they are.

 

If employees are able to bring their full selves to work, without having to hide who they are or fear mistreatment and other forms of abuse, they are likely to be happier, healthier and consequently work better.

 

Unfortunately, this is not the situation for all employees in Australian workplaces today. That’s at least in part because some groups, including trans and gender diverse, and intersex, employees do not enjoy the same rights as other employees.

 

Specifically, while gender identity and intersex status are protected attributes under the Sex Discrimination Act 1984 (Cth), they are not included in equivalent protections in the Fair Work Act 2009 (Cth).

 

For example, the adverse action provisions in sub-section 351(1) cover:

  • Race
  • Colour
  • Sex
  • Sexual orientation
  • Age
  • Physical or mental disability
  • Marital status
  • Family or carer’s responsibilities
  • Pregnancy
  • Religion
  • Political opinion
  • National extraction, and
  • Social origin.

 

Note that this long list does not protect trans, gender diverse or intersex people.

 

The same list of attributes, with the same exclusions, is found in sub-section 772(1)(f), which protects employees against unlawful termination. Meaning that the Fair Work Act does not protect trans, gender diverse and intersex Australians from mistreatment or unfair dismissal based on who they are.

 

There are other exclusions too:

  • 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;
  • 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 for the Fair Work Commission to help prevent or eliminate transphobic and intersexphobic workplace discrimination.

 

This leaves trans, gender diverse and intersex employees at a distinct disadvantage compared to other groups, including lesbian, gay and bisexual employees.

 

Indeed, even a certain infamous footballer was potentially covered against unfair dismissal on the basis of religious belief, whereas one of the main groups that he directed his offensive statements against – transgender Australians – is not.

 

I wrote to the former Prime Minister, Malcolm Turnbull, and the former Minister for Jobs and Innovation, Senator Michaelia Cash, raising this issue in May 2018, calling on them to amend the Fair Work Act to include gender identity and sex characteristics (being the terminology preferred by intersex advocate organisations including Intersex Human Rights Australia) as protected attributes.

 

I received a response to that letter from the then Minister for Small and Family Business, the Workplace and Deregulation, Craig Laundy, in July of that year, rejecting this call.

 

While he stated that ‘The Australian Government believes that discrimination in the workplace is unacceptable and all employees have the right to be free from discrimination at work”, he pointed to the SDA protections as being sufficient:

 

“The Sex Discrimination Act 1984 is the principal 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.”

 

Which, to be blunt, entirely misses the point.

 

First, other groups protected by the Fair Work Act, including those based on race, sex, age, disability and even sexual orientation, are covered by both that Act and an equivalent Commonwealth anti-discrimination law. If it is good enough for them, it is good enough for trans, gender diverse and intersex Australians.

 

Second, being included in the Fair Work Act gives people who are mistreated in the workplace, or unfairly dismissed, additional options in terms of making complaints, with potential implications for timing, jurisdiction, costs and compensation. Excluding gender identity and sex characteristics from one puts trans, gender diverse and intersex employees in an inferior legal position.

 

Third, there is a symbolic effect from the exclusion of gender identity and sex characteristics from the Fair Work Act, with many employers possibly viewing anti-trans and anti-intersex workplace discrimination as being less important than other types of workplace mistreatment.

 

Perhaps that is an inevitable outcome when the Government itself, as recently as 2018, was saying the same thing – loudly and clearly – by failing to address this obvious inconsistency, even after it was brought to their attention.

 

With a new Prime Minister, Scott Morrison, a new Attorney-General and Minister for Industrial Relations – both portfolios held by Christian Porter – as well as an apparent interest in ‘cooperative workplaces’, I believe it is essential for the Government to take action on this issue as a matter of urgency.

 

Recommendation 1

The Fair Work Act 2009 (Cth) should be amended to include gender identity as a protected attribute, with a definition based on the definition in the Sex Discrimination Act 1984:

‘Gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.’

 

Recommendation 2

The Fair Work Act 2009 (Cth) should be amended to include sex characteristics as a protected attribute, with a definition settled after consultation with Intersex Human Rights Australia and other intersex individuals and organisations, and based on the definition in the Yogyakarta Principles + 10:

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

 

If these recommendations are implemented, then trans, gender diverse and intersex employees around the country stand to benefit from being able to work with less fear from workplace mistreatment and abuse.

 

In doing so, the Australian industrial relations system will better support and encourage cooperative and harmonious workplaces where people are able to bring their full selves to work (if they so wish).

 

And all workplaces will be encouraged to adopt improved fair treatment policies and procedures, that don’t exclude trans, gender diverse and intersex employees, and don’t treat prohibitions on transphobic and intersexphobic discrimination as somehow less important than prohibitions relating to other protected attributes, including sexual orientation.

 

Overall, Australia would benefit from a significant minority of happier, healthier and yes more productive employees.

 

Thank you for taking this submission into consideration. Please contact me at the details provided should you require additional information.

 

Sincerely

Alastair Lawrie

 

Cooperative workplaces

 

For more, see Unfairness in the Fair Work Act.

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What Gender Reveal Parties Actually Reveal

If the Germans hadn’t invented the term schadenfreude several centuries ago, we would have needed to create it to describe the most 21st century of phenomena: laughing at gender reveal fail videos.

These videos are (unintentionally) hilarious not just because when they go wrong, they go very wrong. With people coming up with increasingly intricate and in many cases bizarre scenarios to ‘stand out’, the potential for things to go awry has grown exponentially.

They are also deeply funny because the concept of a gender reveal party itself is inherently problematic, which means that laughing at the misfortunate of those involved is usually a guilt-free pleasure.

If you’re reading this and still think gender reveal parties are just a bit of harmless fun, perhaps it is useful to consider what exactly it is these parties are revealing – which is far more about the parent(s) than about their child(ren).

First, they reveal that some parents don’t seem to understand the difference between sex and gender.

Sex is biological (defined by the Oxford English Dictionary as ‘either of the two main categories (male and female) into which humans and many other living things are divided on the basis of their reproductive functions’).

On the other hand, gender is identity-based (with the Yogyakarta Principles defining gender identity as ‘each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including the personal sense of the body (which may involve, if freely chosen, modification of bodily appearance or function by medical, surgical or other means) and other expressions of gender, including dress, speech and mannerisms’).[i]

Given it is impossible to know a child’s gender identity before or at birth (and usually for years after that), this means these celebrations should at the very least be renamed ‘sex reveal parties’.

Second, they reveal that some parents don’t seem to understand that both sex and gender are much more complicated than just male and female.

At its very core, a gender reveal party is an attempt to place an unborn child (or children) into one of two boxes: boy or girl.

And yet, in 2019, we know that gender identity is a spectrum, and there is a wide range of other options, including non-binary.

We also know that some children will be ‘born with physical sex characteristics that don’t fit medical and social norms for female or male bodies’ (the definition of intersex from Intersex Human Rights Australia).[ii]

Gender reveal parties therefore deliberately exclude some of the beautiful diversity of the human experience.[iii]

Third, they reveal that some parents are willing participants in a reductivist view of gender.

Gender reveal parties simplify the concepts of male and female into blue and pink respectively, as though entire genders can be signified by, even summed up by, a colour. When there is obviously more diversity within genders, and more similarities across people of different genders, than such a basic dichotomy can hope to represent.

Somewhat amusingly, these colours are also the exact opposite of those from just a century ago. From US Ladies Home Journal in June 1918:

‘The generally accepted rule is pink for the boys, and blue for the girls. The reason is that pink, being a more decided and stronger color, is more suitable for the boy, while blue, which is more delicate and dainty, is prettier for the girl.’

Mush less amusingly, while the colours have changed, some of those gender stereotypes remain and gender reveal parties tend to entrench, rather than question, them.

Based on these three factors, gender reveal parties can actually be harmful. By supporting a view that gender will match sex assigned at birth, they can make life much more difficult for trans and gender diverse children.

By raising expectations that babies will be born with sex characteristics that are exclusively male or female, they can erase intersex children (and even potentially increase pressure for unnecessary surgeries post-birth to ensure their bodies match these societal ‘norms’).

And by entrenching the notion that boys and girls are inherently different, and reinforcing stereotypes about how they will (or should) behave, gender reveal parties place artificial restrictions on all of us, and our behaviours.

It may sound like I am unsympathetic to the parents who hold gender reveal parties. I’m not, at least in part because most are simply replicating the actions of those around them (and those they follow on social media), and probably haven’t considered any of the issues described above. They are acting out of ignorance rather than malice.[iv]

I’m also sympathetic because, as a society, we seem to be placing an ever-greater emphasis on gender, certainly much more than I can remember as a child growing up in the 1980s. From unnecessarily gendered toys, to unnecessarily gendered toiletries, and even unnecessarily gendered grocery items, heightened expectations of ‘gender conformity’ are all around us – so it is perhaps only natural they will be felt most keenly by expecting parents.

The challenge then is what we can do to overcome these norms, especially the emerging norm that parents will hold gender reveal parties in the first place.

I have four suggestions to start, from the easiest to the most difficult:

  1. Don’t hold a gender reveal party

If you are having a child, simply refuse to have one of these ‘celebrations’. Which is easy for someone like me to say (a cis gay man who has decided, with his partner, not to have children, at least in part because of the climate emergency), so let’s move on…

  1. Don’t attend gender reveal parties

If you are invited to one of these ‘celebrations’, don’t attend. If people all stopped going, parents would stop holding them.

  1. Let the person know why you’re not attending

This is clearly more difficult than simply not turning up, especially because many of us prefer to avoid confrontation. But if we are to do the hard yards of ending this social norm, then we should take the time to explain to the person who has sent the invitation why you won’t be there.

  1. Stop asking ‘What are you having?’

Obviously, this is another degree of difficulty again, especially because this is something we’ve been conditioned to ask, usually first, when someone says they are pregnant (and something I have been guilty of, on more than one occasion).

But what does it actually matter? And aren’t there more interesting and/or important questions to ask, like ‘What are you looking forward to?’ ‘What are you nervous about?’ ‘Are you prepared?’ and ‘Is there anything I can do to help?’

For those having difficulty making this mental adjustment, consider thinking of it this way. When you are asking ‘What are you having?’ what you’re really asking is ‘What are your child’s sex chromosomes and/or genitalia?’ and ‘What gender do you currently intend to raise your child even though you cannot know now their eventual gender identity?’

Rationally, an expecting parent who knows the difference between sex and gender could also respond to the ‘What are you having?’ inquiry by saying that they’ll get back to the questioner in five, ten, 15 or even 20 years, when the child decides for themself.

Which brings me to the primary exception to my ‘no gender reveal parties’ stance: where trans and gender diverse people announce their own gender identity. This is truly something to celebrate, especially for those who’ve overcome years or even decades of transphobia from families, schools, and society in general.

[I suppose I would also make an exception for parents who hold a gender reveal party and then release a colour like green or brown and tell attendees that they’ll let their child determine their identity for themselves.]

Other than that, gender reveal parties are a social phenomenon that has risen to prominence incredibly quickly over the past decade – and hopefully will recede just as quickly in the early 2020s.

Indeed, that’s the view of the woman whose 2008 post is widely-credited as popularising ‘gender reveal parties’, Jenna Karvunidis. From NPR in July 2019:[v]

‘Plot twist! The baby from the original gender reveal party is a girl who wears suits,’ Karvunidis says. ‘She says ‘she’ and ‘her’ and all that, but you know she really goes outside gender norms’.

… Karvunidis says her views on sex and gender have changed, especially when she’s talking to her daughter.

‘She’s telling me ‘Mom, there are many genders. Mom, there’s many different sexualities and all different types,’ and I take her lead on that,’ Karvunidis says.

She says she does have some regrets and understands these parties aren’t beneficial to everyone.

‘I know it’s been harmful to some individuals. It’s 2019, we don’t need to get our joy by giving others pain,’ she says. ‘I think there’s a new way to have these parties.’

And that idea is as simple as just eating cake.

‘Celebrate the baby,’ she says. ‘There’s no way to have a cake cut into it, to see if they’re going to like chess. Let’s just have a cake.’

Which is a great idea. And then to eat any leftovers while watching videos of gender reveal party fails because, let’s face it, some of them are funny as hell.

Untitled design (5)

An infamous 2017 gender reveal party fail, which caused a 47,000 acre fire in Arizona.

 

Footnotes:

[i] Yes, I’m aware that both the concepts of sex and gender, and the relationship between them, are far more complex. However, in the context of ‘gender reveal parties’ it’s clear these celebrations are based on biological sex (chromosomes and/or genitalia) rather than identity-based ideas of gender.

[ii] IHRA website, here.

[iii] We should note here that variations in sex characteristics is separate to non-binary gender identities, with many intersex people identifying with the ‘sex’ they were assigned at birth. Again for the Intersex Human Rights Australia website:

‘Some intersex people and some non-intersex (‘endosex’) people use nonbinary terms to describe their identities and sex classifications. Often, however, we encounter assumptions that to be intersex is to be nonbinary, or to be nonbinary is to be intersex. These assumptions are harmful. They fail to recognize the diversity of the intersex population, and in this case even the existence of intersex boys and girls, and intersex women and men.’

[iv] Of course, some parents possibly are deliberately setting expectations that their children will be either male or female, and that they will ‘act accordingly’ (including not identifying as trans or gender diverse), to which I say ‘fuck you’.

[v] Woman who popularized gender reveal parties says her views on gender have changed.

Trans out-of-pocket medical costs

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 biggest challenges facing members of the LGBTI community – albeit one that has traditionally not received significant attention – is the prohibitive cost involved for trans and gender diverse people in accessing medical treatments related to their gender identity, including (if they wish to) transition.

 

These expenses can mean the difference between being able to affirm one’s gender identity or not, and are so high that they effectively push some trans people into poverty.

 

As this March 2018 story from ABC expands:

 

‘There’s a massive price tag on being transgender in Australia. For some, the cost of surgery and treatment for gender dysphoria will crack $100,000.

 

‘The ABC… has been following one woman’s effort to find the money she needs to transition, while living below the poverty line. Stand-up comedy has been Cassie Workman’s main income for the past seven or eight years.

 

‘Normally, it’s just enough cash to scrape by, but recently she’s also been diverting as much as she can towards an estimated $85,000 in medical, administrative and incidental costs associated with her transition to a woman.’

 

The issue of trans out-of-pocket medical costs was also included in this excellent March 2019 The Conversation article on LGBTI policy priorities by Liam Elphick:

 

‘Medicare and private health insurance do not cover many treatments that transgender and gender-diverse people may require to transition, such as surgical changes, because these are deemed “cosmetic”.

 

‘As transgender advocate and lawyer Dale Sheridan tole me: “While an approximate 10% Medicare rebate is provided for genital surgery, the treatment undertaken for most transgender and gender-diverse people is far in excess of this. For example, I have spent over $15,000 on four years of electrolysis to remove my facial hair, and there is no rebate available because this is considered cosmetic. However, having a beard does not match my female appearance and has caused much dysphoria.”’

 

Perhaps the most encouraging development in this area has been the recent release of ACON’s ‘A blueprint for improving the health and wellbeing of the trans & gender diverse community in NSW’, which has given the issue of trans out-of-pocket medical costs the attention that it deserves.

 

It notes on page 20 that:

 

‘For medical services to be covered by the public health system in Australia, they must be medically necessary, clinically effective and cost effective. For many trans and gender diverse people, the ability to alter their body is part of affirming their gender and can be an important treatment if they are experiencing distress or unease from being misgendered and/or feeling incongruence between their gender identity and their body.

 

‘Research has demonstrated that access to gender-affirming care has led to reduced mental health risks and improved quality of life for trans and gender diverse people.’

 

These reasons – better mental health and quality of life outcomes – are important reasons why trans out-of-pocket medical costs must be reduced (or better-still, eliminated). But there is an even more fundamental argument: people have a human right to live their affirmed gender identity, and that right is just as important as health, education and housing.

 

ACON’s Blueprint, the development of which was driven by the trans and gender diverse community of NSW, contains six priority areas, with the first two most directly related to the issue of medical expenses:

 

Priority A: Clear and easy pathways for accessing gender-affirming care [and]

Priority B: Affordable and available gender-affirming healthcare.[i]

 

Combined, these two priorities include seven recommendations – called ‘solutions’ – to address these issues:

 

A1: Develop plain-language resources on trans and gender diverse health and human rights and establish a peer worker program to support trans and gender diverse people in navigating the health system, including when seeking gender-affirming care.

 

A2: Provide ongoing GP training, information and support so trans and gender diverse people can access gender-affirming hormone therapy through primary healthcare, using an informed consent model, and gender-affirmation treatment plans that are based on the individual needs of the patient.

 

A3: Increase the availability of specialists who are inclusive and have expertise in gender-affirming care, for those who may need specialist care in affirming their gender.

 

B2: Cover gender-affirming healthcare as medically necessary services under Medicare and the PBS.

 

B2: Provide an exemption for trans men and non-binary people assigned female at birth from the 2015 Pharmaceutical Benefits Advisory Committee (PBAC) restrictions on how testosterone is prescribed under the PBS.

 

B3: Amend the NSW Health Waiting Time and Elective Surgery Policy to remove ‘gender reassignment surgery’ as a discretionary procedure and conduct a review to ensure that all gender-affirming surgeries are included within one of the 3 clinical urgency categories.

 

B4: Remove gendered categories in health services or programs, such as Medicare billing codes, where there is no clinical need for them.

 

This document is a clear pathway forward to providing accessible and affordable healthcare to trans and gender diverse people.

 

With many of these recommendations falling within Commonwealth responsibility, that means – as with so many issues – the upcoming federal election on 18 May could make a big difference to trans out-of-pocket medical costs.

 

Indeed, this topic was covered in the recent Equality Australia, Intersex Human Rights Australia and LGBTI Health Alliance survey of the major parties, which asked:

 

Will your party ensure access to gender affirmation treatment and gender diverse people through Medicare? Will your party commit to developing a Trans and Gender Diverse Health Strategy?

 

Unfortunately, the perfunctory response from the Liberal-National Parties did not address the issue:

 

‘The Morrison Government continues to support Medicare funding at record levels and takes the advice of medical experts (the Medical Services Advisory Committee) regarding what medical treatments are listed under Medicare.’

 

The Labor Party response was somewhat better:

 

‘Many gender affirmation treatments for trans and gender diverse people are covered by Medicare. Labor will ensure that Medicare and the Pharmaceutical Benefits Scheme continue to implement anti-discriminatory policies for LGBTIQ Australians and that same sex couples and their families are not discriminated against in their access to or use of Medicare or the PBS. The health needs of trans and gender diverse Australians will be given specific consideration as part of Labor’s National LGBTIQ Health and Inclusion Strategy.’

 

Although the ALP response also linked to their National Platform, which is far more explicit on this subject [from page 144]:

 

‘Labor acknowledges the right of all Australians, including transgender and gender diverse people, to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirming medical technologies. Cost should not be a barrier to accessing these services. Labor commits to removing, wherever possible, barriers to accessing these services and consulting with experts in government. This should materialise in a focus on creating fair, equal and affordable access to medical care and treatments relevant to trans and gender diverse Australians.’

 

Indeed, the platform commitment to reducing costs, wherever possible, for trans-related medical expenses was highlighted in the Daily Telegraph’s transphobic front-page story on Thursday (‘Doctor Alarm at ALP Gender Agenda’, 25 April 2019):

 

‘Mr Shorten refused to answer questions from The Daily Telegraph about the policies, which also argue the cost of “gender affirming medical technologies” should be reduced because “cost should not be a barrier to accessing these services”.’

 

[Of course, if the Daily Telegraph were capable of actual journalism, they would realise this commitment on reducing costs has been in the ALP National Platform since 2015 – I should know, I helped write it[ii].]

 

Daily Telegraph transphobic front page

The Daily Telegraph‘s transphobic front page from 25 April 2019, which, in addition to targeting trans kids, criticised ALP policy to reduce the cost of ‘gender affirming medical technologies’.

 

The Greens’ survey response was longer, and included the following commitments:

 

‘Transgender and gender diverse people are best placed to determine their own transition pathways which may include gender-affirming medical treatments such as hormones and surgical interventions. Under the current healthcare model, gender-affirming treatments are approved at the discretion of medical professionals which can lead to transgender, gender diverse and intersex people being unfairly denied the right to access these treatments.

 

‘The Greens will provide a way to appeal these determinations by ensuring that all people can access a dedicated complaints body to review medical decisions regarding gender-affirming treatments and surgeries.

 

‘Finally, as part of the Greens plan to establish a national LGBTIQ+ health strategy, the Department would be tasked with investigating access to gender affirmation treatment for trans and gender diverse people, including whether such treatments could be funded through Medicare.’

 

On the basis of these survey responses, it is clear that, if the Morrison Liberal-National Government is re-elected, there will be little change to the current prohibitive expenses involved in trans medical treatments.

 

On the other hand, if the Labor Party is elected, combined with a strong Greens Senate presence, there is at least the possibility of progress on this issue.

 

Of course, this isn’t the only issue confronting trans and gender diverse Australians. As the ACON Blueprint notes [page 33], access to appropriate identity documentation remains the highest priority identified by community members:

 

‘The importance of having I.D.s reflecting trans and gender diverse people’s gender featured prominently in the community consultation process. Being able to change legal sex classification and name on NSW birth certificates or NSW recognised death certificates through a simple administrative procedure was the top ranked priority out of 28 options amongst all respondents to the online survey.’[iii]

 

However, while that policy change is essential, addressing it by itself would only fix part of the problem. Because, unless we simultaneously reduce the high out-of-pocket costs of trans medical treatments, we will continue to consign too many trans and gender diverse Australians to financial hardship and poverty. And that state of affairs is unacceptable.

 

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Footnotes:

[i] The other four are:

Priority C: An inclusive and knowledgeable NSW health sector

Priority D: Official government I.D.s and records that reflect trans and gender diverse people’s gender through simple administrative procedures

Priority E: Workplaces, education settings and other environments that are inclusive and respectful of the needs of trans and gender diverse people [and]

Priority F: A vibrant, resourced trans and gender diverse community advocating for its own needs and priorities.

[ii] The original 2015 commitment, which I wrote, read:

‘Labor acknowledges the right of all Australians, including transgender and gender diverse people, to live their gender identity. For many, this includes accessing specialist health services and for some people can involve gender affirmation surgery. Cost should not be a barrier to accessing these services and/or surgery, and Labor commits to removing, wherever possible, out-of-pocket health expenses for transgender people incurred in relation to their gender identity.’

[iii] This is an issue I have previously written about, including here: Identity, not Surgery.

Genderless (Notices of Intended) Marriage

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:

 

  1. 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:

  1. 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

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

 

Identity, not Surgery

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

 

Last year, 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:

 

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

 

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

 

NSW

 

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

 

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

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

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

 

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

 

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

 

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

 

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

 

Victoria

 

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 passed earlier this year. 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 will undoubtedly make 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 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.

 

Hopefully they follow through on their commitments in this area, although it is concerning that there doesn’t appear to be any action more than 18 months later. If the Palaszczuk Government doesn’t act, it’s up to the community to put pressure on them to do so, especially before the next election due in October 2020.

 

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). It will be interesting to see whether the WA Government implements its recommendations.

 

South Australia

 

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

 

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

 

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

 

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

 

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

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

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

 

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

 

So, even though South Australia has 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.

 

NT

 

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.

 

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Ending Forced Trans Divorce: Mission Accomplished

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).

 

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