NSW Equality Bill Submission

4 July 2022

Alex Greenwich

Member for Sydney

Via email: sydney@parliament.nsw.gov.au

Dear Mr Greenwich

Submission re Equality Bill Consultation

Thank you for the opportunity to provide this personal submission as part of your consultation process on a proposed Equality Bill.

Thank you also for your leadership on the issue of lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) rights in NSW, something which has been neglected by too many for far too long.

As I have written previously, LGBTIQ rights in NSW are now the worst of any state or territory in the country – through decades of inaction on law reform by the NSW Government and Parliament, Sydney has become Australia’s capital of homophobia, biphobia and transphobia.

This includes the worst LGBTIQ anti-discrimination protections, and the equal worst birth certificate laws for trans and gender diverse people. As well as an ongoing failure to prohibit non-consenting surgeries and other medical interventions on children born with variations in sex characteristics (intersex children), and to ban sexual orientation and gender identity conversion practices.

If these issues are not addressed before next February, then Sydney’s hosting of World Pride 2023 will not be a cause for celebration, but instead the focus of global embarrassment about the incredibly poor state of legal rights for the LGBTIQ people who live here.

In this submission I will make recommendations for reform in the above-mentioned four areas, with a particular focus on LGBTI anti-discrimination law reform, as well as in relation to commercial surgery.

LGBTI reforms to the Anti-Discrimination Act 1977 (NSW)

The NSW Anti-Discrimination Act was once a leader – including becoming the first anti-discrimination law in Australia to prohibit discrimination on the basis of homosexuality in 1982 (before homosexuality was even decriminalised here, which did not happen until 1984).

However, it now compares incredibly poorly across a wide range of criteria, from protected attributes, special privileges for private schools and special privileges for religious organisations generally (for comparative analysis of how it fares overall, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws).

While the Act itself is now so out-dated that it is impossible for it to become best practice without a comprehensive review followed by complete overhaul, there are some immediate, interim steps which could be taken to ensure LGBTI people are better protected against discrimination on the basis of who they are. This includes:

1. Replace homosexuality with sexual orientation

NSW is the only jurisdiction in Australia which does not prohibit discrimination against bisexual, bi+ and/or pansexual people. That is because the protected attribute in the Anti-Discrimination Act is ‘homosexuality’ rather than sexuality or sexual orientation.

This should be replaced with a protected attribute of ’sexual orientation’, with a definition drawing from s4(1) of the Equal Opportunity Act 2010 (Vic):

‘sexual orientation means a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.’

2. Replace transgender with gender identity

NSW also offers extremely narrow protection against discrimination for trans and gender diverse people, effectively excluding people with non-binary gender identities completely.

The protection attribute of ‘transgender’ should be replaced with ‘gender identity’, with a definition again drawing from the Equal Opportunity Act 2010 (Vic):

‘gender identity means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’.

The definition of ‘recognised transgender person’ in section 4 of the Anti-Discrimination Act 1977 (NSW) should be removed at the same time.

3. Add a new protected attribute of sex characteristics

Intersex people are also poorly-served by anti-discrimination laws in NSW, with the Act failing to include a stand-alone protected attribute to prohibit discrimination against them.

A new protected attribute of ‘sex characteristics’ should be added, once again drawing from the Equal Opportunity Act 2010 (Vic):

‘sex characteristics means 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.’

4. Add new protected attributes of sex work, and genetic characteristics

I support-in-principle the inclusion of protected attributes of sex work, with a definition developed in consultation with sex worker organisations such as Scarlet Alliance, and genetic characteristics, developed in consultation with Intersex Human Rights Australia.

5. Remove special privileges for private educational authorities

The Anti-Discrimination Act is the only such law in the country which provides blanket exceptions to all private schools, colleges and universities, irrespective of whether they are religious or not, allowing them to engage in conduct that would otherwise be prohibited.

This includes special privileges to discriminate on the basis of homosexuality against students (s49ZO) and teachers and other staff (s49ZH), and on the basis of transgender status against students (s38K) and workers (s38C), too.

There can be no possible justification for these special rights to discriminate in 2022 – they must be repealed entirely.

In order to ensure LGBT students, teachers and other staff at religious schools are properly protected against discrimination, it is also necessary to introduce a limitation on the general religious exception in section 56 (discussed further below), so that it does not apply to religious educational institutions.[i]

6. Significantly narrow special privileges for religious organisations

In addition to specific exceptions for private schools, colleges and universities, s56 of the Anti-Discrimination Actprovides incredibly broad exceptions for religious organisations more generally.

While paras (a) and (b) of that provision (which permit discrimination in relation to the appointment, and training, of priests and ministers of religion) may be justifiable on the basis of religious freedom (because of their closeness to religious observance), the same justification does not apply to para (c), which allows discrimination by religious organisations in employment (including in the delivery of publicly-funded health, housing and welfare services) and (d), which effectively grants faith bodies a blank cheque to discriminate in service provision.

Both para s56(c) and 56(d) should be repealed entirely.[ii]

7. Remove special privileges for faith-based adoption services

Under s59A of the Anti-Discrimination Act, adoption agencies operated by religious organisations are permitted to discriminate against rainbow families.

This is frankly outrageous, not only discriminating against prospective parents on the basis of irrelevant factors such as their sexual orientation and/or gender identity, but also not being in the best interests of the child, given the exclusion of loving parents on these grounds.

S59A should be repealed entirely.

8. Remove the specific transgender exception in superannuation

Under s38Q of the Act, superannuation providers are given an exception to discriminate against transgender people, by ‘treat[ing] the transgender person as being of the opposite sex to the sex with which the transgender person identifies.’

This type of provision is not found in the equivalent Sex Discrimination Act 1984 (Cth).

Once again, there can be no possible justification for this special right to discriminate in 2022 – this provision must be repealed entirely.

9. Significantly narrow the specific transgender exception in sport

Under s38P of the Act, it is lawful to discriminate against transgender people in relation to a wide range of sporting activities, from elite level through to community sport.

This exception is much, much broader than equivalent exceptions elsewhere, including s42 of the Sex Discrimination Act 1984 (Cth), which includes qualifications that such discrimination is only permitted ‘in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant’, and does not apply to children under 12.

At a minimum, these qualifications should also be introduced in NSW, with consideration of adopting the narrower approach found in s29 in the Anti-Discrimination Act 1998 (Tas), or the proposed changes in this area in the ACT Government’s recent Exposure Draft Discrimination Amendment Bill 2022.

Any reforms in this area should be made in close consultation with trans and gender diverse people, and organisations representing them, and intersex people and their representative bodies as well (given the impact of sporting exceptions on that community).

10. Prohibit civil vilification on the basis of sexual orientation, gender identity and sex characteristics

Assuming changes are made to replace the protected attributes of homosexuality with sexual orientation, and transgender with gender identity (1 and 2, above), equivalent changes to civil vilification provisions under the Anti-Discrimination Act should be made at the same time.

I also support introducing civil prohibitions against vilification on the basis of sex characteristics.

11. Ensure consistency between the Anti-Discrimination Act 1977 and the Crimes Act 1900 (NSW)

If the civil vilification provisions of the Anti-Discrimination Act are updated to cover sexual orientation, gender identity and sex characteristics, equivalent amendments should be made to s93Z of the Crimes Act 1900 (NSW),[iii] which makes it a criminal offence to ‘by a public act, intentionally or reckless threaten or incite violence towards another person or a group of persons’ on the basis of a range of attributes.

Reforms to the Births, Deaths and Marriages Registration Act 1995 (NSW)

As noted above, NSW also has the equal worst birth certificate laws in the country. It is one of just two jurisdictions, alongside Queensland, which still requires transgender people to have genital surgery in order to access identity documentation reflecting their gender identity. 

This situation is completely unacceptable. Gender identity is exactly that, a fundamental characteristic of personal identity, and exists irrespective of surgery, or other forms of medical or psychological treatment.

In my opinion, trans and gender diverse people should be able to update their identity documentation, including birth certificates, solely on the basis of self-identification.

That means imposing no restrictions based on whether the person has had surgery, whether they have had other forms of physical treatment (including hormones), or whether they have accessed counselling or psychological services. It also means not requiring an application to include supporting statements from medical or psychological ‘gate-keepers’.

There is only one Australian jurisdiction which currently meets this standard, the Tasmanian Births, Deaths and Marriages Registration Act 1999, with s28A(2)(b) simply requiring the applicant to make a ‘gender declaration’ in support of their application.

I therefore support-in-principle the introduction of birth certificate reforms in NSW drawing on the existing framework in Tasmania.

One other important element is ensuring children and young people have the right to update their identity documentation, irrespective of whether it makes some adults uncomfortable.

This, at a minimum, would involve allowing young people aged 16 and 17 to make applications for new birth certificates in their own right.

It also means ensuring there is a process to allow children under 16 to update their birth certificates where they have two or more parents or guardians and those parents/guardians disagree among themselves whether to support that application.

Finally, it means introducing a framework to allow children under 16 to apply in the absence of support from a parent or guardian, where a court or tribunal considers it to be in the best interests of the child and also assesses the child to be capable of consenting to the application (such as in s29J of the Births, Deaths and Marriages Registration Act 1996 (SA)).

However, as a cisgender member of the LGBTIQ community, I defer to the views of trans and gender diverse people, and the organisations representing them, on what the exact details of birth certificate reforms should include.

Ending non-consenting surgeries and other medical interventions on intersex children

The unnecessary, non-consenting and/or deferrable surgeries and other medical interventions which continue to be inflicted on children born with variations of sex characteristics (intersex children) aren’t just some of the biggest human rights abuses against the LGBTIQ community, but against any segment of the Australian community.

In this context, it is extremely frustrating that, approaching nine years from the historic 2013 Senate Inquiry into ‘Involuntary or coerced sterilisation of intersex people in Australia’, no Australian jurisdiction has legally prohibited these practices, including there being no signs of action in this area by the NSW Government.

Fortunately, the ACT Government has committed to ending these practices, and recently released their draft Variation in Sex Characteristics (Restricted Medical Treatment) Bill 2022 for public consultation.

On this issue, and whether the ACT legislation is best practice, I defer to the expertise of Intersex Human Rights Australia (IHRA). I note that in their submission to the current inquiry, they wrote:

‘The ACT government draft bill, published in May 2022, arises out of a commitment made in 2019, and deep engagement with community, clinicians, and human rights, bioethics and legal expertise. We commend this bill as a basis for reform in New South Wales.

‘The ACT government bill implements demands in the Darlington Statement of intersex community organisations and advocates in our region, and the Yogyakarta Principles plus 10… Action on this issue implements recommendations 1, 4, 7, 8 and 9 of the 2021 Australian Human Rights Commission report ‘Ensuring health and bodily integrity: towards a human rights approach for people born with variations in sex characteristics’. It also implements calls for reform by UN Treaty Bodies CEDAW, CRPD, CRC, HRC and CESCR, and addresses calls in 2021 position statements citing IHRA staff by the Australian Medical Association and the Public Health Association of Australia. It is consistent with a 2018 submission to the Australian Human Rights Commission by the Royal Australian and New Zealand College of Psychiatrists’ [emphasis added].

I therefore endorse IHRA’s view – that the ACT draft legislation be used as a basis for reform in NSW, with any necessary amendments developed in close consultation with IHRA.

Banning sexual orientation and gender identity conversion practices

The fourth major reform which should be included in the NSW Equality Bill is a prohibition on sexual orientation and/or gender identity (SOGI) conversion practices (sometimes referred to as gay/trans conversion therapy, or ex-gay/ex-trans therapy).

These are incredibly harmful practices which cause immense psychological, and sometimes physical, harm on LGBTQ people.

In my view, SOGI conversion practices should be banned, both through civil prohibitions, allowing for a range of legal responses, and criminal offences in serious cases (such as where it causes actual physical or psychological harm, and/or involves minors or other vulnerable persons).

Importantly, these prohibitions must apply across a broad range of circumstances, including religious settings (where much of the reported harm takes place), and not just in health settings (which means the existing Queensland approach to this issue cannot be supported).

My understanding is there are potential strengths to both the Victorian Change or Suppression (Conversion) Practices Act 2021 and ACT Sexuality and Gender Identity Conversion Practices Act 2020.

However, as with trans and gender diverse birth certificate reform and intersex surgeries, I defer to the views of survivors of sexual orientation and/or gender identity conversion practices, and the organisations representing them, on what the exact details of this legislation should contain.

Legalising commercial surrogacy in NSW

This reform is different from the previous four in that it is not exclusively or even primarily an issue for the LGBTIQ community, given individuals and couples seeking to employ commercial surrogacy services can be cisgender and heterosexual also.

However, rainbow families, and especially male same-gender couples, are disproportionately affected by the current legal approach to surrogacy in NSW, which is not only to prohibit commercial surrogacy domestically (s8 of the Surrogacy Act 2010 (NSW)), but also to capture individuals or couples who engage in commercial surrogacy elsewhere but are ‘ordinarily resident or domiciled in the State’ (s11).

The maximum penalty for this offence is high: up to 1,000 penalty units or imprisonment for 2 years, or both, for individuals.

More than a decade after this legislation was introduced, I don’t believe anyone in NSW genuinely believes that individuals and couples, including rainbow families, are not still engaging in commercial surrogacy arrangements in a wide range of international jurisdictions (and perhaps the only thing to even slow this process down has been since-eased pandemic-related travel restrictions, not domestic laws).

In this context, my personal view is that commercial surrogacy should be legalised in NSW.

There are two reasons for this. The first is based on harm reduction. Yes, I acknowledge that commercial surrogacy arrangements include a significant potential for exploitation, especially for women who are vulnerable or financially disadvantaged.

However, given commercial surrogacy is continuing (and will continue into the future, based on the strong desires of some members of the community to have children), the best way to minimise such exploitation is to permit commercial surrogacy within NSW, with careful and close oversight – in contrast to the current situation which sees people engage in surrogacy in jurisdictions potentially with minimal or no oversight, and with a legal incentive to avoid scrutiny of their activities.

The second reason for legalising commercial surrogacy in NSW is based on the best interests of the child. For the child being born into these families, it simply cannot be in their best interests for their parent(s) to be liable to up to 2 years imprisonment for the crime of the manner of their birth.

*****

Thank you in advance for your consideration of this submission. Please do not hesitate to contact me, at the details provided, if you would like further information or to discuss its contents.

Sincerely

Alastair Lawrie

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

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] This approach applies in the absence of prohibitions against discrimination on the basis of religious belief in NSW. If religious belief is added as a stand-alone protected attribute to the Anti-Discrimination Act 1977 (NSW) in the future, it may be appropriate to allow discrimination by religious schools on the basis of religious belief only (and not other attributes), but only against students at the point of enrolment, and only against teachers and other staff where it is an inherent requirement of the role.

[ii] As with the previous footnote, this approach applies in the absence of a stand-alone protected attribute of religious belief under the Act. If such an attribute were to be introduced in future, it may be appropriate to permit some discrimination on the basis of religious belief only, in narrowly-restricted circumstances, informed by existing laws in Tasmania, and Victoria.

[iii] This includes potentially updating the existing definitions of sexual orientation and gender identity in s93Z of the Crimes Act, as well as replacing the attribute of intersex status with sex characteristics.

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

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.

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

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

Welcome to Sydney: Australia’s Capital of Homophobia, Biphobia and Transphobia

Over the past week, the Australian media has been busy re-living the Sydney 2000 Olympics during its 20thanniversary. While this trip down nostalgia lane has been a welcome distraction from the living nightmare that is 2020, it has also been a reminder of the lost opportunity to build on that brief moment of unity.

To borrow from a certain fracking drag queen reality TV host, in the two decades since the Olympics Sydney[i] has been ‘resting on pretty’.

In terms of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, the situation could just as easily be described as ‘resting on party’.

Known around the world for the Gay & Lesbian Mardi Gras Parade, Party and Festival, Sydney’s reputation as an LGBT-inclusive city is not reflected in the reality of its laws, politics and media.

Indeed, in terms of legal rights, Sydney and the state of NSW now have the worst LGBTI laws of any jurisdiction in Australia. If that sounds like a hyperbolic claim, consider this:

For lesbians and gay men, the NSW Anti-Discrimination Act 1977 (ADA) offers the weakest protections against discrimination of any state and territory anti-discrimination law.

That is because the exceptions in section 56(d) – allowing religious organisations to lawfully discriminate against us – are the equal-broadest in the country (and a long way behind the best practice laws in Tasmania), while NSW is the only place to allow all private schools, religious and non-religious alike, to discriminate against students, teachers and other staff on the basis of their sexual orientation and gender identity.

For bisexuals, the situation is even worse. The ADA is the only anti-discrimination law in Australia that does not actually protect bisexual people against discrimination. At all. 

For trans and gender diverse people, NSW’s laws – covering multiple areas of life – are also the worst in the country.

The ADA only protects transgender people with binary gender identities (‘male-to-female’ or ‘female-to-male’), while excluding people who identify as non-binary (although, sadly, it is not the only jurisdiction to do so: Victoria, Queensland, Western Australia, South Australia and the Northern Territory also offer limited protection). 

As with lesbians and gay men, however, the ADA allows all private schools, even those that are non-religious, to discriminate against transgender students, teachers and other staff.

NSW also has the equal-worst framework for trans and gender diverse people to access birth certificates reflecting their gender identity: alongside Queensland, it still requires surgery in order to obtain new identity documents. Unlike Queensland, however, there has been zero indication the NSW Government is interested in removing this unjust and unnecessary hurdle.[ii]

Intersex people might be the only LGBTI group in respect of which NSW does not have the outright worst laws in Australia. Sadly, that’s more due of the lack of progress in the majority of states and territories, than it is because of any particular progress on intersex law reform here.

The ADA does not provide anti-discrimination protection on the basis of ‘intersex status’[iii] or ‘sex characteristics’[iv] – although neither does Victoria, Queensland, Western Australia or the Northern Territory.[v]

Meanwhile, no Australian jurisdiction has prohibited the ongoing human rights abuses that are unnecessary surgeries and other involuntary medical treatments on children born with intersex variations of sex characteristics.

In encouraging news, the Tasmanian Law Reform Institute recommended criminalisation of non-consensual, deferrable medical interventions on children in June 2020, while the Australian Human Rights Commission is currently also engaged in a project on this issue. However, as far as I am aware, there is no equivalent work being undertaken by the NSW Government.

Finally, Queensland recently introduced prohibitions on sexual orientation and gender identity conversion practices (albeit only within healthcare settings), while the ACT passed more comprehensive reforms which targeted conversion practices more broadly, including in religious environments.

Bans on gay and trans conversion practices are also seriously being considered in South Australia, Tasmania and Victoria. However, once again, there have been no signs whatsoever that the NSW Government, or Parliament, are interested in ending this psychological torture.

Overall, then, it is clear that on contemporary LGBTI law reform issues – from expanding anti-discrimination protections, enacting birth certificate reform, ending non-consensual medical interventions on intersex children, to eradicating gay and trans conversion practices – NSW is a laggard.

Sydney might be a beautiful city, but on LGBTI rights NSW is undeniably backward.

Some people might argue that the people of Sydney are more accepting of the LGBTI community than their politicians. And that may be partly true, especially in patches. However, the outcome of the 2017 same-sex marriage law postal survey contradicts that view.

NSW was the only state or territory in Australia where the Yes vote for marriage equality was lower than 60%: just 57.8% of people in NSW supported removing anti-LGBTI discrimination from the Marriage Act 1961(Cth). The next lowest state was Queensland, but its result was nearly 3 points higher (60.7%).

More damningly, only 17 electorates around Australia did not record a majority Yes vote. 12 of those were found in metropolitan Sydney,[vi] including the seven electorates with the highest No vote (reaching up to 73.9% No in Blaxland).

Based on this (admittedly context-specific) example, Sydney has the highest rates of homophobia, biphobia and transphobia in the entire country.

The history of marriage equality in Australia is just as illustrative of the corrosive impact politicians from Sydney have had on the rights of all LGBTI Australians.

The Liberal Prime Ministers who first banned marriage equality (John Howard), first proposed to hold an unnecessary, wasteful, divisive and harmful public vote on our rights (Tony Abbott),[vii] actually held that vote (Malcolm Turnbull) and paid for it (Scott Morrison, as Treasurer), were all from Sydney.

Morrison in particular is on track to be the worst Prime Minister on LGBTI issues in Australia’s history, from his ‘gender whisperer’ comments, to his broken promise to protect LGBT students against discrimination, and the proposed Commonwealth Religious Discrimination Bill which overrides, and undermines, existing LGBT anti-discrimination protections. 

It is likely no coincidence Sydney is the home of News Corp Australia, where it publishes Bernard Lane’s campaign against trans-affirming healthcare (in The Australian) and Miranda Devine’s columns targeting LGBTI-inclusive education (in the Daily Telegraph).

Perhaps the most depressing realisation of all is that, in September 2020, there is more chance things will get worse rather than better.

As we have already seen, there are no public signs the NSW Government is interested in reforming trans and gender diverse access to birth certificates, ending non-consensual medical interventions on intersex children, or banning gay and trans conversion practices.

Nor is there any current indication they will act to modernise the nation’s worst LGBTI anti-discrimination law, to include bisexuals, non-binary people and intersex people, and repeal the exceptions which allow religious organisations, and private schools, to lawfully discriminate against our community.

Even at a procedural level, the NSW Government does not have a formal LGBTI consultative mechanism, unlike the Victorian LGBTIQ Taskforce, Queensland LGBTI Roundtable, ACT LGBTIQ+ Ministerial Advisory Council, and a range of long-standing Tasmanian LGBTIQ+ Government working groups.

On the other hand, while there are no legislative proposals to improve the rights of LGBTI people currently before NSW Parliament, there are several Bills which, if passed, would set our legal rights back even further.

That includes the Mark Latham/One Nation Anti-Discrimination (Religious Freedoms and Equality) Bill 2020, that would undermine our existing, limited protections against discrimination, which the Government and Opposition nevertheless saw fit to refer to a Joint Select Committee for consideration.

And then there’s the truly awful Education Legislation Amendment (Parental Rights) Bill 2020 – also from Latham/One Nation – which not only seeks to erase trans and gender diverse students and teachers entirely from all NSW schools, but also attempts to introduce a UK ‘section 28’-style provision making life difficult for all LGBTI kids, while introducing an erroneous and stigmatising legislative definition of intersex, too.

That Bill has also been referred to a Parliamentary Committee for inquiry – with the Committee chaired by Mark Latham himself.

We are now 18 months into the Berejiklian Liberal/National Government’s term. It is time for them to step up – not just to defend LGBTI people in NSW against Mark Latham’s, and One Nation’s, attacks on our community, by rejecting outright his deeply flawed ‘religious freedom’ and anti-trans kids legislative proposals.

But also to make long-overdue progress on other important issues, including birth certificate changes, protecting intersex kids, ending conversion practices and engaging in broader anti-discrimination reforms.

As of this week, they have 30 months left until the next State election. How they use their time between now and 25 March, 2023, will determine whether NSW will continue to have the worst LGBTI laws in Australia, or at least something closer to the national average.

There is another significant event in Sydney from mid-February to early March in 2023 which is highly relevant to this conversation: World Pride will be hosted by the Sydney Gay & Lesbian Mardi Gras.

Assuming it is not cancelled because of coronavirus, large numbers of LGBTI eyes from around the globe will be focused squarely on us. The world already knows Sydney puts on a good party, Olympics, Mardi Gras or otherwise. But during World Pride they will also be looking at the State of our rights.

If the NSW Government doesn’t undertake essential, and long overdue, reforms in the next two-and-a-half years, we will be greeting our international guests by saying ‘Welcome to Sydney: Australia’s capital of homophobia, biphobia and transphobia’.

**********

Take Action

Of course, it doesn’t have to be this way. There are at least three things you can do to avoid that potential embarrassment (a good outcome) and make the lives of LGBTI people in NSW better on a day-to-day basis (a great one):

  1. Get involved

For too long, the burden of fighting for our rights has been borne by too few. There are a range of different organisations you can join or support to help make a difference, including:

And there are plenty of others too (including Union Pride, as well as LGBTI advocacy groups within political parties). 

2. Defend our community against attacks

As the above article (hopefully) makes clear, LGBTI rights in NSW are currently under attack by Mark Latham.

You can help the campaign against One Nation’s Education Legislation Amendment (Parental Rights) Bill, aka the anti-trans kids Bill, in the following ways:

  • Sign the Gender Centre, just.equal and AllOut petition 
  • Sign Sam Guerra’s individual Change.Org petition (which is already over 80,000 signatures), and
  • Use Equality Australia’s platform to write to the Premier, Deputy Premier, Education Minister, Opposition Leader and Education Minister here.

You can also find out about, and take action against, the One Nation Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020 on the Equality Australia website here.

3. Support campaigns for positive change

A lot of our time, at both NSW and Commonwealth level, is currently being spent fighting against proposals that would take our rights backward. That is necessary and important work – but we won’t achieve progress without campaigns which seek to make our existing laws better.

Whether it is anti-discrimination law reform, improving birth certificate access, ending non-consensual medical interventions on intersex children, or banning gay and trans conversion practices – or a wide range of other important LGBTI issues – find a campaign and help drive it forward.

Positive change doesn’t happen in a vacuum, it happens when we use our voice.

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] I should clarify here that this post is about the small ‘c’ city of Sydney (meaning the large metropolitan area of 5 million people), and not the capital ‘C’ City of Sydney Council, which is largely progressive.

[ii] Disappointingly, the Queensland Government has failed to make progress on birth certificate reform since its 2018 Discussion Paper, and, as far as I am aware, have not promised to take action on this issue even if they are re-elected on 31 October.

[iii] Which is a protected attribute in both the Sex Discrimination Act 1984 (Cth) and Equal Opportunity Act 1984 (SA).

[iv] Which is the preferred protected attribute for intersex advocates, as per the March 2017 Darlington Statement, and was recently included in the Discrimination Act 1991 (ACT), while the Tasmanian Anti-Discrimination Act 1998 covers ‘intersex variations of sex characteristics’.

[v] ‘Intersex status’ was included in the 2018 amendments to the Crimes Act 1900 (NSW), which prohibited ‘public threats of violence on grounds of race, religion, sexual orientation, gender identity or intersex or HIV/AIDS status’, although to date this legislation has still not been used.

[vi] Of the other five, three were in regional Queensland, and two were in suburban Melbourne. Zero electorates in Western Australia, South Australia, Tasmania, the ACT and the Northern Territory voted No.

[vii] Tony Abbott’s decision, as Opposition Leader, to deny Coalition MPs and Senators a conscience vote also cruelled any chance of Stephen Jones’ 2012 marriage equality legislation being passed.

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

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

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

New South Wales

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

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

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

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

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

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

Queensland

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

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

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

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

Western Australia

The situation is only slightly better in the nation’s West, where section 14 the Gender Reassignment Act 2000 allows people to apply for gender recognition certificates where that person ‘has undergone a reassignment procedure’. Section 3 defines ‘reassignment procedure’ as:

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

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

These issues were examined in the Law Reform Commission of Western Australia’s 2018 Report: Review of Western Australian legislation in relation to the registration or change of a person’s sex and/or gender and status relating to sex characteristics, which recommended that applications for change of gender involve a simple administrative process, including a statutory declaration, with no requirement for surgical or other medical treatment.

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

South Australia, Australian Capital Territory and Northern Territory

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

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

Section 29L of South Australia’s Births, Deaths and Marriages Registration Act 1996 provides that ‘if the Registrar is satisfied that the applicant has undertaken a sufficient amount of appropriate clinical treatment in relation to their sex or gender identity, the Registrar may make an entry about the change of the person’s sex or gender identity in the Register…’, with section 29H clarifying that ‘clinical treatment need not involve invasive medical treatment (and may include or be constituted by counselling).’

Likewise, section 24 of the Australian Capital Territory’s Births, Deaths and Marriages Registration 1997 provides that a person applying to have the register amended to reflect a change of sex must have ‘received appropriate clinical treatment for alteration of the person’s sex’. Clinical treatment is not further defined, meaning it does not explicitly require surgical intervention.

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

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

Victoria

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

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

However, there is one requirement which fails the principle of complete ‘self-identification’. That’s because section 30A of the Victorian Births, Deaths and Marriages Registration Act 1996 requires adults to submit a ‘supporting statement’ made by a person who is aged 18 years or over and who has known the applicant for at least 12 months and state that the person making the supporting statement:

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

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

Screen Shot 2020-05-02 at 8.08.02 am

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

Tasmania

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

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

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

**********

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

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

Identity, not Surgery

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

 

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

 

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

 

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

 

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

 

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

 

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

 

NSW

 

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

 

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

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

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

 

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

 

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

 

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

 

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

 

Victoria

 

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

 

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

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

 

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

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

 

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

 

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

 

Queensland

 

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

 

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

 

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

 

However, when the Queensland Government ended forced trans divorce in early 2018, they indicated they were also actively considering further reforms to identity documentation for trans and gender diverse people. And they supported those statements by undertaking a public consultation process looking at ‘Registering Life Events’ (see my submission to that discussion paper here), which included discussion of removing surgical pre-requisites.

 

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

 

Western Australia

 

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

 

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

 

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

South Australia

 

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

 

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

 

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

 

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

 

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

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

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

 

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

 

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

 

Tasmania

 

Tasmania has – at least in the past two decades – led the way on LGBT law reform within Australia. And, following the passage of the Justice Related Legislation (Marriage Amendment) Act 2019, it now does so again on access to birth certificates and other identity documentation for trans and gender diverse Tasmanians.

 

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

 

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

 

ACT

 

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

 

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

 

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

 

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

 

NT

 

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

 

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

 

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

 

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

 

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

 

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

 

**********

 

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

 

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

 

28256

 

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

Ending Forced Trans Divorce: Mission Accomplished

It is now 18 months since the passage of legislation that finally allowed lesbian, gay, bisexual, transgender and intersex people the right to marry under Australian law.

 

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

 

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

 

At the end of this 12-month period, on 9 December 2018, the existing exemption under sub-section 40(5) the Sex Discrimination Act 1984 was repealed:

 

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

 

So how did the states and territories respond?

 

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

 

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

 

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

 

There are four other jurisdictions that passed legislation within the 12 month time-frame granted to repeal forced trans divorce:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

28256

 

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

Submission re Queensland Registering Life Events Discussion Paper

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

 

BDM Act Review Team

PO Box 15188

City East, Brisbane QLD 4002

bdmlegislativereview@justice.qld.gov.au

 

Wednesday 18 April 2018

 

To the BDM Act Review Team

 

Submission re Registering Life Events Discussion Paper

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Additional Comments

 

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

 

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

and

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

 

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

 

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

 

Sincerely

Alastair Lawrie

 

Palaszczuk

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

 

Footnotes:

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

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

[iii] Defined in the Act as:

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

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

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

Victoria’s Births, Deaths and Marriages Registration Amendment Bill 2016

Update: 14 January 2017

 

Unfortunately, this necessary and important legislation was voted down by the Victorian Legislative Council on December 6 2016.

 

As reported by SBS here (‘Gender change voted down in Vic parly’), the Victorian Liberal and National Parties combined with cross-bench conservative MLCs to reject the Births, Deaths and Marriages Registration Amendment Bill 2016.

 

In the process, Victorian Coalition MPs have ensured that the process for transgender people to amend their birth certificates remains onerous, and continues to exclude a large number of trans and gender diverse people completely, especially those who identify as non-binary and gender-fluid.

 

The decision to reject this vital reform was shameful, and will hopefully be remembered by all LGBTI Victorians when they go to the polls next, in November 2018.

 

Original post:

 

The Andrews Labor Government, elected in November 2014, has repeatedly demonstrated its commitment to the rights of lesbian, gay, bisexual, transgender and intersex (LGBTI) Victorians in its first two years in office. This includes:

  • Creating the nation’s first Minister for Equality (Martin Foley)
  • Appointing a Gender and Sexuality Commissioner (Rowena Allen) and establishing an LGBTI Taskforce
  • Legalising adoption by same-sex couples
  • Apologising to people unjustly convicted for historical homosexual offences
  • Committing funds to establish a Pride Centre, and
  • Defending the Safe Schools program from Commonwealth Government attacks.

It is currently pursuing two further important items of law reform. The first of these is the Births, Deaths and Marriages Registration Amendment Bill 2016 (the second, the Equal Opportunity Amendment (Religious Exceptions) Bill 2016, will be the subject of a later post).

As noted by Attorney-General Martin Pakula in the Bill’s second reading speech, “[t]he bill implements the government’s pre-election commitment to remove barriers for trans, gender diverse and intersex Victorians to apply for new birth certificates.”

Specifically, the Births, Deaths and Marriages Registration Amendment Bill 2016 will:

  • Remove the requirement for trans and gender diverse people to undergo gender affirmation surgery in order to alter their official records, including birth certificates
  • Remove the requirement for trans and gender diverse people to be unmarried in order to alter their records (thus ending the policy of ‘forced trans divorce’)
  • Simplify the process for adults to alter their records – with the new system based on a statutory declaration by the individual, supported by a statement from another adult who has known them for more than 12 months
  • Allow children to alter their records for the first time (with the application made by parent(s) or guardian(s), and supported by a statement from a doctor or registered psychologist that the alteration is in the child’s interest), and
  • Allow individuals to nominate a descriptor of their choice – ‘male’, ‘female’ or any other term chosen by the applicant (provided it is not obscene or offensive) – to recognise their trans, gender diverse or non-binary identity.

Writing as a cisgender gay man, these reforms seem very straightforward – allowing trans and gender diverse people to access documentation that reflects their identity, removing inappropriate and unjust barriers (such as the requirement to undergo gender affirmation surgery – something many trans people will never do – and abolishing the horrific practice of forced trans divorce).

The reforms also appear to be widely supported by trans, gender diverse and intersex advocates, with Transgender Victoria’s Chair Brenda Appleton noting that “[t]his is a profoundly important reform for our community, as many of us are currently prevented from changing the most basic form of documentation to reflect our true identity.”[i]

Intersex advocate Gina Wilson also welcomed the changes in the same media release: “[f]or the Victorian Parliament to say ‘we give you here a document that acknowledges the truth of your life’ would be life changing… It is very difficult to explain to someone who has never struggled to fit in the way Intersex people often have to how much joy and relief that would bring.”

Consequently, one would hope such legislation, respecting the autonomy of people to nominate their own gender identity or sex, rather than having one imposed upon them (by the medical profession, and ultimately by the Government), would be uncontroversial.

Alas, those hopes were forlorn. The Bill has been opposed by the ‘unholy’ triumvirate of contemporary Australian politics: the right-wing of the Coalition, the Australian Christian Lobby, and News Corp (in this case, via the Herald Sun).

The Bill has already been debated, and voted on, in the Legislative Assembly, where it only passed by a margin of 45 votes to 35. The debate leading up to this vote saw a number of ill-informed and, frankly, intolerant, contributions by some members of the Liberal and National Parties, perhaps none ‘less-informed’ than that by the Member for Ripon, Louise Staley. Her speech included the following ignorant observations:

“I oppose this bill. This bill goes too far. This government is in thrall to highly contested gender theories. This is the sort of post-modernist mumbo jumbo we have come to expect from the Andrews Labor Government…

“I ask the house to reflect on what we are doing when we allow a man – and the statistics show most transgender people are born male – who has male chromosomes and who naturally has the right to enjoy the privileges we as a society still give to men, such as earning more and dominating business and politics, to choose to be recognised by the state as a woman because he feels like a sex he biologically is not and cannot by definition actually ever experience. I cannot help feel that such men are engaged in a radical form of mansplaining, telling women what really makes one a woman…

“The feminist in me objects strongly to a man changing his birth certificate to female because he feels enough of a woman to identify as one but not enough to take the step of permanently doing so…

“There are also women-only spaces, services, shelters et cetera that explicitly exclude men for feminist or safety reasons. Allowing preoperative transgender people to join these bodies – especially, I may add, to make political points or to pursue activism – will at some point cause great distress to all involved.”

Many of the worst aspects of transphobia – deliberately misgendering trans people, invalidating non-binary identities, creating panic about trans women accessing women’s spaces – are present and accounted for in Ms Staley’s offensive and outrageous speech. If you want to read the full catastrophe, you can find it here (but make sure you don’t eat immediately beforehand).

160930-louise-staley

Transphobic Victorian Liberal MLA Louise Staley

Of course, right-wing Liberal and National Party MPs are not the only ones capable of extreme transphobia. As expected, Lyle Shelton and the Australian Christian Lobby have lived down to their already-low public reputation by inciting bathroom panic as part of their campaign against the Bill. In a web post titled “Why is This Government Putting Women at Risk?”[ii] (yes, seriously), they wrote:

“Australian Christian Lobby Managing Director Lyle Shelton said radical changes that would allow men identifying as women to enter women’s private spaces such as toilets and change rooms needed wider discussion…

“Mr Shelton said Mr Andrews [sic] new laws would make private space unsafe for women. “Why should a man identifying as a woman be allowed into a woman’s gym or a domestic violence shelter? Why should biological males identifying as women be allowed into women’s public toilets and shower facilities?””

It seems the ACL is intent on importing the worst kind of hate-speech from its international counterparts, and especially from anti-LGBTI groups in the United States, whipping up fear against trans women and vilifying people on the basis of their gender identity[iii].

And of course, where right-wing Liberals and Nationals and the ACL ‘lead’ (into the gutter), News Corp papers usually follow – with the Herald Sun backing the transphobic campaign against what should, on its merits, be uncontentious legislation.

In an appalling article titled “Laws allowing Victorians to choose sex on birth certificate raise safety concerns,”[iv] Rita Panahi wrote:

“New laws allowing Victorians to choose their sex on a birth certificate will compromise the safety of female-only spaces, including single-sex schools  changing rooms, domestic violence shelters and even prisons, according to a women’s rights group…

“The proposed changes, which passed the Lower House earlier this month, could see boys and men identifying as female – but with no intention of undergoing gender reassignment or clinical treatment – being allowed access to areas reserved for girls and women.”

Umm, Rita, that would be because they are girls and women, and therefore have the right to access ‘areas reserved for girls and women’. And, just like Ms Staley and Mr Shelton before you, you should already be aware that deliberating misgendering trans people in this way is extremely offensive.

The Bill that has prompted this backlash is expected to be debated in the Legislative Council in the week beginning Tuesday 11 October. Given that the ALP does not have a majority in the Upper House (even with the addition of Greens and Sex Party MLCs), and the ongoing scare campaign against its provisions, it is now uncertain whether the Births, Deaths and Marriages Registration Amendment Bill 2016 will in fact be passed.

As a result, I have sent the below short email to all Members of the Victorian Legislative Council, calling on them to support the Bill. If you have time between now and October 10th, I encourage you to do the same. You can find the contact list for MLCs here.

**********

Friday 30 September 2016

Dear Member of the Victorian Legislative Assembly

Please Support the Births, Deaths and Marriages Registration Amendment Bill 2016

I am writing to you to urge you to support the Births, Deaths and Marriages Registration Amendment Bill 2016 when it is debated and voted upon in October.

This legislation is important because it will remove the barriers that exist for trans, gender diverse and intersex people in terms of accessing new birth certificates.

Specifically, I understand that the Bill will:

  • Remove the requirement for trans and gender diverse people to undergo gender affirmation surgery in order to alter their official records, including birth certificates
  • Remove the requirement for trans and gender diverse people to be unmarried in order to alter their records (thus ending the policy of ‘forced trans divorce’)
  • Simplify the process for adults to alter their records – with the new system based on a statutory declaration by the individual, supported by a statement from another adult who has known them for more than 12 months
  • Allow children to alter their records for the first time (with the application made by parent(s) or guardian(s), and supported by a statement from a doctor or registered psychologist that the alteration is in the child’s interest), and
  • Allow individuals to nominate a descriptor of their choice – ‘male’, ‘female’ or any other term chosen by the applicant (provided it is not obscene or offensive) – to recognise their trans, gender diverse or non-binary identity.

These appear to be straightforward reforms that respect the autonomy of people to nominate their own gender identity or sex, rather than having one imposed upon them by clinicians or the Government. I note they are also supported by trans, gender diverse and intersex advocates.

As highlighted by Jo Hirst, these reforms “won’t mean much to most Victorians, but to an estimated 4 per cent of the population it means everything. It’s certainly significant for my little boy, who’s transgender. He recently told me it would mean more to him than food.”[v]

Hirst then further observes that “[t]o have their birth certificate reflect their true identity would empower young transgender people to fully participate in all the educational, social, sporting and job opportunities our society has to offer. Most importantly it would give them a sense of validation that would help them feel whole.”

I therefore call on you to support the Births, Deaths and Marriages Registration Amendment Bill 2016 to better recognise the human rights of trans, gender diverse and intersex Victorians, by simplifying the process by which they can ensure official records reflect their gender identity or sex.

If you have any questions or would like additional information, please contact me at the details provided below.

Sincerely,

Alastair Lawrie

**********

Footnotes:

[i] Media Release, Birth certificate reforms will deliver respect and recognition for trans, gender diverse and intersex Victorians, 12 September 2016.

[ii] Australian Christian Lobby, Why is this Government Putting Women at Risk?, 29 August 2016.

[iii] Noting of course that anti-LGBTI vilification is not prohibited currently under either Victorian or Commonwealth law.

[iv] Herald Sun, Laws allowing Victorians to choose sex on birth certificate raise safety concerns, 27 September 2016.

[v] Sydney Morning Herald, Surgical sterilisation shouldn’t be the cost of correcting a transgender person’s birth certificate, 15 September 2016.

Submission to Alex Greenwich Discussion Paper re Removing Surgical Requirement for Changes to Birth Certificate

Alex Greenwich MP

58 Oxford St

PADDINGTON NSW 2021

sydney@parliament.nsw.gov.au

Friday 21 August 2015

Dear Mr Greenwich

SUBMISSION ON DISCUSSION PAPER RE REMOVING SURGICAL REQUIREMENT FOR CHANGES TO BIRTH CERTIFICATE

Thank you for the opportunity to provide this short submission in response to the above-mentioned Discussion Paper, and for highlighting what is clearly an important issue for transgender people in NSW.

I should begin by noting that I am writing this from the perspective of a cisgender gay man and that, if this submission is contrary to the views expressed by trans* individuals and organisations, then those submissions should obviously be preferred.

Nevertheless, as a long-term advocate and activist within the lesbian, gay, bisexual, transgender and intersex (LGBTI) community, I find it hard to disagree with the premise of the Discussion Paper which is that trans* people should not be required to undergo irreversible sex affirmation surgical procedures before being able to apply to amend their birth certificate.

Similarly, I can see no valid reason why the approach which has been adopted by Ireland – and which is described in the Discussion Paper as ‘world’s best practice’ – should not be adopted here.

This approach – allowing transgender individuals to legally change their birth certificate through a statutory declaration process without any need for medical documentation – has a number of significant advantages.

These include:

  • Recognising the diversity of experience within the transgender community
  • Respecting the personal autonomy of people to identify themselves and
  • Removing the unnecessary ‘medicalisation’ of this process.

Above all, adopting the Irish approach would make it easier for trans* people to obtain documentation which reflects their gender identity, which is a positive outcome in and of itself.

I look forward to seeing the Final Report of this consultation later in 2015, and to the ongoing work of yourself and the NSW Cross-Party LGBTI Working Group on a wide range of other, related issues, including (but not limited to):

  • The abolition of incredibly unjust ‘forced trans* divorce’ laws
  • The removal of exceptions to the NSW Anti-Discrimination Act 1977 which allow private schools to discriminate against trans* students and teachers[i] and
  • The abolition of the unjustifiably broad exceptions granted to religious organisations in sub-section 56(d)[ii] of the same Act.

Thank you in advance for taking this submission into account. Please contact me at the details provided below if you would like clarification or further information about any aspect of this submission.

Sincerely,

Alastair Lawrie

[i] Section 38K of the NSW Anti-Discrimination Act 1977, which covers education, provides that “[n]othing in this section applies to or in respect of private educational authorities”.

[ii] “Nothing in this Act affects: … (d) any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion.”

State Member for Sydney Alex Greenwich (source NSW Parliament website).

State Member for Sydney Alex Greenwich (source: NSW Parliament website).