Ten Months of Transphobia

The ‘star candidate’ of the first week of the election campaign – for all the wrong reasons – has undoubtedly been the Liberal candidate for Warringah, Katherine Deves.

Hand-picked by Prime Minister Scott Morrison, the head of anti-trans lobby group Save Women’s Sport Australasia has left a long trail of public comments for the media to scrutinise. And, well, the results aren’t pretty.

Already this week, they have reported on posts:

  • Describing trans kids as ‘surgically mutilated and sterilised’, while sharing topless images of a trans teenager who had undergone top surgery.
  • Saying she is ‘triggered’ by the rainbow pride flag (‘I get triggered by it. Whenever I see it on social media I think ‘What now? What are they demanding now?’ And I grew up with gay relatives and siblings and hung out in Surry Hills and X in Sydney in the 1990s. Lots of LGB family and friends, their movement has been destroyed.’)
  • Likening her lobbying against the participation of trans women and girls in sport to standing up against the Holocaust.[i]
  • Alleging ‘half of all males with trans identities are sex offenders’ (her tweet: ‘Half of all males with trans identities are sex offenders, compared with less than 20% for the rest of the male estate. That should tell you something.’), and
  • Belittling the serious mental health harms caused by transphobia (‘We hear from the other side the toll, all the harm, the devastation, we’re all going to commit suicide and blah blah’).

When confronted by the media about the above, Deves has been forced to apologise. It seems inevitable there will be more transphobic comments found, and more apologies, in coming days.

For people who only pay attention to federal politics every three years, Deves’ comments must seem bizarre, and extreme. And they are obviously both.

But, one thing they are *not* is an outlier.

Unfortunately, the Liberal candidate for Warringah’s views must be seen in the context of a rising tide of transphobia in Australian political discourse over the past six or seven years.

This includes the moral panic against the Safe Schools program in 2015 and early 2016, after which then-Prime Minister Malcolm Turnbull first reviewed it, then ‘gutted’ its contents, before finally de-funding it completely.

And the same-sex marriage postal survey in the second half of 2017, which became a platform for groups opposing marriage equality to target trans and nonbinary children (indeed, one of the leading organisations against equality, the Marriage Alliance, has since become anti-trans lobby group Binary Australia).

Following his elevation to the Prime Ministership, Scott Morrison himself has engaged in the anti-trans culture wars on a number of occasions (tweeting against teacher support for trans kids – describing them as ‘gender whisperers’ – in September 2018; criticising a trans-inclusive Cricket Australia participation policy in April 2019; and personally intervening to remove gender identity-inclusive toilet door signs in the Department of Prime Minister and Cabinet in August 2019).

However, from my perspective I would argue that the Coalition’s political campaign against trans and gender diverse Australians has really escalated in the past ten months.

In fact, I would pin-point that escalation to ten months ago yesterday (15 June 2021), when the Senate considered a motion from extremist One Nation Senator Malcolm Roberts on the subject of ‘childhood gender dysphoria’, which effectively called for gender-affirming health care to be denied to trans and nonbinary children and young people.

Not only was Roberts’ motion not based on either the evidence of experts in the field, or the lived experience of trans people themselves, but if adopted as public policy would directly lead to serious health and mental health harms for gender diverse kids.[ii]

Despite this, the Morrison Liberal/National Government granted its Senators a conscience vote, and they supported this attack on trans health care by a margin of 21 to 6.

Coalition Senators voting to deprive trans kids of evidence-based support included Attorney-General Michaelia Cash, and Assistant Minister to the Attorney-General Amanda Stoker.

The only Coalition Senators who voted to support trans kids were Simon Birmingham, Andrew Bragg, Richard Colbeck, Jane Hume, Marise Payne and Dean Smith (thank you).

Thankfully, the motion was defeated overall (because Labor, the Greens and Jacquie Lambie opposed it), but from my perspective it marked a turning point in debate, with attacks by the Government only becoming more frequent in the months since.

For example, less than three months later in September last year the Government voted against straight-forward amendments to the Fair Work Act 2009 (Cth), which simply would have ensured trans, nonbinary and intersex workers had exactly the same access to the Fair Work Commission as other employees.

There was absolutely no justification for their opposition. Not only because gender identity and intersex status were already included in the Sex Discrimination Act 1984 (Cth), but also because the then-Tony Abbott-led Liberal/National Opposition had actually supported the inclusion of those protected attributes back in 2013.

The Government’s position on trans (and intersex) rights had effectively gone backwards in the eight years since. It was, as I wrote at the time, both a pathetic position to take, and antipathetic to the rights of some of the most vulnerable members of the community. 

Then of course there was the Religious Discrimination Bill, introduced to Parliament less than three months later again, in November of last year.

As I have written previously, this was damaging and divisive legislation that (among other things): 

  • Overrode existing state and territory anti-discrimination laws to allow demeaning and derogatory comments against women, LGBT people, people with disability and even people of minority faiths, provided they were religiously-motivated
  • Overrode existing state and territory anti-discrimination laws that protect LGBT teachers in religious schools against discrimination (especially in Tasmania, the ACT and Queensland, and soon to commence laws in Victoria), and
  • Introduced religious exceptions which may have allowed discrimination against LGBT students in religious schools ‘under the guise of religious views’.

From this list it is clear trans people were one of many groups who stood to lose out under this legislation (so it wasn’t *only* a transphobic Bill).

But it is also undisputed that trans people were squarely in the sights of religious fundamentalists as they contemplated how they might (ab)use their new special privileges to discriminate had the laws passed (including Citipointe Christian College’s enrolment contract which primarily targeted trans kids, and Senate evidence of the Presbyterian Church of Victoria demanding the ability to misgender trans people in the workplace).

The Government then sought to mistreat trans people again when the Religious Discrimination Bill was considered by Parliament in February 2022, with Prime Minister Morrison introducing amendments that only protected lesbian, gay and bisexual students in religious schools against discrimination (and even then only against expulsion).

Trans and nonbinary students were excluded from any and all protection, breaking Scott Morrison’s own promise from October 2018 without any justification whatsoever.

Even worse, after the Religious Discrimination Bill package was amended by the Opposition, cross-bench and five moderate Liberal MPs to protect trans and nonbinary kids, Morrison then chose not to have the Bill considered by the Senate at all (at least partially at the behest of the Australian Christian Lobby and Christian Schools Australia).

That is how much the Liberal/National Government opposes the rights of trans and nonbinary children: they were prepared to abandon another of their core promises entirely just because gender diverse students might have been protected as a by-product.

Then, on the very same day the Religious Discrimination Bill was placed on pause (to the relief of many, myself included), Tasmanian Liberal Senator Claire Chandler introduced a private members Bill to amend the Sex Discrimination Act in order to exclude trans women and girls from participating in women’s sport (a law which also would have had a significant detrimental impact on intersex women).

Within two weeks, the ‘Save Women’s Sports’ Bill had been personally endorsed by Prime Minister Morrison himself, while campaigning in Tasmania. Even though it is still not ‘official’ Government policy, this endorsement dramatically increases the risk this law will be passed should the Coalition win in May.

Finally, in the dying days of the Parliamentary term in early April, Liberal Senator Alex Antic misused Senate Estimates hearings by asking a range of witnesses how they would define ‘woman’, which is simply re-heated transphobic culture war nonsense copied directly from the Republican Party handbook in the United States.

A few things become clear when looking back on the events of the past ten months in this systematic way.

First, the Liberal/National Government’s war on the rights of trans Australians is relentless.

Second, their attacks only seem to be becoming more frequent.

Third, far from being an outlier, a candidate like Katherine Deves is likely to feel right at home inside the Coalition.

Indeed, her advocacy efforts, aiming to exclude trans women and girls from participating in women’s sport, seems to be the main reason why she was chosen in the first place.

On the first full day of the campaign (Monday 11 April) Morrison told 2GB radio that:

‘She’s [Deves is] standing up for things that she believes in, and I share her views on those topics. And, and I think it’s important that they’re raised and it’s got nothing to do with, you know, the broad agenda debates. This is just about, you know, common sense and what’s right. And I think Katherine’s right on the money there.’

Before telling another radio station later that day, during a discussion of trans inclusion in (or exclusion from) sport: ‘I welcome Katherine’s selection, pleased to play a role in that. I think she’s raised very important issues. I think Claire Chandler’s also been outspoken and brave on these issues. I share their views’ (emphasis added).

Katherine Deves was not chosen as a candidate in spite of her transphobic views. Deves was hand-picked as a candidate, by Scott Morrison, as a direct result of her anti-trans advocacy.

In fact, it seems to have been her primary ‘contribution’ to public life. The only other time I have come across her previously was listening to her as a witness at hearings into Mark Latham’s anti-trans kids Bill, in April 2021.

Perhaps unsurprisingly, Deves (wearing her Save Women’s Sport Australasia hat) supported Latham’s Bill to erase trans students from classrooms and schoolyards across NSW – legislation which was so extreme that the NSW Perrottet *Liberal/National* Government ultimately rejected it because it ‘may lead to targeted discrimination against a marginalised community which already experiences poorer mental health and wellbeing outcomes’.

I started this post by highlighting some of the more appalling social media posts and other public comments for which Deves has been forced to apologise this week. But, rather than the (admittedly extreme) ways in which she expresses her position, it is the substance of those views – seeking to exclude trans women and girls from sport, supporting laws to erase trans kids and nonbinary students from classrooms – for which she should apologise.

But we already know that she won’t, because campaigning against trans rights is what Katherine Deves is known for.

I will now end this post by making three final points.

First, none of the above is news to trans and gender diverse Australians, who have been enduring this culture war for the past six or seven years, and are all-too-aware of its escalation over the past ten months. We already know it is having a devastating impact on their mental health and wellbeing, and will continue to do so for as long as it is allowed to go on.

Second, none of this will stop until the rest of us stand up and make it stop. Trans and gender diverse Australians have been fighting this battle on their own for far too long. It’s time for cis allies, including within the LGBTIQ community, but also in the Labor Opposition, Greens, moderate Liberals, and everyday members of the community, to tell the Morrison Liberal/National Coalition that enough is enough.

Trans women are women.

Trans men are men.

Trans rights are human rights.

And trans kids will be protected with all of our collective might.

Third, perhaps the most frustrating part of all is that spending significant time fighting back against attacks on trans rights means there’s less time to advocate for much-needed positive changes to improve the lives of trans Australians, because the project of trans equality is far from complete.

This obviously includes amending the Fair Work Act to explicitly protect trans and nonbinary (and intersex) workers.

And amending the Sex Discrimination Act to remove the ability of religious schools to lawfully discriminate against LGBT students, and teachers and other staff members.

It also includes removing the high out-of-pocket costs for gender-affirming health care which places transition financially out of reach for too many trans Australians (and leaves others under severe financial stress).

And plenty more besides.

These are the things we need to happen. Not another ten months of unrelenting attacks on the trans community. And not the election of candidates like Katherine Deves, or other people with views like hers.

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.

NB This post is written in a personal capacity, and does not reflect the views of employers past or present.

Katherine Deves

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Footnotes:


[i]  Full quote: ‘I’ve always loved 20th-century history and I think many people would say to themselves, ‘I’d never been to villages that stayed quiet, while the trains went past or whatever, I would have been part of the French Resistance, the underground, you know, I would be one of those people.’ And when all of this was happening, and no one was speaking out, I thought, this is it. This is the moment in my life, when I’m going to have to stand up and say something against the status quo and against the establishment and say, ‘I don’t think this is right’.’

[ii] Full text:

‘That the Senate-

(a) notes that:

(i) in 100 years of diagnostic history of childhood gender dysphoria (GD) there is an alarming trend that teenage girls, with no history of GD, have become the largest group seeking treatment,

(ii) in the United States of America, girsl requesting gender reassignment surgery in 2016-17 rose 400%,

(iii) in the United Kingdom, girls presenting with GD in the last 10 years rose 4000%, and

(iv) Australia’s Royal Children’s Hospital indicates referrals have grown from 1 every two years to 104 patients in 2014;

(b) further notes that:

(i) Sweden’s leading gender clinic has ended treatment of minors with hormonal drugs due to safety concerns, citing cancer and infertility, and

(ii) suicide mortality rate for transgendered people is 20 times higher than comparable peers;

(c) supports children presenting with GD to be given:

(i) the ‘wait and see’ method as the first choice, since evidence shows between 70-90% of young people’s dysphoria resolves itself by puberty, and

(ii) a comprehensive therapeutic pathway, since a large percentage of these children have pre-existing mental health issues, and not a medical pathway; and

(d) condemns the practice of children receiving:

(i) experimental and unproven medical treatments of irreversible puberty blockers and sex hormone treatments, and

(ii) irreversible transgender surgery.’

This is the easiest LGBTIQ election promise a political party could make. But the Morrison Government still probably won’t commit to it.

Problem: Transgender and intersex workers are not explicitly protected under the Fair Work Act 2009 (Cth).

While discrimination on the basis of sexual orientation, gender identity and intersex status are all prohibited under the Sex Discrimination Act 1984 (Cth), only sexual orientation is included as a relevant attribute in the Fair Work Act for the purposes of protections against ‘adverse action’ (section 351(1)), and ‘unlawful termination’ (section 772(1)(f)), as well as in sections covering the contents of awards (section 153) and enterprise agreements (section 195), and the functions of the Fair Work Commission (section 578(c)).

This means that while the ability of lesbian, gay and bisexual workers to bring complaints to the Fair Work Commission (FWC) is certain, there is significant doubt about whether trans, nonbinary and intersex employees can do the same.

In practice, a trans worker who is mistreated in the workplace because of their gender identity, or an intersex employee who is fired on the basis of their sex characteristics, may be unable to have their issue resolved quickly and at low cost via the FWC, and instead be forced to go through a much less timely, and potentially more expensive, complaint to the Australian Human Rights Commission (and then in federal court after that).

This is a completely unjustified discrepancy in the rights of LG and B Australians on one hand, and transgender and intersex people on the other, and it must be resolved.

Solution: Amend the Fair Work Act to explicitly protect transgender and intersex workers.

Simple, right? Well, it certainly should be.

Sadly, however, the Liberal/National Government has proven itself to be completely uninterested in doing anything to address this most straightforward of problems.

I have been raising the lack of explicit protections for trans, nonbinary and intersex workers in the Fair Work Act since Malcolm Turnbull was Prime Minister. And on multiple occasions since then, to multiple Attorneys-General.

Not only have they refused to take action, but last September current Attorney-General Michaelia Cash, and the Morrison Government generally, voted *against* amendments to the Fair Work Act which would have, at a minimum, brought it into line with Sex Discrimination Act (SDA).

What makes that vote even more disappointing is the then Opposition, under Tony Abbott, had actually voted in favour of protecting transgender and intersex people in the SDA back in 2013 – meaning the Liberal/National Coalition has gone *backwards* in its support for these groups in the subsequent eight years.

In any event, with the election expected to be called today (and at the latest by Monday 18 April), it is clear the lack of explicit protections for trans, nonbinary and intersex workers in the Fair Work Act will not be addressed this term.

In which case, I think we should ensure that finally addressing this problem is made an election issue for the upcoming poll (on May 14 or 21).

What policy commitments do we want?

From my perspective, any election commitment on this issue should comprise four, inter-related parts.

First, a commitment to ensure the Fair Work Act explicitly covers trans, nonbinary and intersex workers.

Second, a commitment to use best practice terminology to do so.

This includes adding a protected attribute of ‘gender identity’, using the definition in section 4 of the Sex Discrimination Act (‘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’) as a starting point, and finalised in consultation with trans community organisations.

However, while the SDA currently uses the protected attribute ‘intersex status’ (defined in section 4 as ‘the status of having physical, hormonal or genetic features that are (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male’) this is no longer supported by the intersex community, at least in part because it has been interpreted by some as relating to identity rather than biology.

Instead, the best practice terminology is now ‘sex characteristics’, as called for in the historic March 2017 Darlington Statement, and most recently defined in the Equal Opportunity Act 2010 (Vic) as:

‘a person’s physical features relating to sex, including-

(a) genitalia and other sexual and reproductive parts of the person’s anatomy; and

(b) the person’s chromosomes, genes, hormones, and secondary physical features that emerge as a result of puberty.’

The definition of sex characteristics should also be finalised in consultation with intersex community organisations, particularly Intersex Human Rights Australia.

Third, if the attribute of ‘sex characteristics’ is added to the Fair Work Act, the Parliament should use the same opportunity to update the Sex Discrimination Act, replacing the protected attribute of intersex status with sex characteristics.

Fourth, a commitment to make these reforms within the first 12 months of the next Parliamentary term.

This discrepancy has existed since the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, in June of that year.

Which means by mid-2023 it would have been a full decade of trans, nonbinary and intersex workers having less clear, and potentially lesser, workplace rights than lesbian, gay and bisexual employees.

That is far too long for workers to wait for what are basic protections, making a request that it be fixed in the next year entirely reasonable.

In this context, today I sent the below emails to the Government, Opposition and Greens.

The email to the Government highlights their rejection of amendments to the Fair Work Act in September last year, and asks them to take concrete action to protect trans, nonbinary and intersex workers as a matter of urgency.

The email to the Opposition welcomes their vote to support adding ‘intersex status’ to the Fair Work Act last September, while calling on them to go further, and commit to instead add the protected attribute of ‘sex characteristics’ if they form Government.

Finally, the email to the Greens thanks them for their leadership on this issue to date (it was their amendments that were voted on last year) and urges them to continue to prioritise this reform in the upcoming term of Parliament.

*****

Senator the Hon Michaelia Cash

Attorney-General

Via email: senator.cash@aph.gov.au

10 April 2022

Dear Senator Cash

Please commit to protecting trans, nonbinary and intersex workers in the Fair Work Act 2009 (Cth)

All workers should be protected against adverse action, and unlawful termination, on the basis of who they are.

These protections must include transgender and intersex employees.

As you are aware, these groups are not explicitly covered by relevant provisions of the Fair Work Act 2009 (Cth), unlike other protected attributes like race, sex, age, disability, religious belief and even sexual orientation.

In this context, it was extremely disappointing that you, and other Government Senators, voted to reject straight-forward amendments to address this discrepancy in September 2021, thus leaving the position of trans, nonbinary and intersex workers unclear.

In light of the upcoming federal election, I call on you, and the Liberal/National Coalition, to unequivocally commit to fixing this problem as a matter of priority next term.

Not only would this be the right thing to do in principle, it would also be consistent with the actions of the then Abbott Opposition in 2013 (of which you were a member), to support the prohibition of discrimination on the basis of gender identity and intersex status in the Sex Discrimination Act 1984 (Cth).

A commitment in four, inter-related parts

From my perspective, this commitment should include the following four, closely-linked, elements:

First, a commitment to protect transgender and intersex workers on exactly the same basis as other groups.

Second, a commitment to add the protected attributes of ‘gender identity’ (based on the definition in the Sex Discrimination Act, and finalised in consultation with transgender community groups) and ‘sex characteristics’ (which is now best practice rather than intersex status, based on the recently-added definition in the Equal Opportunity Act 2010 (Vic), and finalised in consultation with Intersex Human Rights Australia) to the Fair Work Act.

Third, a commitment to use the same legislation to replace the protected attribute of intersex status in the Sex Discrimination Act with the best practice terminology sex characteristics.

Fourth, a commitment to complete the above steps within the first 12 months of the next Parliamentary term, especially given trans, nonbinary and intersex workers have been waiting for these protections since mid-2013.

I look forward to receiving your response to this correspondence, and sincerely hope you are able to provide clear promises on these issues on behalf of the Morrison Liberal/National Government.

Please note that, as your commitments (or lack of commitments) on the above will be in the public interest, I will publish the contents of any response I receive on my personal website: www.alastairlawrie.net

Sincerely,

Alastair Lawrie

*****

The Hon Mark Dreyfus QC MP

Shadow Attorney-General

Via online contact form 

10 April 2022

Dear Mr Dreyfus

Please commit to protecting trans, nonbinary and intersex workers in the Fair Work Act 2009 (Cth)

All workers should be protected against adverse action, and unlawful termination, on the basis of who they are.

These protections must include transgender and intersex employees.

As you are aware, these groups are not explicitly covered by relevant provisions of the Fair Work Act 2009 (Cth), unlike other protected attributes like race, sex, age, disability, religious belief and even sexual orientation.

In this context, the ALP’s support for amendments in September 2021 to add gender identity and intersex status as protected attributes in the Fair Work Act was obviously welcome, although it was disappointing this did not extend to supporting the best practice terminology of sex characteristics.

In light of the upcoming federal election, I call on you, and the Australian Labor Party, to commit to protecting trans, nonbinary and intersex workers as a matter of priority next term.

Not only would this be the right thing to do in principle, it would also be consistent with, and build on, one of the major achievements of the most recent Labor Government, the passage of the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (during your term as Attorney-General).

A commitment in four, inter-related parts

From my perspective, this commitment should include the following four, closely-linked, elements:

First, a commitment to protect transgender and intersex workers on exactly the same basis as other groups.

Second, a commitment to add the protected attributes of ‘gender identity’ (based on the definition in the Sex Discrimination Act, and finalised in consultation with transgender community groups) and ‘sex characteristics’ (which is now best practice rather than intersex status, based on the recently-added definition in the Equal Opportunity Act 2010 (Vic), and finalised in consultation with Intersex Human Rights Australia) to the Fair Work Act.

Third, a commitment to use the same legislation to replace the protected attribute of intersex status in the Sex Discrimination Act with the best practice terminology sex characteristics.

Fourth, a commitment to complete the above steps within the first 12 months of the next Parliamentary term, especially given trans, nonbinary and intersex workers have been waiting for these protections since mid-2013.

I look forward to receiving your response to this correspondence, and sincerely hope you are able to provide clear promises on these issues on behalf of the Albanese Labor Opposition.

Please note that, as your commitments (or lack of commitments) on the above will be in the public interest, I will publish the contents of any response I receive on my personal website: www.alastairlawrie.net

Sincerely,

Alastair Lawrie

*****

Senator Janet Rice

Australian Greens

Via email: senator.rice@aph.gov.au

10 April 2022

Dear Senator Rice

Lack of explicit protections for trans, nonbinary and intersex workers under the Fair Work Act 2009 (Cth)

Thank you for your ongoing leadership on this issue in the Commonwealth Parliament.

This includes regularly raising the lack of explicit protections for transgender and intersex employees in the Fair Work Act 2009 (Cth) during Senate Estimates hearings.

Most importantly, thank you for introducing amendments to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 in September last year which, at best, would have added gender identity and sex characteristics as protected attributes to the Fair Work Act or, at a minimum, would have included gender identity and intersex status instead.

As you know, I shared your disappointment when neither set of amendments was successful.

However, I also share your passion to ensure this work is finally completed.

For your information, and in light of the upcoming federal election, this morning I have written to both the Attorney-General and Shadow Attorney-General calling on the Government and Opposition respectively to promise the following:

First, a commitment to protect transgender and intersex workers on exactly the same basis as other groups.

Second, a commitment to add the protected attributes of ‘gender identity’ (based on the definition in the Sex Discrimination Act, and finalised in consultation with transgender community groups) and ‘sex characteristics’ (which is now best practice rather than intersex status, based on the recently-added definition in the Equal Opportunity Act 2010 (Vic), and finalised in consultation with Intersex Human Rights Australia) to the Fair Work Act.

Third, a commitment to use the same legislation to replace the protected attribute of intersex status in the Sex Discrimination Act with the best practice terminology sex characteristics.

Fourth, a commitment to complete the above steps within the first 12 months of the next Parliamentary term, especially given trans, nonbinary and intersex workers have been waiting for these protections since mid-2013.

Ideally, both major parties will commit to protecting the rights of trans, nonbinary and intersex workers, and this reform will be passed quickly and on a bipartisan basis.

However, in the event that neither of the major parties is willing to make these promises, or that they do but do not follow through on them with appropriate and timely action, I urge you to continue fighting on this issue.

In particular, if no amendments are forthcoming by mid-2023, I call on you to reintroduce your amendments to the Fair Work Act either as part of a relevant legislative package, or via a private members Bill.

I look forward to receiving your response to this correspondence.

As with my emails to the Government and Opposition, please note that, as your response on the above will be in the public interest, I will publish the contents of any correspondence I receive on my personal website: www.alastairlawrie.net

Sincerely,

Alastair Lawrie

*****

Update, Sunday 8 May 2022:

On Friday (6 May) I received the following response from Greens Senator, and LGBTIQA+ spokesperson, Janet Rice:

Dear Alistair Lawrie

Thank you for your correspondence of 10 April 2022, in relation to improvements to antidiscrimination legislation, in order to protect members of LGBTIQA+ communities.
I would like to thank you for your tireless and important advocacy on such important issues, and in particular the legal expertise you have brought to issues which have such crucial importance for people’s lives.

Let me re-affirm the Greens’ commitment to fighting for LGBTIQA+ rights, as set out in our policy.

We will continue to advocate for the necessary changes to the Fair Work Act 2009 to ensure that workers who are trans or have intersex variations are protected on the same basis as other groups. That should include appropriate definitions in relation to gender identity and sex characteristics, developed in consultation with relevant communities. Those changes should also be accompanied by relevant updates to the Sex Discrimination Act 1984 as needed.

As you are aware, the Greens have a significant opportunity in this Parliament to achieve balance of power, potentially in both the House of Representatives and the Senate. We will continue to advocate as forcefully as we are able to, for these changes and others to protect the rights of LGBTIQA+ people.

Yours sincerely

Senator Janet Rice
Australian Greens LGBTIQA+ spokesperson

This is obviously encouraging, including commitments to advocate for the introduction of gender identity and sex characteristics as protected attributes in the Fair Work Act, with definitions to be developed in consultation with trans and intersex communities.

Disappointingly, I am yet to receive any response from either Senator Cash on behalf of the Government, or Mark Dreyfus on behalf of the Australian Labor Party.

Today I have written again to both, asking for any response to be provided by Sunday 15 May, so that they can be published prior to the election. I will obviously update this post if and when any such response is received.

*****

Update Wednesday 18 May:

Well, the update is really that there is nothing to update.

Unfortunately, despite writing again to both the Attorney-General Michaelia Cash and her Shadow Mark Dreyfus, I have received no response from either the Morrison Liberal/National Coalition, or the Albanese Labor Party. Which is perhaps not surprising in the case of the former (given they voted against protecting trans, gender diverse and intersex workers in the Fair Work Act in September last year), but is more disappointing in the case of the latter given they actually supported including gender identity and intersex status as protected attributes at a minimum (although need to go one step further by supporting the best practice terminology of sex characteristics).

I will of course update the post further if any response is received between now (COB Wednesday) and the opening of polls on Saturday morning.

NB This post is written in a personal capacity, and does not reflect the views of employers past or present.

Commonwealth Attorney-General Michaelia Cash and Shadow Attorney-General Mark Dreyfus

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

Not Going Backwards is Not the Same Thing as Going Forwards

Almost two weeks after the Sydney Gay & Lesbian Mardi Gras, the NSW LGBTIQ community has been given a belated reason to celebrate.

Yesterday (Wednesday 16 March), the NSW Government finally released its response to Mark Latham’s anti-trans kids Bill (formally called the Education Legislation Amendment (Parental Rights) Bill 2020), in which they categorically rejected his proposed legislation.

This was a law that, if passed, would have erased trans and gender diverse students from classrooms and schoolyards across the State.

It also would have introduced a Thatcher-esque section 28-style prohibition on positive references to LGBTQ people generally (modelled after a UK law from the 1980s and 90s which harmed a generation of queer kids there).

As well as enacting a new offensive and stigmatising definition of intersex people in NSW legislation.

Importantly, the Perrottet Liberal/National Government also rejected key recommendations of the Parliamentary Inquiry into Latham’s Bill (which, in a disturbing conflict of interest, featured Latham himself as Chair). This included ruling out:

  • Banning trans students from using the bathroom reflecting their gender identity
  • Outing trans students to non-supportive parents, even where this puts the student in danger
  • Stopping trans students from seeking confidential help from school counsellors, and
  • Outing trans students to all of the parents of other students in their year group.

The Government’s decision to reject Latham’s anti-trans kids Bill, and key recommendations of his biased inquiry, is obviously incredibly welcome.

Above all, it is a huge relief to LGBTIQ students, and especially trans and gender diverse kids and their families, who no longer need fear his legislative attack on their right to a safe and inclusive education.

However, this does not mean we should be overly-congratulatory towards the NSW Government either.

For example, in their response the Government notes, as one of their reasons for rejecting the Bill, that it ‘may lead to targeted discrimination against a marginalised community which already experiences poorer mental health and wellbeing outcomes’ (ie trans and nonbinary children and young people).

Which is true. But it was also true on the day Latham first introduced his legislation way back in August 2020.

There was no need for a drawn-out Parliamentary Inquiry to tell them that.

There was definitely no need to refer it to Latham’s Committee for that Inquiry.

There was no justification for all three Government members of that Inquiry to support the main elements of Latham’s Bill, including backing harmful recommendations about outing trans kids, and preventing them from accessing bathrooms, or seeking help from counsellors.

And there was clearly no justification for the Parliamentary Secretary for Education, Kevin Conolly, to express his personal support for the Bill (noting that he remains in that portfolio today).

The NSW Government could, and should, have spared the trans community from being forced to endure yet another debate about their very existence, by rejecting the Bill from the outset rather than taking 19 months and giving One Nation a platform to spread their transphobia in the meantime.

So, while the response yesterday was the right outcome, the tortuous route it took them to arrive there means they deserve, at best, a polite clap rather than a standing ovation.

The second reason why we should not be giving thunderous applause to the NSW Government is that all they have done is stop the situation in NSW from getting worse.

LGBTIQ people in NSW still woke up this morning in the worst jurisdiction for their legal rights in the country. Just as they did yesterday, and as they will tomorrow.

This includes having the worst anti-discrimination laws, which fail to protect bisexual people (the only place in Australia not to do so), nonbinary people, and intersex people. And which have extraordinary exceptions, allowing all private schools and colleges, religious and non-religious alike, to discriminate against LGBTQ students and teachers.

NSW will likely also soon be the only state or territory which requires trans and gender diverse people to have genital surgery in order to update their birth certificate (assuming Queensland follows through on its promises to reform their own laws this year).

NSW has made no progress on, or given any firm commitments to, prohibiting sexual orientation and gender identity conversion practices (which have already been banned in Victoria and the ACT, partially banned in Queensland, with bans under active consideration elsewhere).

And NSW has also shown no signs it will end what I consider to be the worst human rights abuses against any part of the LGBTIQ community: coercive surgeries and other non-consensual medical interventions on children born with innate variations in sex characteristics (with the ACT and Victorian Governments already committed to reform in this area, and realistic hope for change in at least one other jurisdiction).

All the NSW Government did yesterday was rule out taking another step backwards.

But even standing still means that, with each and every passing year, NSW falls further and further behind on LGBTIQ law reform.

Next week (Friday 25 March) will mark exactly one year to go until the next State election.

That’s a full 12 months for the Perrottet Liberal/National Government to do more than just publicly reject a terrible law attacking some of the most vulnerable members of our community, and instead to make long-overdue progress on at least some, if not all, of the above-mentioned law reforms to make the lives of LGBTIQ people in NSW better.

If they do, they will have actually earned some real praise.

Finally, lest I be accused of being partisan, we cannot let the Minns Labor Opposition off the hook on this subject either.

Because they too have failed to publicly condemn Mark Latham’s anti-trans kids Bill over the past 19 months.

They too voted for it to be referred to a Parliamentary Inquiry chaired by Latham himself.

And, disappointingly, they also had one of their two members on that Inquiry support the main elements of Latham’s Bill, including backing harmful recommendations about outing trans kids, and preventing them from accessing bathrooms, or seeking help from counsellors.

That’s simply not good enough. Nor is the fact that, one year out from what looks to be a highly competitive election, we currently know next-to-nothing about Labor’s plans on the issues described earlier.

It’s time for them to demonstrate to the LGBTIQ community exactly what they would do to end NSW’s reign as the jurisdiction with the worst laws in Australia.

In summary, then, while I am happy and relieved for LGBTIQ students, and trans and gender diverse kids in particular, that Latham’s anti-trans kids Bill has finally been rejected, I am far from satisfied with the current state of law reform in NSW. We can and must demand better, from both the Perrottet Liberal/National Government, and Minns Labor Opposition.

NSW Premier Dominic Perrottet

Letter to Dominic Perrottet re Mark Latham’s anti-trans kids Bill

The Hon Dominic Perrottet

Premier of NSW

Submitted online

20 February 2022

Dear Premier Perrottet

Please reject the Education Legislation Amendment (Parental Rights) 2020

I am writing to urge you to reject the One Nation Education Legislation Amendment (Parental Rights) Bill 2020 – otherwise known as Mark Latham’s anti-trans kids Bill.

All students in NSW deserve the opportunity learn and grow in a safe and welcoming school environment. That must include lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) students.

The Education Legislation Amendment (Parental Rights) Bill 2020 fails this fundamental principle. It fails LGBTIQ students generally, and trans and nonbinary students in particular, by making them feel invisible, and denying them the same support as other students.

This includes erasing trans and nonbinary students in classrooms and schoolyards across the state via the ban on any discussion of ‘gender fluidity’, which would prevent teachers, principals and counsellors from even acknowledging that trans and gender diverse people exist, and leave students who are already vulnerable feeling even more isolated and alone.

It includes a broader ban on positive references to diversity in sexual orientation and gender identity. This provision – modelled on the notorious ‘section 28’ which harmed a generation of LGBTQ students in the UK in the 1980s and 1990s – would have a chilling effect on all school staff, and would even stop school counsellors from being able to reassure a student struggling with their sexual orientation, by telling them who they are is perfectly normal.

And it includes the insertion of a new offensive and stigmatising definition of people born with intersex variations of sex characteristics in NSW law.

Unfortunately, this is legislation that would harm LGBTIQ children and young people rather than help them. It must be rejected.

I also call on you to reject the recommendations of the Parliamentary Inquiry into the Education Legislation Amendment Bill, through your Government’s response which is due by 7 March 2022.

That Inquiry was flawed from the very beginning, with One Nation Leader Mark Latham chairing the examination of his own legislation.

Nor did it hear from the communities who would be most at risk under the Bill: only one witness out of more than 40 who gave evidence was transgender, and none were current trans or nonbinary students.

Unsurprisingly, given this bias, the Committee’s recommendations would make the problems caused by the Bill worse, rather than better, including Recommendation 8 that would (among other things):

  • Ban trans students from using the bathroom that reflects their gender identity
  • Out trans students to non-supportive parents, even where this puts them in danger
  • Stop trans students from seeking confidential help from school counsellors, and
  • Out trans students to all of the parents of students in their year group.

These recommendations would only compound the harms caused by what was a deeply damaging and divisive Bill to begin with.

The Bill, and Inquiry recommendations, are in direct conflict with the message of unity which you emphasised when you first became Premier on 5 October 2021. You said:

‘Being Premier is a great honour, but I want to be clear that the job I have committed to today is not just to lead NSW, but to serve all the people of our state’ (emphasis added).[i]

Abandoning LGBTIQ children and young people, and especially trans and nonbinary students, would clearly not be serving all the people of NSW.

In those same comments that day, you also said:

‘The true strength of NSW is its people, our working mums and dads, business owners, frontline workers, teachers, workers, doctors, paramedics, firefighters, police, tradies’ (emphasis added).

If you genuinely support teachers, then you will oppose legislation that would place them in the most impossible of circumstances: having to choose between supporting the LGBTIQ students in their classes, or keeping their job.

This is because the Education Legislation Amendment (Parental Rights) Bill 2020 would lead to teachers who acknowledge trans and gender diverse people exist, or make positive references to diversity in sexual orientation and gender identity, having their registration cancelled and therefore being fired.

Any human would choose to support the real-life person in front of them, and to meet their real-life needs, rather than implement discriminatory legislation that is not motivated by the best interests of those students.

As a human, and as Premier, you have the opportunity to reject this legislation, and to remove the threat to teachers for simply doing what teachers do: teach the child in front of them, including making sure they have an inclusive environment in which to learn and grow.

I therefore reiterate my call to you to publicly, and unequivocally, reject the One Nation Education Legislation Amendment (Parental Rights) Bill 2020, and the recommendations of Mark Latham’s Committee which inquired into his own legislation.

In doing so, you would be living up to your words on the day you became Premier, and the message of unity you delivered to the state.

Above all, you would be sending a clear message to LGBTIQ children and young people generally, and to trans and nonbinary students in particular, that who they are is valued, and that they have a place in NSW.

Thank you in advance for considering this correspondence. Please do not hesitate to contact me at the details provided should you require additional information.

Sincerely

Alastair Lawrie

Footnotes:


[i] ‘Dominic Perrottet’s first full speech as leader’, Sydney Morning Herald, 5 October 2021, available here.

For more information on this subject, see: If you thought the Religious Discrimination Bill was bad, wait til you hear about Mark Latham’s anti-trans kids Bill.

If you have enjoyed reading this post, you can sign up to receive updates about this and other issues from this blog, via the right-hand scroll bar on desktop, or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

If you thought the Religious Discrimination Bill was bad, wait til you hear about Mark Latham’s anti-trans kids Bill

Last week, we had some rare good news: the Commonwealth Government’s Religious Discrimination Bill stalled in the Senate, and now seems unlikely to pass before the upcoming federal election.

That Bill would have legally protected religiously-motivated anti-LGBT speech in all areas of public life, and potentially overridden state and territory protections for LGBT teachers and other workers in religious schools in Victoria, Queensland, Tasmania and the ACT (among many other problems – for more detail, see: Why the Religious Discrimination Bill must be rejected (In 1,000 words or less)). 

The fact it has been stopped (at least for now), is obviously a welcome relief.

Unfortunately, that relief is short-lived, especially for LGBTIQ people in NSW, because the NSW Government’s response to the Parliamentary Inquiry into Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 – otherwise known as his anti-trans kids Bill – is expected at any point in the next three weeks, and must be delivered by March 7 (the Monday after Mardi Gras).

This legislation is actually worse than the Religious Discrimination Bill, in particular because it so specifically targets the most vulnerable members of our community. For those who aren’t familiar with it, allow me to explain its main features.

What’s in Mark Latham’s anti-trans kids Bill?

The primary purpose of Latham’s legislation is to erase trans and gender diverse children from classrooms and schoolyards across NSW. It does this by inserting the following definition into 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.

It then prohibits not just ‘the teaching of gender fluidity’ (proposed section 17A), but also any ‘instruction, counselling and advice provided by’ teachers, support staff, counsellors, principals, contractors, consultants and even volunteers at any school in the state, public or private (proposed section 17C).

The punishment for teachers who breach this prohibition is immediate de-registration (ie being fired).

In effect, the Bill would impose an official silence on anything to do with transgender people – even the fact that they exist. This includes everything from exclusion from the health and physical education syllabus, through to banning school counsellors from discussing gender identity with struggling students who are at risk of self-harm or suicide.

Trans and gender diverse kids would be made to feel invisible, with nowhere to turn to for help.

The Bill then *also* includes provisions to harm LGBTQ kids more generally. It does this by inserting a definition of matters of parental primacy:

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.

Before introducing a range of provisions to limit the teaching of anything to do with these issues. Chief among them is proposed section 17B:

Teaching to be non-ideological

In government schools, the education is to consist of strictly non-ideological instructions 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.

The impact of this provision is incredibly far-reaching. After all, if some parents believe homosexuality is sinful, then presumably it would be ideological for a school to teach that simply being lesbian, gay or bisexual is okay. As with the ban on the teaching of gender fluidity, this ban also applies in relation to school counsellors (who could not reassure a child struggling with their sexual orientation that who they are is normal).

The use of the phrase ‘advocating or promoting’ reveals this is simply Margaret Thatcher’s infamous section 28 – which harmed a generation of LGBT kids in the UK in the 1980s and 1990s – recycled on the other side of the world for the 2020s.

The outcome would be the same here – teachers and other workers too afraid to mention anything to do with sexual orientation or gender identity at the risk of de-registration, inflicting silence on LGBTQ kids where there should be support.

Finally, Latham’s Bill attacks the ‘I’ part of the LGBTIQ community by including an offensive and stigmatising reference to intersex in NSW law (as part of the definition of gender fluidity – ‘people who are, by their chromosomes, male or female but are born with disorders of sexual differentiation). The use of disorders here is exactly the type of harmful language which encourages the imposition of coercive surgeries and other unnecessary medical treatments on children born with variations of sex characteristics.

For more detail on the Bill, see I Stand With Trans Kids, and Against Mark Latham.

But it’s from Mark Latham. Why can’t we just ignore it?

For those (blissfully) unaware of Mark Latham’s current political status, the failed former federal leader of the Australian Labor Party is now the NSW leader of Pauline Hanson’s One Nation Party. In a normal political environment, fringe extremist legislation from a fringe extremist party could sometimes be ignored.

Sadly, the NSW Legislative Council removed this option when, in its infinite (lack of) wisdom, it decided to refer the Education Legislation Amendment (Parental Rights) Bill 2020 to the Education Portfolio Committee for inquiry – the same Committee chaired by… Mark Latham.

Given this, the inquiry process into Latham’s unbalanced and transphobic Bill was, well, unbalanced and transphobic.

In the two days of hearings last April, 42 witnesses were invited to give evidence. Only one (Teddy Cook, from ACON) was trans or gender diverse. None were trans or gender diverse students, the people whose right to a safe learning environment would be stripped away by passage of this law.

There were multiple instances of disrespectful treatment towards submitters who opposed the Bill (from Latham himself), while he encouraged other witnesses to give evidence about subject matter which was not included in the legislation (such as witnesses who focused on the exclusion of trans girls from bathrooms, and sporting activities).

Unsurprisingly, the entire committee process became a platform for some of the worst examples of transphobia we have seen in any Australian parliament in recent history, perhaps best summed up by this statement from Mark Sneddon of the Institute of Civil Society:

‘What we are trying to do – or what I understand the bill is trying to do – is to reduce the social contagion influence putting more people onto the conveyor belt of gender transition.’

Which, at the very least, is being honest: through this Bill, Latham is attempting to stop trans and nonbinary kids from being trans and nonbinary. Presumably because he thinks being those things is a negative in and of itself.

While the rest of us understand that:

  • Trans and nonbinary people are part of the natural spectrum of human gender identity
  • Trans and nonbinary kids are awesome, and
  • There are really two conveyor belts – one which lets trans and nonbinary kids be themselves and delivers them to health and happiness, and one which tells trans and nonbinary kids that they are wrong and should not exist, and causes them serious harm.

For more on the Inquiry process, see: Surprise!* Mark Latham’s Inquiry is just as unbalanced and transphobic as his Bill.

What did the Inquiry recommend?

Completely unsurprisingly, given the Committee’s lack of impartiality, the Final Report released in September 2021 endorsed core parts of Latham’s anti-trans kids Bill.

This includes Recommendation 2, which supported the section 28-style approach to denying information to lesbian, gay, bisexual and trans students:

That, in recognition of its obligations under the International Covenant on Civil and Political Rights, the NSW Government supports all parental primacy provisions and protections in the Education Legislation Amendment (Parental Rights Bill) 2020 including:

  • the statutory recognition of parental primacy in definition, object and principle within the Education Act 1990 and related statutes;
  • the requirement for teaching to be non-ideological;
  • the enhanced consultation requirements with parents; and
  • the right for parents to withdraw their children from teaching that is inconsistent with their core values and convictions.

And while there was a brief glimmer of hope when I first read Recommendation 7 (‘That the Legislative Council amend the Education Legislation Amendment (Parental Rights) Bill 2020 to remove the proposed legislative provisions concerning gender fluidity’), this was immediately undone by Recommendation 8, which starts:

‘That the NSW Government update Bulletin 55: Transgender Students in Schools based on the following principles:

  1. The Safe Schools program and Gayby Baby movie are prohibited in NSW Government schools. Gender fluidity is not part of the NSW school curriculum and therefore, should not be taught or promoted, either in classrooms, teacher professional development, by external consultants, special school activities or through the distribution of material to teachers or students. This prohibition also applies to the teaching of gender as a ‘social construct’.’

In practice, the Committee still endorsed the erasure of trans and gender diverse kids from classrooms and schoolyards, they simply thought it could best be achieved via Bulletin, not Bill.

But there are other parts of Recommendation 8 which are *far* worse, and would not be out of place in regressive and repressive, redneck Republican USA. This includes (but is definitely not limited to):

  • A ban on trans students using the bathroom that reflects their gender identity (Recommendation 8.9: ‘Other than in circumstances of a full medical gender transition,[i] students born biologically male shall not be allowed in female toilets, change rooms, dormitories and excursion accommodation; and vice versa for students born biologically female. Third options shall be made available for these students, such as administrative block toilets and change rooms’)
  • Outing trans students to non-supportive parents, even where this puts the student in danger (Recommendation 8.4: ‘No school or school staff can withhold information from parents about the gender or gender transition of a student at the school, other than by court order or acting with the advice of a government child protection agency’ and Recommendation 8.5: ‘No student has the right or capacity to stop the school telling their parents information about their gender, where the school is obliged to do so’)
  • Stopping trans students from seeking confidential help from school counsellors (Recommendation 8.11: ‘For students aged under 18 years, school counsellors should not involve themselves in questions of gender fluidity and transition without prior reference to parents and any medical professionals advising the student and parents on this matter. Parents have the right to know if gender fluidity and transition are being discussed at a school. School counsellors must liaise with parents and relevant medical professionals as much as possible’), and
  • Outing trans students to all of the parents of students in their year group (Recommendation 8.12: ‘If a student has changed their gender, their parents shall be consulted about the best way of communicating this to the school community. Parents of other children in the same year group should be notified of the change, allowing them to talk to their children in advance’).

The full Committee report, and other harmful parts of Recommendation 8, can be read here.

In short, the adoption of Recommendation 8 in full would cause significant harm for thousands of trans and nonbinary children and young people in NSW.

Which makes it disturbing to realise that not only was this recommendation (and all of the others, including implementing section 28) made by Committee Chair Mark Latham, they were endorsed by all three Coalition members of the Committee, as well as one of the two Labor Opposition members.

Only Labor MLC Anthony D’Adam and Greens MLC David Shoebridge stood up for trans and gender diverse kids against this harmful and hateful Bill.

So, what happens next?

What happens next comes down to the NSW Government, and in particular to new(ish) Premier Dominic Perrottet.

As I indicated in the introduction, they must respond to the Final Report of Mark Latham’s Committee’s Inquiry into Mark Latham’s anti-trans kids Bill by 7 March 2022 at the latest.

The simplest approach would be for Perrottet to reject both the Committee Report, and the Education Legislation Amendment (Parental Rights) Bill 2020, outright, and to instead stand up for the rights of all students – including all lesbian, gay, bisexual, trans and nonbinary, intersex and queer students – to a safe learning environment.

But that outcome is by no means guaranteed. There are obviously some members within the Government who support Latham’s agenda attacking trans and gender diverse kids (starting with the three MLCs on his Committee).

Indeed, the Liberal Party Parliamentary Secretary for Education, Kevin Conolly, expressed his personal support for the Latham anti-trans kids Bill in his response to my letter to NSW MPs this time last year, asking them to reject the Bill (my original letter is here: NSW MPs can be champions for trans and gender diverse kids. Or bullies while I published Conolly’s response here: NSW Liberal Parliamentary Secretary for Education Supports Bill to Erase Trans Kids).

It is therefore entirely possible that Premier Perrottet, and the NSW Government, endorse some parts, or even all, of Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 before Monday March 7.

We could also see them introduce their own legislation on this subject, similar to and possibly inspired by the Latham Bill, in the following weeks or months.

If that happens, then it will take a collective effort just as strong, and just as broad-based, as the campaign against the Religious Discrimination Bill to ensure it is defeated.

We will need to fight like lives depend on it. Because they will. The lives of some of the most vulnerable members of our community: trans and nonbinary kids.

*****

For LGBTIQ+ people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/ (between 3pm and midnight, every day)

Or contact Lifeline Australia on 13 11 14.

All eyes will be on Education Minister Sarah Mitchell (front), and Premier Dominic Perrottet (back), in coming weeks as they announce the NSW Government’s response to Mark Latham’s Committee’s Inquiry into Mark Latham’s anti-trans kids Bill.

If you have enjoyed reading this post, you can sign up to receive updates about this and other issues from this blog, via the right-hand scroll bar on desktop, or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus

Footnotes:


[i] Noting that, for the vast majority of trans and gender diverse young people, they do not access what is referred to here as ‘full medical gender transition’ until they are 18.

LGBTIQ Law Reform Priorities for 2022

The next 12 months will be important in the history of LGBTIQ law reform in Australia.

There is the genuine possibility of long-overdue progress finally being made on key LGBTIQ human rights issues, at least in some jurisdictions.

At the same time, there is a real risk rights will be stripped away from our community, under Commonwealth law, in NSW and potentially elsewhere.

This post discusses five LGBTIQ law reform issues which, in my view, must be high priorities in 2022.

Please note before we start that a) they are *not* listed in order of priority and b) this list is by no means exhaustive – there is still a long way to go on the road to genuine legal and substantive equality for lesbian, gay, bisexual, transgender, intersex and queer Australians.

  1. Stopping the Commonwealth Religious Discrimination Bill

The Morrison Government introduced the Religious Discrimination Bill 2021 into Commonwealth Parliament at the end of last year, and will attempt to pass it before the federal election in May.

It must be stopped before it inflicts significant harm on women, LGBT people, people with disability and people of minority faiths, among many other members of the Australian community.

The Bill takes away existing protections under all Commonwealth, state and territory anti-discrimination laws, including the best practice Tasmanian Anti-Discrimination Act 1998, in order to allow offensive, humiliating, insulting and ridiculing comments, as long as they are motivated by religious belief.

This will obviously include legal protection for a wide range of demeaning and derogatory speech that is homophobic, biphobic and transphobic.

The Bill also introduces ‘religious exceptions’ that are far broader than any other Commonwealth, state and territory anti-discrimination law, both in the excessive scope of the organisations covered, and by adopting a test to determine whether these organisations are allowed to discriminate that is much, much more lenient than any other law.

The people at most risk are Muslim, Jewish, Buddhist, Hindu, agnostic and atheist employees of publicly-funded religious schools, hospitals, aged care facilities, housing and disability service providers.

However, these extraordinary exceptions will also be used to discriminate against LGBT students and teachers in religious schools. This discrimination will be done ‘under the guise of religious views’ – on the basis of a student’s or teacher’s religious beliefs about sexual orientation and gender identity, rather than on those attributes directly – but the outcome is still the same: LGBT kids and workers being legally discriminated against.

To find out more about the serious threat posed by the Religious Discrimination Bill, and some simple actions you can take to help stop it, check out: Why the Religious Discrimination Bill must be rejected (in 1000 words or less).

2. Ending coercive surgeries on intersex children

In my view, the worst human rights violations currently occurring against any part of the Australian LGBTIQ community are coercive surgeries and other non-consensual medical interventions on children born with variations in sex characteristics.

There is no justification for the ongoing contravention of the right to bodily integrity for intersex children.

Nor is there any excuse for the fact that, as at February 2022, no Australian Government has legislated to ban these human rights abuses. Especially when ending these practices was first recommended by a bi-partisan Senate Committee way back in October 2013.

Thankfully, 2022 might be the year progress is finally achieved, with the ACT Government committing to introduce legislation in the first half of the year. The Victorian Government has also promised to end these practices, although it is unclear whether they will take action before the state election in November 2022 (and would be incredibly disappointing if they didn’t).

There have been reports in other jurisdictions, including a 2020 Tasmanian Law Reform Institute Inquiry report, and a 2021 report from the Australian Human Rights Commission. But, really, the time for reports is over. It’s time for all states and territories, as well as the Commonwealth Government, to take concrete steps to end these human rights violations.

To stay up to date, follow Intersex Human Rights Australia on twitter and facebook and check out their website where you can donate if you have the capacity.

3. Removing barriers to identity documents for trans and gender diverse people

In 2022, there are still two Australian jurisdictions that require transgender people to have genital surgery in order to access birth certificates and other identity documents which reflect their gender identity: New South Wales and Queensland.

One other jurisdiction, Western Australia, requires transgender people to have physical medical treatments before updating their identity documents.

This situation is simply not good enough.

Trans and gender diverse people must be allowed to update their birth certificates on the basis of self-identification alone, without the need for surgery or other physical medical treatments, and without the need for doctors or other medical gate-keepers like counsellors or psychologists to ‘approve’ their identity.

And obviously all jurisdictions must provide recognition for gender identities beyond the binaries of male and female.

In good news, the Queensland Government has promised to take action on this issue early this year. While the Western Australian Government is sitting on a 2018 WA Law Reform Commission report which recommended sweeping changes to their laws.

Meanwhile in NSW? Nothing. No signs of progress. At all. Which will be incredibly embarrassing in February and March 2023, as Sydney plays host to World Pride, with what will likely be the worst birth certificate laws in the country.

For more on this subject, see: Did you know? Trans people in NSW and Queensland still require surgery to update their birth certificates.

4. Stopping Mark Latham’s anti-trans kids Bill

NSW is also the site of one of the worst attacks on LGBTI rights in Australia this century: Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020.

This legislation would effectively erase trans and gender diverse children from classrooms and schoolyards across the state. Teachers and principals would be liable to be dismissed simply for acknowledging the existence of trans and gender diverse people, while the kids themselves would be left completely on their own, exposed to bullying, and without the life-saving support of school counsellors.

Other LGBT students would also suffer, with the Bill including a provision based on the infamous section 28 from Thatcher-era Britain, which harmed a generation of LGBT kids before being abandoned two decades ago. And there’s an offensive and stigmatising definition of intersex in the Bill, too.

A Committee chaired by Mark Latham himself recommended core parts of the Bill be implemented as policy in NSW (with other recommendations going even further, such as banning trans girls from using bathrooms matching their gender identity). Disappointingly, all three Coalition MPs, and one of the two Labor MPs, on that Committee, supported these recommendations.

The NSW Government, and new(ish) Premier Dominic Perrottet, must respond to this Committee report by 7 March (ie the Monday after Mardi Gras). There is a very real risk NSW will introduce changes this year that would not look out of place in Republican-heartland USA. This disgusting transphobic attack on vulnerable kids must be resisted.

For more on this subject, see: I Stand with Trans Kids, and Against Mark Latham.

5. Fixing Australia’s broken LGBTI anti-discrimination laws

Rather than simply defending our existing anti-discrimination laws from attack (see the Religious Discrimination Bill, above), we need to also take urgent action to address many of the serious short-comings of Australia’s current LGBTI anti-discrimination framework.

Indeed, both the Commonwealth Sex Discrimination Act 1984, and the laws of most – although not all* – states and territories should be significantly improved. This includes:

Commonwealth

The Sex Discrimination Act 1984 (Cth), should be amended to:

  • Replace the protected attribute of ‘intersex status’ with ‘sex characteristics’
  • Remove religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT students, teachers and other staff at religious schools
  • Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics, and
  • Create a Discrimination Commissioner with responsibility for sexual orientation, gender identity and sex characteristics.

The Fair Work Act 2009 (Cth) must also be amended to explicitly cover gender identity and sex characteristics – currently, it only mentions sexual orientation, meaning protections for trans, gender diverse and intersex employees are not guaranteed.

New South Wales

The Anti-Discrimination Act 1977 (NSW) is the worst LGBTI anti-discrimination law in Australia, and needs significant modernisation, including:

  • Protect bisexual people against discrimination by replacing the protected attribute of ‘homosexuality’ with ‘sexual orientation’ (NSW is the only jurisdiction in Australia that currently does not protect bisexuals)
  • Protect non-binary people against discrimination by replaced the protected attribute of ‘transgender’ with ‘gender identity’
  • Protect intersex people against discrimination by introducing a protected attribute of sex characteristics
  • Remove specific exceptions which allow all private schools, colleges and universities (religious and non-religious alike) to discriminate against LGBT students and staff
  • Remove specific exceptions which allow discrimination by religious adoption agencies
  • Remove the general religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, and
  • Ensure prohibitions on vilification apply to all of sexual orientation, gender identity and sex characteristics.

Victoria

Recent amendments to the Equal Opportunity Act 2010 (Vic), which have yet to take effect, mean many problems there have already been addressed (although the Commonwealth Religious Discrimination Bill could strip away hard-won protections from LGBT teachers and other staff in religious schools, before they even commence).

However, the major outstanding item of business is the introduction of prohibitions on anti-LGBTI vilification (something which has already been considered by a Parliamentary Committee, and the Government has committed to do, but is awaiting implementation).

Queensland

The Anti-Discrimination Act 1991 (Qld) could be improved in several key areas, including:

  • Introduce a protected attribute of sex characteristics, for both discrimination and anti-vilification
  • Update the definition of ‘gender identity’ to ensure non-binary people are protected against discrimination
  • Amend the religious exceptions applying to LGBT teachers and other staff in religious schools, to remove the ‘Don’t Ask, Don’t Tell’ approach and replace it with stronger protection (noting that LGBT students are already protected)
  • Remove the general religious exceptions which allow other religious organisations to discriminate against LGBT workers), and
  • Remove the specific exception which allows discrimination against transgender employees where the job involves working with children (s28(1), which is particularly abhorrent).

Fortunately, the Queensland Human Rights Commission is currently undertaking a review of discrimination protections under the Act, while a Parliamentary Committee has recently recommended updating its anti-vilification protections.

Western Australia

The Equal Opportunity Act 1984 (WA) is probably second only to NSW in terms of worst LGBTI anti-discrimination legislation in Australia. It desperately needs amendments, including:

  • Protect intersex people against discrimination by adding a protected attribute of sex characteristics
  • Replace the current extremely-limited transgender protections (which only cover people who have had their gender identity recognised by the Government, and which is therefore restricted to people who have had genital surgery) with the much broader protected attribute of ‘gender identity’
  • Remove religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT students, teachers and other staff at religious schools, and
  • Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.

The Western Australian Law Reform Commission is currently undertaking a review of the Equal Opportunity Act.

South Australia

The Equal Opportunity Act 1984 (SA) could be improved in a number of ways, such as:

  • Replace the protected attribute of ‘intersex status’ with ‘sex characteristics’, while amending its religious exceptions to ensure they do not permit discrimination on this attribute
  • Clarify that the religious exceptions are not intended to allow discrimination against LGBT students in religious schools
  • Remove other religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT teachers and other staff at religious schools, and
  • Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.

Australian Capital Territory

The Discrimination Act 1991 (ACT) is the second best LGBTI anti-discrimination law in Australia. There is one major reform outstanding – removing the ability of religious organisations, other than schools, to discriminate against LGBT workers and peoples accessing their services (noting that LGBT students, teachers and other staff in religious schools are already protected against discrimination).

Thankfully, the issue of religious exceptions is currently under review by the ACT Government.

Northern Territory

Unlike the ACT, the Anti-Discrimination Act (NT) has fallen well behind best practice, and requires significant updating to:

  • Replace the current definition of ‘sexuality’ (which erroneously includes ‘transsexuality’) with a protected attribute of ‘sexual orientation’
  • Protect trans and gender diverse people against discrimination by adding a protected attribute of ‘gender identity’
  • Protect intersex people against discrimination by adding a protected attribute of ‘sex characteristics’
  • Remove religious exceptions which allow religious organisations to discriminate against LGBT workers and people accessing services, including LGBT teachers and other staff at religious schools (noting that LGBT students are already protected), and
  • Prohibit vilification on the basis of sexual orientation, gender identity and sex characteristics.

*Observant readers would note the Tasmanian Anti-Discrimination Act 1998 is not included in this list, because it is already close to best practice on these key points (protected attributes, religious exceptions and anti-vilification prohibition).

For more on this subject, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

Conclusion

In my opinion, these five LGBTIQ law reform issues should be high priorities in 2022. However, as well as being placed in no particular order, I would also reiterate this list is by no means exhaustive either.

Other important LGBTIQ law reform priorities include ensuring that states and territories other than Victoria and the ACT prohibit sexual orientation and gender identity conversion practices (including making sure the partial ban in Queensland is extended beyond health care settings).

Nor is law reform the only necessary pre-condition for substantive equality for LGBTIQ people, which must also be achieved through a variety of other measures, not least of which is funding (such as providing no-cost access via Medicare for gender identity-related health care, including full coverage of transition expenses).

Anyway, as with previous years, our agenda is big but our ambition, and determination, are bigger. Let’s get to work to make a better future for LGBTIQ Australians.

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[NB This article is written in a personal capacity and does not represent the views of employers, past or present.]

No Cause for Celebration

Sydney World Pride is now just 17 months away. With the official Opening Ceremony scheduled for 24 February 2023, it promises to be one of the largest LGBTI celebrations in a post-pandemic world.

Unfortunately, when it comes to LGBTI law reform, there is very little reason to celebrate.

The NSW Anti-Discrimination Act is the worst LGBTI anti-discrimination law in the country. It’s the only one that fails to protect bisexuals, and the only one allowing all private schools, religious and non-religious alike, to discriminate against LGBT students. The ADA also excludes nonbinary people, and people with innate variations of sex characteristics.

With Queensland promising to amend their birth certificate laws, NSW will soon be the only jurisdiction in Australia requiring trans people to undergo genital surgery (which many don’t want, and some who do can’t afford) to update their identity documents.

While Queensland, the ACT and Victoria have already prohibited gay and trans conversion practices (to varying extents), and other states consider this vital reform, there’s no clear commitment for NSW to do the same.

Nor has the NSW Government promised to prohibit what are the worst of all human rights abuses against the LGBTI community: coercive surgeries and other involuntary medical treatments on intersex children.

In this context, it’s depressing to realise the next step on LGBTI rights here is likely to be a great leap backwards.

Earlier this month, a NSW Parliamentary Committee recommended adoption of the core elements of Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020, more accurately known as his anti-trans kids Bill.

That includes support for a domestic version of the UK’s infamous ‘section 28’, which traumatised a generation of LGBT students there before being abandoned in 2003.

By threatening teachers with having their accreditation revoked for mentioning anything ‘political or ideological’ in relation to gender or sexuality – which could be as simple as telling struggling gay kids that who they are is perfectly okay – it will drive most teachers to say nothing at all, creating the perfect conditions for ignorance and shame to thrive.

Even worse are the proposed changes to Bulletin 55: Transgender Students in Schools, which would (among other things):

  • Prohibit students from confidentially coming out as transgender to their teachers or school counsellors
  • Effectively ban transgender students from being able to access toilets or changerooms matching their gender identity, and
  • Out students who transition while at school to the parents of every other student in their year group.

These anti-trans rules are just the tip of the iceberg. This Bill, and associated Committee Report, are truly a Titanic-size assault on the rights of trans and gender diverse kids in NSW.

In policing children’s names and pronouns, their ability to play sport and even go to the bathroom, these are really Texas Republican Party-level interventions in the daily lives of people whose lives don’t matter to them.

It is, frankly, embarrassing. And no-one should be more embarrassed than Premier Gladys Berejiklian, who for 13 months has steadfastly refused to condemn, or even comment on, these proposed changes – all the while allowing Latham to chair the inquiry into his own Bill.

Her reluctance to publicly reject his anti-trans agenda has only allowed it to gather strength. Not only did all three Coalition MLCs on the Committee endorse its recommendations, but her own Parliamentary Secretary for Education declared his personal support for the anti-trans kids Bill earlier this year

The Government now has six months to respond (coincidentally, the deadline is the Monday after next year’s Mardi Gras). With more Coalition MPs so far publicly expressing support for the Bill than opposing it, the starting assumption has to be they are more likely to implement these changes than reject them.

And if they do? The biggest victims will be a generation of trans and nonbinary kids whose own Government will be actively seeking to erase their very existence, closely followed by other LGBT students who will be offered silence rather than support from their schools.

As for World Pride, well, it seems highly likely there would be a global boycott – one I would fully endorse. To do otherwise would be to invite the world to come and dance over the bodies of trans kids, killed by the transphobia of NSW Parliamentarians.

Even if it ultimately does not pass, the debate since August 2020 has already caused significant harm to trans kids in NSW, and to the families who love them.

If we cannot keep trans kids safe, if we cannot protect LGBT students in private schools against discrimination, if we cannot stop the psychological torture from gay and trans conversion practices, if we cannot prevent the physical torture of intersex children – if we can’t defend the most vulnerable among us – tell me again what exactly we would be celebrating at Sydney World Pride?

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Pathetic, and antipathetic, in equal measure

Pathetic: adjective, ‘unsuccessful or showing no ability, effort, or bravery, so that people feel no respect’

Last week, the Senate witnessed one of the most pathetic votes by any Government in recent memory: on Wednesday 1 September, Liberal and National Party Senators voted against amendment sheet 1427 to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021.

As that description suggests, those amendments, moved by the Australian Greens, were largely technical in nature. All they did (or at least would have done, had they passed), was ensure the terms gender identity and intersex status were included in exactly the same sections of the Fair Work Act 2009 (Cth) which cover other protected attributes, such as race, sex, disability and sexual orientation.

That includes provisions which protect workers against adverse action (section 351(1)) and unlawful termination (section 772(1)(f)) on the basis of who they are, meaning the amendments would have guaranteed trans, gender diverse and intersex employees the exact same ability to access the Fair Work Commission as women, people with disability and even lesbians, gay men and bisexuals. [For more background on this issue, see ‘Unfairness in the Fair Work Act’]

As well as being largely technical, they also should have been entirely uncontroversial. Gender identity and intersex status are already protected attributes in the Sex Discrimination Act 1984 (Cth). The amendments were simply intended to bring these two pieces of legislation into closer alignment.

Indeed, the Greens changes in sheet 1427 directly tied the proposed definitions in the Fair Work Act back to the Sex Discrimination Act:

‘gender identity has the same meaning as in the Sex Discrimination Act 1984.

intersex status has the same meaning as in the Sex Discrimination Act 1984.’[i]

And yet, these largely technical and entirely uncontroversial changes were still rejected by the Coalition Government. Together with One Nation, their votes were enough for the amendments to be voted down, leaving the rights of trans, gender diverse and intersex workers in doubt.

It seems like anything that advances the rights of LGBTI Australians, even if just an inch, will inevitably be rejected by the Morrison Liberal/National Government. Which is, frankly, pathetic.

*****

Antipatheic: adjective, ‘showing or feeling a strong dislike, opposition, or anger’

Perhaps the most depressing aspect of this situation is that the 2021 Coalition were voting against the protection of groups which the Coalition had actually supported eight years earlier.

In 2013, the Liberal/National Opposition, under the leadership of Tony ‘no friend of the gays’ Abbott, voted in favour of the then-Labor Government’s historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

That legislation inserted gender identity and intersex status into the Sex Discrimination Act in the first place. But, eight years later, the Coalition refused to back the inclusion of the exact same terms, with the exact same definitions, in the Fair Work Act.

Think about that for a second. The current Government is more opposed to the rights of trans, gender diverse and intersex Australians than the Abbott Opposition was back then.

The ‘strong dislike, opposition or anger’ towards trans rights from notoriously transphobic Senators like Claire Chandler has overwhelmed any semblance of support from other, more sympathetic sections of the Morrison Government.[ii]

The Coalition’s antipathy to trans rights also seems to have overwhelmed their ability to make political judgements that benefit them.

This amendment was a potential win for them. Almost 28 months into a maximum 36-month parliamentary term, it is increasingly likely the Government will not pass a single pro-LGBTI Bill before the next election (including a failure to introduce legislation to implement Scott Morrison’s since-broken promise to protect LGBT students in religious schools against discrimination).

If they had chosen to vote for these changes – the most straight-forward of amendments, merely introducing consistency in the groups protected under the Sex Discrimination and Fair Work Acts – moderate Liberal Senators, and Liberal candidates for socially-progressive electorates, could have pointed to this outcome as evidence they care about LGBTI rights.

Instead, by voting against these amendments, everybody can see that they don’t care, about anybody whose gender identities or sex characteristics are different to societal expectations.

*****

The Government’s reasons for not supporting these amendments also demonstrate the simultaneously pathetic and antipathetic nature of their opposition. Attorney-General, Senator Michaelia Cash, made the following comments in relation to the Greens’ amendments:

‘The government will also be opposing the amendment moved by the Australian Greens. The government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law, regardless of their sexual orientation, gender identity or intersex status. The Sex Discrimination Act prohibits discrimination on these grounds in a range of areas of public life. The primary purpose of this bill is to implement the government’s commitments in its response to the Respect@Work report and to implement, as a matter of urgency, measures to strengthen national laws to better prevent and respond to sexual harassment in Australian workplaces. Discrimination on the basis of gender identity and intersex status is already prohibited in the Sex Discrimination Act…’

Cash raises a number of different arguments there. Unfortunately, none of them are compelling upon closer inspection.

For example, her attempt to declare that the primary purpose of the legislation is ‘to implement the government’s commitments in its response to the Respect@Work report’, might be an explanation of why they did not include these changes in the original Bill. It is not a justification for voting against these changes when they are moved by others.

Even worse, Cash’s argument is directly undermined by the words of her own Department, exactly one year-to-the-day beforehand. In response to my letter to then-Attorney-General Christian Porter calling for him to address this very issue, I received a reply dated 1 September 2020 from an Assistant Secretary in the Attorney-General’s Department, which included the following paragraph:

‘I note the discrepancies you raise between the language in the Fair Work Act 2009 and the Sex Discrimination Act 1984. At this point in time, the Australian Government has not indicated an intention to amend the Fair Work Act 2009 to explicitly include gender identity or intersex status as grounds for lodging an adverse action or unlawful termination application. In saying this, however, you may be interested to know that the Australian Government is currently considering its response to a number of recommendations made in the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report. This process provides scope for the issues you have raised here to be considered further in the implementation of any proposed recommendations.’ [emphasis added]

Not only did the Department acknowledge this legislative gap, but they highlighted the Respect@Work response as an opportunity for this issue to be resolved. It was the Government itself, and possibly even Michaelia Cash herself or her predecessor Christian Porter, who actively decided to ignore, rather than address, this discrepancy.

Cash’s other arguments are just as flawed. She mentions not once, but twice, that discrimination on the basis of gender identity and intersex status is already prohibited under the Sex Discrimination Act. Which, well, yes, of course it is. As is discrimination on the basis of sex and sexual orientation.

The point is, while sex and sexual orientation are also explicitly included in the Fair Work Act, gender identity and intersex status are not. Meaning women, lesbians, gay men and bisexuals have clear rights to access the Fair Work Commission, while trans, gender diverse and intersex workers do not. That inequality of access is exactly the issue the Greens’ amendments were intended to address, amendments the Government chose to reject.

Which reveals the lie at the heart of Cash’s introductory comment, that ‘[t]he government believes that people are entitled to respect, dignity and the opportunity to participate in society and receive the protection of the law, regardless of their sexual orientation, gender identity or intersex status.’

No. No, you don’t. If you did, you would have voted for these amendments.

*****

Of course, for most people paying attention to Australian politics these days, the fact the Coalition Government doesn’t really give a shit about LGBTI Australians is no surprise.

Last Wednesday’s vote by Liberal and National Party Senators against amendments to explicitly include trans, gender diverse and intersex workers in the Fair Work Act wouldn’t even make a list of the top five worst things the Abbott/Turnbull/Morrison Government has done in relation to LGBTI rights over the past eight years.

[A list that, from my perspective, would include (in no particular order):

  • Holding an unnecessary, wasteful and divisive public vote on our fundamental human rights
  • Defunding an evidence-based program against anti-LGBTI bullying in schools
  • Detaining LGBTI people seeking asylum in countries that criminalise homosexuality
  • Failing to implement the recommendations of the 2013 Senate Inquiry into the Involuntary or Coerced Sterilisation of Intersex People (allowing these human rights violations to continue to this day), and
  • Breaking its promise to protect vulnerable LGBT kids against abuse and mistreatment by publicly-funded religious schools.]

It probably won’t even be the worst thing the Coalition Government does to LGBTI Australians this year, with Cash also committing to introduce the recently-revived Religious Discrimination Bill before the end of 2021.

This is legislation that, based on the Second Exposure Draft, would encourage anti-LGBT comments in all areas of public life, as well as making access to essential healthcare much more difficult, among other serious threats. [For more background on this issue, see ‘The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked’

Nevertheless, just because this isn’t the worst thing they’ve ever done, doesn’t mean their vote on Wednesday was any less abhorrent.

And just because I earlier described these amendments as largely technical in nature, doesn’t mean they were any less important.

As well as guaranteeing access to the Fair Work Commission, these amendments were an opportunity for the Government, and Parliament more broadly, to reaffirm that trans, gender diverse and intersex Australians should enjoy the same rights as everyone else.

In rejecting the Greens’ amendments to add gender identity and intersex status to the Fair Work Act, the Government repudiated this fundamental principle.

The Senate vote last Wednesday perfectly encapsulates the Morrison Government’s pettiness, and the meanness of its approach, when it comes to LGBTI rights.

How pathetic in their lack of principle, and basic decency.

How antipathetic to the human rights and dignity of their fellow Australians.

In roughly equal measure.

Morrison, Turnbull and Abbott, divided by political ambition but united in their pathetic, and antipathetic, approach to LGBTI rights.

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Footnotes:


[i] Earlier amendments (sheet 1373) that would have introduced the protected attribute of sex characteristics, rather than intersex status, in the Fair Work Act to reflect both best practice and the views of intersex advocates such as Intersex Human Rights Australia, failed with both the Government and Labor expressing their opposition. Sheet 1427, which included intersex status based on the definition in the Sex Discrimination Act was then moved by the Greens because it was seen as being entirely uncontroversial and therefore more chance of succeeding.

[ii] NSW Liberal Senator Andrew Bragg did refer to the issue of trans, gender diverse and intersex inclusion in the Fair Work Act in his second reading debate speech, expressing support for it being addressed at some point, but did not find the courage to cross the floor on the amendment itself.

Surprise!* Mark Latham’s Inquiry is just as unbalanced and transphobic as his Bill

[*Not surprising in the slightest]

In August 2020, NSW One Nation MLC Mark Latham introduced the Education Legislation Amendment (Parental Rights) Bill 2020. As I wrote at the time, this Bill is the worst legislative attack on LGBTI rights in Australia this century. 

In particular, Latham’s Bill seeks to erase trans and gender diverse students from classrooms and schoolyards across NSW. It would also establish a UK ‘section 28’-style prohibition on positive references to anything at all to do with LGBT people, as well as introducing an offensive and stigmatising definition of intersex variations of sex characteristics.

This Bill should have been immediately rejected by the Berejiklian Liberal/National Government and (at the time McKay) Labor Opposition. Instead, Coalition and Labor Members of the Legislative Council voted to refer the Bill for inquiry by the Portfolio Committee No. 3 – Education, which just so happens to be chaired by Mark Latham himself, thus creating a serious and ongoing conflict of interest.

Even if there might be circumstances in which an MLC should be given authority to lead an inquiry into their own legislation (and, readers, I can’t think of any right now), a chair in this situation should be acutely aware of the responsibilities of their position and their obligation to act impartially and respectfully.

Unfortunately, as demonstrated in the 11 months since then, Mark Latham is not such a chair. Indeed, Mark Latham’s Inquiry into Mark Latham’s anti-trans kids Bill has been as unbalanced and transphobic as his legislation is, as evidenced in the following five areas:

  1. Lack of trans witnesses

Latham’s inquiry conducted hearings on April 20 and 21, 2021. Across those two days, 42 witnesses were scheduled to give evidence. Do you know how many were trans or nonbinary children – that is, the people who stand to lose the most if this legislation passes?

Zero.

In fact, there was only one identified trans witness out of 42 (the amazing Teddy Cook, from ACON), plus one parent of a trans child. As far as I am aware, that means 40 witnesses out of the 42 scheduled to appear (or 95% of witnesses) were neither trans themselves nor the parent of a trans child.

This imbalance alone is enough to dismiss the validity of the entire inquiry.

It’s not like there weren’t other trans individuals and organisations ready and willing to give evidence either. As I understand it, the Gender Centre – described in its submission as ‘NSW’s leading trans led organisation, providing 95% of all trans specific services in the state’ that ‘support over 500 NSW transgender and gender diverse families generally’ – were not invited to appear.

The selection of non-trans witnesses was biased, too. Of the religious organisations invited to give evidence, only faith groups that expressed support for the Bill were given a guernsey. 

As noted by Greens MLC David Shoebridge during the hearings: ‘Unfortunately, the Coalition and the Chair determined not to allow any witnesses to appear from the parts of the Christian faith who oppose the bill.’ (Hearing Transcript, 20 April, page 8).

This meant religious organisations that expressed their opposition to the Bill through their submissions – including the Pitt St Uniting Church, and Uniting Church LGBTIQ Network – did not receive an invitation to appear.

In my view, the lack of trans witnesses, and biased selection of others, rendered this inquiry process illegitimate from the outset.

2. Disrespectful treatment of submitters and witnesses

It wasn’t just the selection of witnesses that was unbalanced, but also how organisations that made submissions, or appeared as witnesses, were (mis)treated – especially by the chair.

Take, for example, the Catholic Education Diocese of Parramatta, who made a submission to the inquiry in which they expressed their opposition to Latham’s Bill.

For this ‘sin’, not only were they not invited, but they were attacked in their absence.

When Shoebridge noted that ‘The Chair and the Coalition would not allow them to come. They voted on majority to prevent them coming’, Latham ultimately responded with ‘Well, there has to be a degree of sanity here.’ (Hearing Transcript, 21 April, page 36).

Imagine, as the Chair of an inquiry, thinking it appropriate to imply an organisation that made a submission to that inquiry ‘lacked sanity’.

The attack worsened from there, with Latham asking the witness from Catholic Schools NSW (who did oppose the Bill and were not coincidentally offered an invitation) to provide data about enrolment and academic performance of schools in the Parramatta Diocese specifically:

My understanding is that a number of the Parramatta parents are none too happy about this position and that the Parramatta diocese enrolment share and academic results have collapsed in recent times because of the so-called progressive approach to education. Do you have some data on that that you can furnish to the Committee?’ (Hearing Transcript, 21 April, page 36).

In my opinion, there can be no justification for asking questions which suggest a vendetta against religious bodies which have the temerity to take a different policy view to yours.

Nor was this the only example of Latham’s disrespect to submitters or witnesses. Later that day he made a series of what can only be described as unprofessional remarks in response to the evidence of Georgia Burke, representing the LGBTI Subcommittee of Australian Lawyers for Human Rights.

Burke: ‘… The best interests of the children are entirely disregarded with the primacy of parents put to the forefront.’

Latham: ‘Jesus, seriously.’

Burke: ‘It is interesting to reflect on the comments of the special rapporteur to which we refer in our submission.’

Latham: ‘The best interests of the children are disregarded when the parents are put to the forefront?’

Shoebridge: ‘Carry on.’

[Labor MLC Anthony] D’Adam: ‘Carry on, they are just being rude.’

Latham: ‘That is unbelievable.’

Burke: ‘His report of 2010 – and I do have a copy with me if it assists the Committee for me to table that report.’

Latham: ‘Jesus Christ.’ (Hearing Transcript, 21 April, page 63).

[As an aside, it might be interesting to know what the religious fundamentalists who support Latham’s similarly-extreme ‘Religious Freedom’ Bill think about his blasphemy?]

As chair, Latham also accused witnesses of either ‘fabrication’ (saying to Ghassan Kassisieh of Equality Australia: ‘That is not what the Bill says. That is just a fabrication, I am sorry.’ Hearing Transcript, 20 April, page 63), or ‘making something up’ (to Jared Wilk of the NSW Council for Civil Liberties: ‘You see, that is the problem. You are making something up about the bill that is not actually true.’ Hearing Transcript, 21 April, page 65).

This is not the behaviour of somebody who should be in charge of anything, let alone an inquiry into legislation which carries the very real potential to undermine the human rights of some of the most vulnerable members of the community.

3. Allowing irrelevant evidence

The potential impact of Latham’s anti-trans kids Bill is incredibly broad – applying not just to classroom teaching, but also to ‘instruction, counselling and advice’ provided to students by principals, school counsellors, non-teaching staff, contractors, advisors and consultants, non-school based staff, contractors, advisors and consultants, and even volunteers (proposed new section 17C of the Education Act 1990).

However, one thing it doesn’t actually apply to is school sport. Despite this, Latham’s inquiry invited Katherine Deves from ‘Save Women’s Sport Australasia’ to address the Committee, where they were given free rein to make comments like:

It requires them [women and girls] to forego their right to compete on a level playing field in sport because fair competition is destroyed, athletic opportunities are lost and players’ safety is completely disregarded. On 1 December last year a senior bureaucrat in the NSW Sports Minister’s office told me that a woman would have to be killed before gender inclusion sports policies would be withdrawn.’ (Hearing Transcript, 21 April, page 24).

And

‘We believe that the female sports category should be for female-born females only. We need to start asking boys and men to be more accommodating of non-gender-conforming boys and accommodate them in their sports instead of expecting the girls and the women, to their own detriment, to accept them into their sports. We are getting stories now of boys competing in girls’ sports and winning and taking sports on the podium and taking sports on the team and girls being harmed.’ (Hearing Transcript, 21 April, page 27).[i]

Leaving to one side the lack of evidence to substantiate these claims, this testimony had nothing whatsoever to do with the Bill – a point which Shoebridge raised: ‘Point of order: There is not a single part of the terms of reference of this inquiry that relates to sport and I cannot see how either the opening submission or this question relates to the terms of reference.’

About which Latham eventually ruled: ‘I do not think censorship here is appropriate. The witness can answer the question.’ (Hearing Transcript, 21 April, page 27).

Except ensuring witnesses at least vaguely stick to the terms of reference of the inquiry is not censorship, but one of the core responsibilities of a Committee Chair, something Latham spectacularly failed to fulfil here.

Perhaps unsurprisingly, women’s sport was not the only unrelated matter that was allowed to be raised – Latham also provided ample space for witnesses to talk about access to bathrooms, something that is also unaffected by his legislation.

For example, Terri Kelleher of the Australian Family Association was given the opportunity to make the following comments:

‘Why would you want to set up – because part of the instructions or guidelines for schools as a result or a flow-on from teaching gender fluidity, you know, that people are the gender they feel and it may not be their natal sex, is to allow natal males into girls’ toilets. Now, that is not saying that all males or all boys who identify as girls are going to be a threat, but it sets up a situation where that can occur. This is very serious in the light of the child-on-child sexual abuse in schools.’ (Hearing Transcript, 20 April, pages 40-41).

And then allowed to elaborate:

‘One of the risks … is the staff is to monitor the length of time in a change room. So staff are to monitor the length of time. It puts teachers in a difficult situation. Are they to be rostered outside toilets? Does there always have to be someone supervising wherever the toilets may be used, which would be throughout the day?’ (page 41).

Which led to the following exchange between MLCs sitting on the Committee:

D’Adam: ‘Point of order: We are taking evidence on a bill that has nothing to do with unisex toilets.’

Shoebridge: ‘Or teachers sitting outside toilets timing.’

D’Adam: ‘It has nothing to do with it. It is outside the terms of reference of this inquiry and I would ask the Chair to bring the witness back to-‘

[Nationals MLC Wes] Fang: ‘I have been waiting for this one. ‘Any other matter’ – it has been called on me so many times.’

Latham: ‘Yes. Related matters. I think the use of – I raised earlier on the problem of boys declaring themselves to be girls to get into the girls’ change room. That was in order and I think this is in order as well.’ (page 41)

In effect, the Chair of the inquiry ruled that ‘bathroom panic’-style testimony was in order because he himself had raised the issue of change room access, from the Chair, earlier in the day. This is the opposite of an impartial investigation.

4. Providing a platform for transphobia

As we have already seen, by allowing witnesses to talk about unrelated matters like trans participation in sport and ‘bathroom panic’ (including rhetorically linking trans access to toilets to child sexual abuse), Latham ensured his inquiry provided a platform for transphobia. Nor were these the only examples of extreme prejudice against trans and gender diverse young people over those two days.

This includes multiple witnesses suggesting that the gender identities of the majority of trans and nonbinary kids were not real but instead the product of mental illness:

‘When parents are kept in the dark about gender ideology and about what children are exposed to related to gender fluidity, they face an increased risk of harm. School officials and others do not know of, or may disregard, a child’s personal history – perhaps trauma or abuse or other diagnosed conditions, whether autism or mental health issues. They may play a role in a child’s identity concerns.’ (Mary Hasson, Hearing Transcript, 21 April, page 3).

Dianna Kenny of something called the ‘Society for Evidence-based Gender Medicine’ was permitted to make the following extraordinary – and extraordinarily offensive – claim:

‘There is a very minute number of people who are what we try to call genuinely trans, and suddenly we have seen a 4,000 per cent increase in the number of young people identifying as trans. Only a tiny fraction of that 4,000 per cent increase are going to be what we call genuinely trans. The rest of them are in the thrall of the trans lobby, and they have serious mental health issues and other things that need to be addressed.’ (Hearing Transcript, 21 April, page 33).

When asked by Labor MLC Anthony D’Adam about those people who Kenny claimed were not ‘genuinely transgender’ (‘Those who are not in that category – the others – you are saying that there is something wrong with them, that they are sick.’), Kenny replied:

‘It is a manifestation of serious mental health issues, yes. I work clinically with those people. I see them at close quarters. I work intensively with the families and with the young people themselves. The evidence is increasing exponentially that those young people have serious health issues that need to be addressed…’ (Hearing Transcript, 21 April, pages 33-34).[ii]

From my perspective, this does not read like a reasonable debate of issues related to the Bill but instead seems to be a free kick for witnesses to make derogatory comments about the mental health and wellbeing of trans and nonbinary kids.

Of course, being a parliamentary hearing about trans rights in 2021, a range of other transphobic tropes – from ‘desisters’[iii]/’de-transitioners’[iv] to ‘rapid onset gender dysphoria’[v] and ‘social contagion’[vi] – made predictable appearances (and, just as predictably, none were based on high-quality, independently-verified research, because, well, it doesn’t exist).

Mark Sneddon of the Institute of Civil Society even gravely warned that: ‘What we are trying to do – or what I understand this bill is trying to do – is to reduce the social contagion influence putting more people onto the conveyor belt of gender transition.’ (Hearing Transcript, 20 April, page 42).

A quote which, perhaps unintentionally, goes to the core of the whole debate. Through their evidence, these witnesses all appear to be implying that being trans or nonbinary is itself a negative thing, and should be avoided wherever possible, including through legislation which prevents students from even hearing that gender diversity exists.

Whereas the rest of us understand that a) trans and nonbinary people are a part of the natural spectrum of human gender identity (and indeed always have been), b) trans and nonbinary kids are awesome, and c) there are really two conveyor belts – one which lets trans and nonbinary kids be themselves and delivers them to health and happiness, and one which tells trans and nonbinary kids that they are wrong and should not exist, and abandons them to darkness and depression.

That is really what Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 is all about – keeping trans and nonbinary students in the dark. About who they are. And that who they are is okay. More than okay. Beautiful.

Latham’s legislation is deeply transphobic. Which means it is no surprise that so was the evidence of many of the witnesses appearing at his inquiry. And that includes Latham himself, who even deliberately deadnamed and misgendered a prominent transgender Australian. (Hearing Transcript, 20 April, page 48).

5. Giving evidence from the chair

The fifth and final way Latham’s inquiry was unbalanced is not directly linked to trans and gender diverse children, but nevertheless goes to how ‘un-parliamentary’ his behaviour was – and that was his frequent attempts to give evidence from the chair.

For example, after raising the (unverified) story of a student whose school counsellor supported their social transition against the wishes of their parents, he was asked by Shoebridge ‘Is that in evidence?’ and by D’Adam: ‘Point of order: Is the chair giving evidence?’ To which Latham replied:

‘That is in evidence – and did not tell the family. So, Jack has asked me a question. I have given you a brief summary and will be presenting more of that evidence as the inquiry unfolds…’ (emphasis added, Hearing Transcript, 20 April, pages 24-25).[vii]

Perhaps the most extreme example came when Latham attempted to ask Ghassan Kassisieh of Equality Australia about a range of non-LGBTI issues, before making unsubstantiated claims about climate change, leading not just the Greens’ David Shoebridge but even the Nationals’ Wes Fang to suggest Latham should not be doing so as chair:

Latham: ‘Climate change – that while there is evidence of warming, it is not at some of the alarmist levels that have been projected. Sea levels are not rising and Tim Flannery was wrong about his predictions that our dams in western Sydney would never fill again.’

Shoebridge: ‘Point of order: Simply making these unfounded, biased assertions from the chair on matters unrelated to the terms of reference of this inquiry is not of assistance and, in fact, it does not fit with any of the terms of reference of this inquiry.’

Fang: ‘To the point of order-‘

Latham: ‘It fits in the submission. It is the witness’s submission – wanting to know the other side of the story. I am seeking a response about the other side of the story.’

Shoebridge: ‘Call me old-fashioned but I was looking at the terms of reference of the inquiry.’

Fang: ‘To the point of order: I actually support Mr Shoebridge here. Chair, you should not be doing it and, like Mr Shoebridge, if you are going to make these unsubstantiated comments you should do it just as a participating member, like Mr Shoebridge does often through this Committee.’ (Hearing Transcript, 20 April, page 59).

Fang nails the problem here – Mark Latham should never have been permitted to prosecute the case for his own legislation as chair of the same Committee inquiring into it.

It was an inevitable conflict of interest, and just as inevitably led to serious shortcomings of the inquiry generally, and the hearings on April 20 and 21 in particular.

From a lack of trans witnesses, and only inviting faith bodies that supported the Bill to appear while ignoring those religious organisations that opposed it.

To criticising trans-supportive faith groups in their absence, implying they ‘lacked sanity’, and acting disrespectfully and unprofessionally to other witnesses.

Allowing completely irrelevant testimony, about trans inclusion in girl’s and women’s sports, and ‘bathroom panic’, which had exactly nothing to do with the legislation being considered.

And giving voice to transphobia, including providing a platform to witnesses who dismissed the gender identity of the majority of trans and nonbinary kids as not being real while simultaneously describing them as suffering ‘serious mental health issues’.

Before using the position of chair to give his own evidence, rather than impartially examining the evidence of witnesses.

If you were being charitable, you could describe these hearings, and the overall inquiry they were a part of, as a farce.

But, after reading through all of the testimony given over those two days, including the derogatory comments about some of the most vulnerable members of our community, I am not feeling especially charitable. So I will call it as it is:

This inquiry, and the fact Mark Latham has been allowed to serve as its chair, is a sick joke. And, if you can’t tell by now, I am not amused.

The other thing that is definitely not humorous? The fact the Coalition Government, and Labor Opposition, have allowed this embarrassing debasement of NSW Parliament to drag on for almost a full year.

This legislation seeks to erase trans and nonbinary kids in schools across NSW. It will cause harm to them, and to all LGBTI children and young people.

These things have been known since it was first introduced in August 2020 – and yet neither Gladys Berejiklian, nor Jodi McKay and now Chris Minns, have done the bare minimum: to speak out against it, and declare they will not support legislation that attacks kids.

What the fuck are they waiting for?

It’s beyond time for the major parties to finally reject Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020, and Latham’s equally unbalanced and transphobic inquiry into it.

NSW Parliament can be, should be, better than this. Trans and nonbinary kids need it to be.

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.

Footnotes:


[i] Nor was Deves the only witness allowed to raise the irrelevant issue of trans inclusion in girl’s and women’s sports, with Terri Kelleher of the Australian Family Association making the following comments:

‘What right do they [girls in schools] have to fair sporting competitions? There is a worldwide movement at the moment speaking out for women’s and girl’s rights to their own sporting competitions on the ground that natal males have serious advantages over females.’ (Hearing Transcript, April 20, page 40).

[ii] Strangely enough, despite Kenny arguing that ‘genuinely transgender’ people are extremely rare, they are also capable of ‘destroying the fabric of the nuclear family’ (‘But to withdraw parental guidance and authority in the way that the transgender lobby has implemented with children declaring themselves to be transgender is really destroying the fabric of the nuclear family.’ Hearing Transcript, 21 April, page 28), which indicates trans people must have super-powers.

[iii] John Steenhof of the Human Rights Law Alliance (Hearing Transcript, 20 April, page 36) and Mark Sneddon of the Institute for Civil Society (Hearing Transcript, 20 April, page 42).

[iv] Patrick Byrne of the National Civic Council, who suggested that transition – and not transphobia – was the cause of high rates of depression and suicide amongst transgender people: ‘Are you going to teach that there is a growing movement of de-transitioners and the risk if you go all the way down the road to full sex change surgery, a highly intrusive medical surgery, and then the longer-term risks from that. The best study on that was in Sweden, I think it was, the long-term effects of … transitioning, which had a suicide rate of 19 or 20 times the rest of the population.’ (Hearing Transcript, 20 April, page 44), and Kirralie Smith of Binary Australia (Hearing Transcript, 21 April, page 9).

[v] Dianna Kenny of the Society for Evidence-based Gender Medicine (Hearing Transcript, 21 April, page 29 and page 31).

[vi] Mary Hasson (Hearing Transcript, 21 April, page 3), and a favourite phrase of Dianna Kenny, who used it multiple times, including in this truly non-sensical quote revealing she apparently does not understand the difference between gender identity and sexual orientation:

‘Basically, what is happening is that children are being taught erroneous information and based on erroneous information these children are becoming extremely confused and as through a process of social contagion we are seeing very large increases in the number of children declaring themselves either non-binary, transgender, genderqueer, asexual, pansexual, omni-sexual, demi-boys and demi-girls.’ (Hearing Transcript, 21 April, page 25).

[vii] Another example occurred after a witness attempted to cite Latham’s Second Reading Speech for the Bill as ‘evidence’:

D’Adam: ‘Just to further elaborate, obviously we have all heard the second reading speech.’

Shoebridge: ‘It is not evidence.’

D’Adam: ‘That is not necessarily evidence of what is occurring. It is an assertion from a Member of Parliament.’

Latham: ‘Order! There is a professional development course. I will show you the course. We have got it on tape.

Shoebridge: ‘There is no order. It is not evidence.’ (Hearing Transcript, 20 April, page 37).

Friends, Jagged Little Pill and Transphobia in the NSW Legislative Council

In 1996, Australians were watching Friends and listening to Alanis Morissette while the NSW Upper House was the site of a toxic debate about trans law reform.

In 2021, Australians are watching the Friends Reunion, can book tickets to Jagged Little Pill: The Musical and the NSW Legislative Council is once again hosting hostile discussion about the rights of its trans citizens.

It is perhaps disappointing to realise how little progress has been made in terms of pop culture and representations of transgender people – with the Friends Reunion refusing to address the recurring transphobic jokes made at the expense of Chandler’s parent, and Jagged Little Pill: The Musical erasing the gender identity of a fictional nonbinary character on its journey to Broadway.

But it is downright depressing comparing the circumstances surrounding the Transgender (Anti-Discrimination and Other Acts) Act 1996 – which received royal assent 25 years ago this Saturday (19 June 1996) – and the current Parliamentary inquiry into the Education Legislation Amendment (Parental Rights) Bill 2020.

For a start, much of the language in the two debates, a quarter of a century apart, is disturbingly similar, with both deliberate misgendering,[i] and scaremongering about trans women in sports, playing starring roles in each.

With more than a hint of hyperbole, Liberal MLC Marlene Goldsmith declared in 1996 ‘This legislation will mean the end of women’s sports as a concept, an entitlement and a right.’

In 2021, Katherine Deves, speaking on behalf of something called ‘Save Women’s Sport Australasia’, complained that ‘gender identity’ requires women and girls ‘to forego their right to compete on a level playing field in sport because fair competition is destroyed, athletic opportunities are lost and players’ safety is completely disregarded.’

Meanwhile, any small advances – multiple references to ‘tranys’ in the 1996 Hansard[ii] thankfully haven’t been repeated more recently – don’t begin to overcome larger retreats elsewhere.

In the intervening 25 years, opponents of legal equality for trans people have pivoted from expressing pity about their plight, while dismissing trans issues as unimportant,[iii] to portraying trans people as potential predators, and a fundamental threat to ‘Western civilisation’.

This dramatic escalation in rhetoric comes not just from the mover of the latter Bill (One Nation’s Mark Latham, who described trans-inclusive education as ‘part of the post-modernist attack on the nuclear family’ in his Second Reading Speech), but also from multiple witnesses who appeared at April’s hearings into his horrific law.

For example, Mark Sneddon of the Institute for Civil Society said (rather uncivilly, and somewhat ominously) in supporting the Bill: ‘What we are trying to do – or what I understand this Bill is trying to do – is to reduce the social contagion influence of putting more people onto the conveyor belt of gender transition.’

Even fear campaigns about women’s bathrooms have worsened, rather than improved, over the past quarter century.

The only reference to toilets I could find in the 1996 Legislative Council debate came from Fred Nile (yes, the same one still sitting in that chamber), who said: ‘Because I am obviously not a woman, I do not know [how] a woman would feel to have a transsexual who was born a male sitting beside her in a woman’s washroom or powder room in a factory, office or club.’

In 2021, this argument has been weaponised, much more explicitly utilising the language of ‘threat’, with Terri Kelleher of the Australian Family Association giving evidence that ‘Is it not discrimination against natal girls if natal male students who identify as female are allowed to use their toilets, change rooms and showers and share overnight school camp accommodation? What about their right to feel safe and to their privacy in spaces where they may be in a state of undress or asleep?’ and later ‘Now, that is not saying that all males or all boys who identify as girls are going to be a threat, but it sets up a situation where that can occur. That is very serious in the light of the child-on-child sexual abuse in schools.’

And, although most participants in the 1996 debate seemed to at least accept that transgender people are who they say they are, by 2021 a number of extremists appearing before Latham’s Committee were regularly making points about high rates of ‘de-transitioning’ and distinguishing between ‘genuine’ and ‘non-genuine’ trans people, before citing ‘social contagion’ and ‘rapid onset gender dysphoria’ (despite all four arguments being completely unsupported by any evidence whatsoever).

However, the toxic atmosphere surrounding Latham’s anti-trans kids Bill, and the fact contemporary discussion seems to be even worse than it was two and a half decades ago, is merely one small part of much larger frustrations about the situation we find ourselves in today.

At the very least, the 1996 debate was about legislation that would ultimately deliver multiple steps forward for trans rights in this state. Not only did the Transgender (Anti-Discrimination and Other Acts) Act insert transgender as a protected attribute in the NSW Anti-Discrimination Act 1977, it also saw NSW become the first jurisdiction in Australia to legally prohibit transphobic vilification (something that still hasn’t happened under Commonwealth law, nor in Victoria, Western Australia, South Australia and the Northern Territory).

The same Act also amended the Births, Deaths and Marriages Registration Act 1995 to allow transgender people who had undergone gender affirmation surgery to access identity documentation reflecting their gender identity.

These were genuinely historic reforms.

In contrast, the deceptively-named Education Legislation Amendment (Parental Rights) Bill 2020 seeks to completely erase real-life trans and nonbinary students from classrooms and schoolyards across NSW, censoring the curriculum and denying them affirmation and support from teachers, principals and even school counsellors.

As I have written elsewhere, this legislation is the worst legislative attack on LGBTI rights in Australia this century.

Some people might be tempted to dismiss this threat given it is merely the product of fringe extremists in the NSW Upper House (one of the chamber’s perennial features). Except the positions of the major parties on this Bill are, so far, worse than when a generation of young people were mislearning the definition of ironic (myself included).

Back then, the Carr Labor Government relentlessly pursued their reforms to anti-discrimination and birth certificate laws. And, while the Collins Liberal/National Opposition ultimately voted against them (because of baseless concerns about the impact of birth certificate changes to women’s sport, including nonsensical statements about the Sydney Olympics), they at least expressed in-principle support for trans anti-discrimination protections.[iv]

In contrast, in the 10 months since Latham introduced his legislative assault on trans kids, neither the Berejiklian Liberal/National Government nor the McKay, and now Minns, Labor Opposition have publicly condemned it.

Indeed, they both voted in the Legislative Council for the Bill to be considered in more detail by a Committee chaired by Latham himself, while the Liberal Parliamentary Secretary for Education Kevin Conolly has expressed his personal support for it.

In failing to reject Latham’s transphobia, could the major parties be any more pathetic?

But the most frustrating part of all is that we need to expend significant time and energy working to defend existing rights, instead of campaigning for improvements to those same reforms passed in 1996.

Because those changes were far from perfect, even when they were first passed.

For example, the amendments to the Anti-Discrimination Act inserted a definition of ‘recognised transgender person’, applying to people who have undergone gender affirmation surgery and had that recognised under the Births, Deaths and Marriages Registration Act, even though it is irrelevant to determining whether anti-trans discrimination was prohibited under Part 3A (poor drafting which is still causing confusion in 2021, as demonstrated by transphobic discrimination by McIver’s Ladies Baths in Coogee earlier this year).

Unfortunately, neither the definition of ‘recognised transgender person’ nor Part 3A introduced protections against discrimination for trans and gender diverse people whose gender identity was nonbinary (instead only covering people who ‘identify as a member of the opposite sex’).[v]

The 1996 Anti-Discrimination Act reforms also permitted discrimination against trans students and teachers in publicly-funded ‘private educational authorities’, including (but not limited to) religious schools.[vi] Something that was difficult to justify 25 years ago, and is impossible to defend now.[vii]

Finally, in limiting access to updated birth certificates to people who have undergone gender affirmation surgery,[viii] the Births, Deaths and Marriages Registration Act changes excluded the majority of trans and gender diverse people who are either unable to access such procedures (including for financial reasons) or who do not wish to. After all, trans people should be in control of their gender identity, not the(ir) doctor.

This weakness is not brand new information, either. The serious limitations of the birth certificate changes were raised by both Democrat[ix] and Greens MLCs[x] at the time.

Indeed, over the last decade, South Australia, the ACT, Northern Territory, Tasmania and Victoria have all removed any requirement for transgender people to have physically invasive medical treatment in order to obtain new identity documentation.

While the re-elected McGowan Labor Government in WA is under pressure to implement the recommendations of a 2018 WA Law Reform Commission Report which supported the same, and the Palaszczuk Labor Government has committed to introduce its own changes later this year.

Which means it is likely that at some point this term NSW will become the only jurisdiction in Australia which still requires trans people to undergo surgery to access a new birth certificate. Just in time to be subjected to (well-deserved) global scorn as Sydney hosts World Pride in February and March 2023.

Nevertheless, just as the Liberal, National and Labor Parties have refused to publicly reject Latham’s anti-trans kids Bill, none are currently promising to fix the problems in the Anti-Discrimination Act first introduced back in 1996, nor have any committed to finally bring the Births, Deaths and Marriages Registration Act into the 21st century by allowing people to update their birth certificates without surgery or other physically invasive medical treatments.

This ongoing silence, on the fundamental human rights of the trans community, is simply not good enough. We really oughta know where the major parties stand on Latham’s anti-trans kids Bill, anti-discrimination reform and birth certificate requirements by now.

We must use whatever influence we have to demand more on these issues from our elected representatives. And by ‘we’ here I’m not talking about trans and gender diverse people, who are already fighting just for the ability to live their lives without discrimination, and to learn without erasure.

It’s time for cisgender members of the LGBT community, as well as our cis-het allies, to step up, and put pressure on Gladys Berejiklian and her Cabinet, and Chris Minns and his Shadow Ministers, to prioritise the dignity and equality of NSW’s trans and nonbinary citizens.

We must do so urgently, too. Because right now, trans and gender diverse people have very few friends in the NSW Legislative Council, and NSW Parliament more broadly.

While there remains a real chance their legal rights will go backwards, rather than forwards, in the near future. Which would be a very jagged little pill to swallow.

*****

Take Action

Following correspondence I sent in February calling on NSW MPs to reject the Education Legislation Amendment (Parental Rights) Bill 2020, today I sent the below short email to the Premier, Opposition Leader, and the Education Minister and Attorney General, plus their shadows. I encourage you to do the same (their contact details are included underneath the text):

Dear Premier

I am writing to urge you to publicly oppose the Education Legislation Amendment (Parental Rights) Bill 2020, legislation which would erase trans and nonbinary students from classrooms and schoolyards across NSW, as well as censor the curriculum and deny them access to affirmation and support from teachers, principals and even school counsellors.

This Bill is the worst legislative attack on LGBTI rights anywhere in Australia this century. It is simply not good enough that, more than 10 months after it was introduced, the people of NSW still don’t know whether you and your Party condemn or condone the harm it will inevitably cause.

Nor is it good enough that trans and gender diverse people in NSW are forced to live with second-rate anti-discrimination and identity documentation laws.

Therefore, I also urge you to publicly commit to amend the Anti-Discrimination Act 1977 to:

  • Remove the unnecessary and confusing definition of ‘recognised transgender person’,
  • Replace the protected attribute of ‘transgender’ with an attribute of ‘gender identity’ and a definition which ensures nonbinary people are protected against discrimination, and
  • Remove the special privileges which allow publicly-funded ‘private educational authorities’, including religious schools, to discriminate against trans and gender diverse students and teachers simply because of who they are.

Finally, I urge you to amend the Births, Deaths and Marriages Registration Act 1995 to allow trans and gender diverse people to self-determine their gender identity without the need for physically invasive medical treatment, such as surgery, as well as to recognise a wider range of gender identities, including nonbinary.

If the NSW Parliament fails to amend these laws, it is highly likely we will soon be the only jurisdiction in Australia which places this unfair and unnecessary barrier in front of its trans and gender diverse citizens. These hurdles must be removed as a matter of priority.

Sincerely

Alastair Lawrie

*****

Premier Gladys Berejiklian webform: https://www.nsw.gov.au/premier-of-nsw/contact-premier

Education Minister Sarah Mitchell webform: https://www.nsw.gov.au/nsw-government/ministers/minister-for-education-and-early-childhood-learning

Attorney General Mark Speakman webform: https://www.nsw.gov.au/nsw-government/contact-a-minister/attorney-general-and-minister-for-prevention-of-domestic-and-sexual-violence

Opposition Leader Chris Minns email: kogarah@parliament.nsw.gov.au

Deputy Opposition Leader and Shadow Minister for Education Prue Car email: londonderry@parliament.nsw.gov.au

Shadow Attorney General Michael Daley email: maroubra@parliament.nsw.gov.au

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

Footnotes:


[i] In the 1996 debate, trans women were erroneously described by opponents as ‘transsexual males’, while in the 2021 hearings trans girls were commonly called ‘biological males’ or ‘natal males’. Mark Latham also deliberately used the deadname of a prominent transgender Australian on 20 April.

[ii] The term ‘tranys’ was used by both supporters and opponents of the 1996 legislation, perhaps indicating that this language did not carry the same pejorative connotations it does today. Either way, it was confronting seeing the frequency with which the term was used back then.

[iii] National Party MLC Duncan Gay opposed the 1996 reforms, stating: ‘I am going to be brief in my opposition to this bill. I am amazed about the amount of time spent by honourable members on what I believe is the most stupid and most unnecessary bill to ever come before this Parliament.’

[iv] With Leader of the Opposition in the Legislative Council, John Hannaford, stating: ‘I accept the need to deal with discrimination against members of the transgender community. I acknowledge that violence is committed against such members of the community and also that those members suffer discrimination. It is necessary to address such elements of violence and discrimination.’

[v] Unfortunately, this problem – only protecting trans people with binary gender identities – is shared by the anti-discrimination laws of Queensland, Western Australian and the Northern Territory. For more, see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.  

[vi] One of many reasons why the NSW Anti-Discrimination Act is the worst LGBTI anti-discrimination law in Australia. For more, see: What’s Wrong with the NSW Anti-Discrimination Act 1977?

[vii] Disturbingly, these represent only the most prominent of the problems with trans protections in the NSW Anti-Discrimination Act. One of the provisions inserted in 1996 provided an exception allowing discrimination by superannuation funds:

‘Section 38Q: A person does not discriminate against a transgender person (whether or not a recognised transgender person) on transgender grounds if, in the administration of a superannuation or provident fund or scheme, the other person treats the transgender person as being of the opposite sex to the sex with which the transgender person identifies.’

Interestingly, the then Attorney General, Jeff Shaw, made the following comment about this provision in his Second Reading Speech:

‘Granting legal recognition also has implications for the superannuation sector in terms of differential contributions and benefits. These implications have not yet been fully determined. The legislation therefore provides for an exemption to legal recognition in this area. Nevertheless, I wish to advise the House that the Government is currently examining this matter with a view to possible further amendments at a later date.’

Except, as you’ve probably guessed by now, those changes never happened – and this exception remains, with the exact same wording, today.

[viii] Interestingly, the Births, Deaths and Marriages Registration Act 1995 provisions were amended in 2008, to replace the original terminology of ‘sexual reassignment surgery’ with ‘sexual affirmation procedure’, but the requirement for surgery was not altered.

[ix] Democrat MLC Elisabeth Kirby stated: ‘Although I support the Government’s amendments to the Registration of Births, Deaths and Marriages Act, I request that the Government give serious future consideration to an expansion of the criteria under which a new birth certificate can be obtained’ before highlighting that only a minority of transgender people undergo surgery.

[x] Greens MLC Ian Cohen also expressed his ‘reservations’ about ‘the certificate provisions not including transgender members of our community who, for whatever reasons, decline surgical intervention’ and later that ‘By using medical interventions as the benchmark for altering documents of identity, the legislation leaves out in the cold 80 per cent of the transgender members of our community who do not avail themselves of medical interventions.’ Perhaps with misplaced confidence he subsequently noted that ‘I am certain that with the passage of time this flaw will be recognised and rectified.’ Well, we’re now at 25 years and counting…