Sydney World Pride is now just 17 months away. With the official Opening Ceremony scheduled for 24 February 2023, it promises to be one of the largest LGBTI celebrations in a post-pandemic world.
Unfortunately, when it comes to LGBTI law reform, there is very little reason to celebrate.
The NSW Anti-Discrimination Act is the worst LGBTI anti-discrimination law in the country. It’s the only one that fails to protect bisexuals, and the only one allowing all private schools, religious and non-religious alike, to discriminate against LGBT students. The ADA also excludes nonbinary people, and people with innate variations of sex characteristics.
While Queensland, the ACT and Victoria have already prohibited gay and trans conversion practices (to varying extents), and other states consider this vital reform, there’s no clear commitment for NSW to do the same.
Nor has the NSW Government promised to prohibit what are the worst of all human rights abuses against the LGBTI community: coercive surgeries and other involuntary medical treatments on intersex children.
In this context, it’s depressing to realise the next step on LGBTI rights here is likely to be a great leap backwards.
That includes support for a domestic version of the UK’s infamous ‘section 28’, which traumatised a generation of LGBT students there before being abandoned in 2003.
By threatening teachers with having their accreditation revoked for mentioning anything ‘political or ideological’ in relation to gender or sexuality – which could be as simple as telling struggling gay kids that who they are is perfectly okay – it will drive most teachers to say nothing at all, creating the perfect conditions for ignorance and shame to thrive.
Even worse are the proposed changes to Bulletin 55: Transgender Students in Schools, which would (among other things):
Prohibit students from confidentially coming out as transgender to their teachers or school counsellors
Effectively ban transgender students from being able to access toilets or changerooms matching their gender identity, and
Out students who transition while at school to the parents of every other student in their year group.
These anti-trans rules are just the tip of the iceberg. This Bill, and associated Committee Report, are truly a Titanic-size assault on the rights of trans and gender diverse kids in NSW.
In policing children’s names and pronouns, their ability to play sport and even go to the bathroom, these are really Texas Republican Party-level interventions in the daily lives of people whose lives don’t matter to them.
The Government now has six months to respond (coincidentally, the deadline is the Monday after next year’s Mardi Gras). With more Coalition MPs so far publicly expressing support for the Bill than opposing it, the starting assumption has to be they are more likely to implement these changes than reject them.
And if they do? The biggest victims will be a generation of trans and nonbinary kids whose own Government will be actively seeking to erase their very existence, closely followed by other LGBT students who will be offered silence rather than support from their schools.
As for World Pride, well, it seems highly likely there would be a global boycott – one I would fully endorse. To do otherwise would be to invite the world to come and dance over the bodies of trans kids, killed by the transphobia of NSW Parliamentarians.
Even if it ultimately does not pass, the debate since August 2020 has already caused significant harm to trans kids in NSW, and to the families who love them.
If we cannot keep trans kids safe, if we cannot protect LGBT students in private schools against discrimination, if we cannot stop the psychological torture from gay and trans conversion practices, if we cannot prevent the physical torture of intersex children – if we can’t defend the most vulnerable among us – tell me again what exactly we would be celebrating at Sydney World Pride?
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In August 2020, NSW One Nation MLC Mark Latham introduced the Education Legislation Amendment (Parental Rights) Bill 2020. As I wrote at the time, this Bill is the worst legislative attack on LGBTI rights in Australia this century.
In particular, Latham’s Bill seeks to erase trans and gender diverse students from classrooms and schoolyards across NSW. It would also establish a UK ‘section 28’-style prohibition on positive references to anything at all to do with LGBT people, as well as introducing an offensive and stigmatising definition of intersex variations of sex characteristics.
This Bill should have been immediately rejected by the Berejiklian Liberal/National Government and (at the time McKay) Labor Opposition. Instead, Coalition and Labor Members of the Legislative Council voted to refer the Bill for inquiry by the Portfolio Committee No. 3 – Education, which just so happens to be chaired by Mark Latham himself, thus creating a serious and ongoing conflict of interest.
Even if there might be circumstances in which an MLC should be given authority to lead an inquiry into their own legislation (and, readers, I can’t think of any right now), a chair in this situation should be acutely aware of the responsibilities of their position and their obligation to act impartially and respectfully.
Unfortunately, as demonstrated in the 11 months since then, Mark Latham is not such a chair. Indeed, Mark Latham’s Inquiry into Mark Latham’s anti-trans kids Bill has been as unbalanced and transphobic as his legislation is, as evidenced in the following five areas:
Lack of trans witnesses
Latham’s inquiry conducted hearings on April 20 and 21, 2021. Across those two days, 42 witnesses were scheduled to give evidence. Do you know how many were trans or nonbinary children – that is, the people who stand to lose the most if this legislation passes?
In fact, there was only one identified trans witness out of 42 (the amazing Teddy Cook, from ACON), plus one parent of a trans child. As far as I am aware, that means 40 witnesses out of the 42 scheduled to appear (or 95% of witnesses) were neither trans themselves nor the parent of a trans child.
This imbalance alone is enough to dismiss the validity of the entire inquiry.
It’s not like there weren’t other trans individuals and organisations ready and willing to give evidence either. As I understand it, the Gender Centre – described in its submission as ‘NSW’s leading trans led organisation, providing 95% of all trans specific services in the state’ that ‘support over 500 NSW transgender and gender diverse families generally’ – were not invited to appear.
The selection of non-trans witnesses was biased, too. Of the religious organisations invited to give evidence, only faith groups that expressed support for the Bill were given a guernsey.
As noted by Greens MLC David Shoebridge during the hearings: ‘Unfortunately, the Coalition and the Chair determined not to allow any witnesses to appear from the parts of the Christian faith who oppose the bill.’ (Hearing Transcript, 20 April, page 8).
This meant religious organisations that expressed their opposition to the Bill through their submissions – including the Pitt St Uniting Church, and Uniting Church LGBTIQ Network – did not receive an invitation to appear.
In my view, the lack of trans witnesses, and biased selection of others, rendered this inquiry process illegitimate from the outset.
2. Disrespectful treatment of submitters and witnesses
It wasn’t just the selection of witnesses that was unbalanced, but also how organisations that made submissions, or appeared as witnesses, were (mis)treated – especially by the chair.
Take, for example, the Catholic Education Diocese of Parramatta, who made a submission to the inquiry in which they expressed their opposition to Latham’s Bill.
For this ‘sin’, not only were they not invited, but they were attacked in their absence.
When Shoebridge noted that ‘The Chair and the Coalition would not allow them to come. They voted on majority to prevent them coming’, Latham ultimately responded with ‘Well, there has to be a degree of sanity here.’ (Hearing Transcript, 21 April, page 36).
Imagine, as the Chair of an inquiry, thinking it appropriate to imply an organisation that made a submission to that inquiry ‘lacked sanity’.
The attack worsened from there, with Latham asking the witness from Catholic Schools NSW (who did oppose the Bill and were not coincidentally offered an invitation) to provide data about enrolment and academic performance of schools in the Parramatta Diocese specifically:
‘My understanding is that a number of the Parramatta parents are none too happy about this position and that the Parramatta diocese enrolment share and academic results have collapsed in recent times because of the so-called progressive approach to education. Do you have some data on that that you can furnish to the Committee?’ (Hearing Transcript, 21 April, page 36).
In my opinion, there can be no justification for asking questions which suggest a vendetta against religious bodies which have the temerity to take a different policy view to yours.
Nor was this the only example of Latham’s disrespect to submitters or witnesses. Later that day he made a series of what can only be described as unprofessional remarks in response to the evidence of Georgia Burke, representing the LGBTI Subcommittee of Australian Lawyers for Human Rights.
Burke: ‘… The best interests of the children are entirely disregarded with the primacy of parents put to the forefront.’
Latham: ‘Jesus, seriously.’
Burke: ‘It is interesting to reflect on the comments of the special rapporteur to which we refer in our submission.’
Latham: ‘The best interests of the children are disregarded when the parents are put to the forefront?’
Shoebridge: ‘Carry on.’
[Labor MLC Anthony] D’Adam: ‘Carry on, they are just being rude.’
Latham: ‘That is unbelievable.’
Burke: ‘His report of 2010 – and I do have a copy with me if it assists the Committee for me to table that report.’
Latham: ‘Jesus Christ.’ (Hearing Transcript, 21 April, page 63).
[As an aside, it might be interesting to know what the religious fundamentalists who support Latham’s similarly-extreme ‘Religious Freedom’ Bill think about his blasphemy?]
As chair, Latham also accused witnesses of either ‘fabrication’ (saying to Ghassan Kassisieh of Equality Australia: ‘That is not what the Bill says. That is just a fabrication, I am sorry.’ Hearing Transcript, 20 April, page 63), or ‘making something up’ (to Jared Wilk of the NSW Council for Civil Liberties: ‘You see, that is the problem. You are making something up about the bill that is not actually true.’ Hearing Transcript, 21 April, page 65).
This is not the behaviour of somebody who should be in charge of anything, let alone an inquiry into legislation which carries the very real potential to undermine the human rights of some of the most vulnerable members of the community.
3. Allowing irrelevant evidence
The potential impact of Latham’s anti-trans kids Bill is incredibly broad – applying not just to classroom teaching, but also to ‘instruction, counselling and advice’ provided to students by principals, school counsellors, non-teaching staff, contractors, advisors and consultants, non-school based staff, contractors, advisors and consultants, and even volunteers (proposed new section 17C of the Education Act 1990).
However, one thing it doesn’t actually apply to is school sport. Despite this, Latham’s inquiry invited Katherine Deves from ‘Save Women’s Sport Australasia’ to address the Committee, where they were given free rein to make comments like:
‘It requires them [women and girls] to forego their right to compete on a level playing field in sport because fair competition is destroyed, athletic opportunities are lost and players’ safety is completely disregarded. On 1 December last year a senior bureaucrat in the NSW Sports Minister’s office told me that a woman would have to be killed before gender inclusion sports policies would be withdrawn.’ (Hearing Transcript, 21 April, page 24).
‘We believe that the female sports category should be for female-born females only. We need to start asking boys and men to be more accommodating of non-gender-conforming boys and accommodate them in their sports instead of expecting the girls and the women, to their own detriment, to accept them into their sports. We are getting stories now of boys competing in girls’ sports and winning and taking sports on the podium and taking sports on the team and girls being harmed.’ (Hearing Transcript, 21 April, page 27).[i]
Leaving to one side the lack of evidence to substantiate these claims, this testimony had nothing whatsoever to do with the Bill – a point which Shoebridge raised: ‘Point of order: There is not a single part of the terms of reference of this inquiry that relates to sport and I cannot see how either the opening submission or this question relates to the terms of reference.’
About which Latham eventually ruled: ‘I do not think censorship here is appropriate. The witness can answer the question.’ (Hearing Transcript, 21 April, page 27).
Except ensuring witnesses at least vaguely stick to the terms of reference of the inquiry is not censorship, but one of the core responsibilities of a Committee Chair, something Latham spectacularly failed to fulfil here.
Perhaps unsurprisingly, women’s sport was not the only unrelated matter that was allowed to be raised – Latham also provided ample space for witnesses to talk about access to bathrooms, something that is also unaffected by his legislation.
For example, Terri Kelleher of the Australian Family Association was given the opportunity to make the following comments:
‘Why would you want to set up – because part of the instructions or guidelines for schools as a result or a flow-on from teaching gender fluidity, you know, that people are the gender they feel and it may not be their natal sex, is to allow natal males into girls’ toilets. Now, that is not saying that all males or all boys who identify as girls are going to be a threat, but it sets up a situation where that can occur. This is very serious in the light of the child-on-child sexual abuse in schools.’ (Hearing Transcript, 20 April, pages 40-41).
And then allowed to elaborate:
‘One of the risks … is the staff is to monitor the length of time in a change room. So staff are to monitor the length of time. It puts teachers in a difficult situation. Are they to be rostered outside toilets? Does there always have to be someone supervising wherever the toilets may be used, which would be throughout the day?’ (page 41).
Which led to the following exchange between MLCs sitting on the Committee:
D’Adam: ‘Point of order: We are taking evidence on a bill that has nothing to do with unisex toilets.’
D’Adam: ‘It has nothing to do with it. It is outside the terms of reference of this inquiry and I would ask the Chair to bring the witness back to-‘
[Nationals MLC Wes] Fang: ‘I have been waiting for this one. ‘Any other matter’ – it has been called on me so many times.’
Latham: ‘Yes. Related matters. I think the use of – I raised earlier on the problem of boys declaring themselves to be girls to get into the girls’ change room. That was in order and I think this is in order as well.’ (page 41)
In effect, the Chair of the inquiry ruled that ‘bathroom panic’-style testimony was in order because he himself had raised the issue of change room access, from the Chair, earlier in the day. This is the opposite of an impartial investigation.
4. Providing a platform for transphobia
As we have already seen, by allowing witnesses to talk about unrelated matters like trans participation in sport and ‘bathroom panic’ (including rhetorically linking trans access to toilets to child sexual abuse), Latham ensured his inquiry provided a platform for transphobia. Nor were these the only examples of extreme prejudice against trans and gender diverse young people over those two days.
This includes multiple witnesses suggesting that the gender identities of the majority of trans and nonbinary kids were not real but instead the product of mental illness:
‘When parents are kept in the dark about gender ideology and about what children are exposed to related to gender fluidity, they face an increased risk of harm. School officials and others do not know of, or may disregard, a child’s personal history – perhaps trauma or abuse or other diagnosed conditions, whether autism or mental health issues. They may play a role in a child’s identity concerns.’ (Mary Hasson, Hearing Transcript, 21 April, page 3).
Dianna Kenny of something called the ‘Society for Evidence-based Gender Medicine’ was permitted to make the following extraordinary – and extraordinarily offensive – claim:
‘There is a very minute number of people who are what we try to call genuinely trans, and suddenly we have seen a 4,000 per cent increase in the number of young people identifying as trans. Only a tiny fraction of that 4,000 per cent increase are going to be what we call genuinely trans. The rest of them are in the thrall of the trans lobby, and they have serious mental health issues and other things that need to be addressed.’ (Hearing Transcript, 21 April, page 33).
When asked by Labor MLC Anthony D’Adam about those people who Kenny claimed were not ‘genuinely transgender’ (‘Those who are not in that category – the others – you are saying that there is something wrong with them, that they are sick.’), Kenny replied:
‘It is a manifestation of serious mental health issues, yes. I work clinically with those people. I see them at close quarters. I work intensively with the families and with the young people themselves. The evidence is increasing exponentially that those young people have serious health issues that need to be addressed…’ (Hearing Transcript, 21 April, pages 33-34).[ii]
From my perspective, this does not read like a reasonable debate of issues related to the Bill but instead seems to be a free kick for witnesses to make derogatory comments about the mental health and wellbeing of trans and nonbinary kids.
Of course, being a parliamentary hearing about trans rights in 2021, a range of other transphobic tropes – from ‘desisters’[iii]/’de-transitioners’[iv] to ‘rapid onset gender dysphoria’[v] and ‘social contagion’[vi] – made predictable appearances (and, just as predictably, none were based on high-quality, independently-verified research, because, well, it doesn’t exist).
Mark Sneddon of the Institute of Civil Society even gravely warned that: ‘What we are trying to do – or what I understand this bill is trying to do – is to reduce the social contagion influence putting more people onto the conveyor belt of gender transition.’ (Hearing Transcript, 20 April, page 42).
A quote which, perhaps unintentionally, goes to the core of the whole debate. Through their evidence, these witnesses all appear to be implying that being trans or nonbinary is itself a negative thing, and should be avoided wherever possible, including through legislation which prevents students from even hearing that gender diversity exists.
Whereas the rest of us understand that a) trans and nonbinary people are a part of the natural spectrum of human gender identity (and indeed always have been), b) trans and nonbinary kids are awesome, and c) there are really two conveyor belts – one which lets trans and nonbinary kids be themselves and delivers them to health and happiness, and one which tells trans and nonbinary kids that they are wrong and should not exist, and abandons them to darkness and depression.
That is really what Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 is all about – keeping trans and nonbinary students in the dark. About who they are. And that who they are is okay. More than okay. Beautiful.
Latham’s legislation is deeply transphobic. Which means it is no surprise that so was the evidence of many of the witnesses appearing at his inquiry. And that includes Latham himself, who even deliberately deadnamed and misgendered a prominent transgender Australian. (Hearing Transcript, 20 April, page 48).
5. Giving evidence from the chair
The fifth and final way Latham’s inquiry was unbalanced is not directly linked to trans and gender diverse children, but nevertheless goes to how ‘un-parliamentary’ his behaviour was – and that was his frequent attempts to give evidence from the chair.
For example, after raising the (unverified) story of a student whose school counsellor supported their social transition against the wishes of their parents, he was asked by Shoebridge ‘Is that in evidence?’ and by D’Adam: ‘Point of order: Is the chair giving evidence?’ To which Latham replied:
‘That is in evidence – and did not tell the family. So, Jack has asked me a question. I have given you a brief summary and will be presenting more of that evidence as the inquiry unfolds…’ (emphasis added, Hearing Transcript, 20 April, pages 24-25).[vii]
Perhaps the most extreme example came when Latham attempted to ask Ghassan Kassisieh of Equality Australia about a range of non-LGBTI issues, before making unsubstantiated claims about climate change, leading not just the Greens’ David Shoebridge but even the Nationals’ Wes Fang to suggest Latham should not be doing so as chair:
Latham: ‘Climate change – that while there is evidence of warming, it is not at some of the alarmist levels that have been projected. Sea levels are not rising and Tim Flannery was wrong about his predictions that our dams in western Sydney would never fill again.’
Shoebridge: ‘Point of order: Simply making these unfounded, biased assertions from the chair on matters unrelated to the terms of reference of this inquiry is not of assistance and, in fact, it does not fit with any of the terms of reference of this inquiry.’
Fang: ‘To the point of order-‘
Latham: ‘It fits in the submission. It is the witness’s submission – wanting to know the other side of the story. I am seeking a response about the other side of the story.’
Shoebridge: ‘Call me old-fashioned but I was looking at the terms of reference of the inquiry.’
Fang: ‘To the point of order: I actually support Mr Shoebridge here. Chair, you should not be doing it and, like Mr Shoebridge, if you are going to make these unsubstantiated comments you should do it just as a participating member, like Mr Shoebridge does often through this Committee.’ (Hearing Transcript, 20 April, page 59).
Fang nails the problem here – Mark Latham should never have been permitted to prosecute the case for his own legislation as chair of the same Committee inquiring into it.
It was an inevitable conflict of interest, and just as inevitably led to serious shortcomings of the inquiry generally, and the hearings on April 20 and 21 in particular.
From a lack of trans witnesses, and only inviting faith bodies that supported the Bill to appear while ignoring those religious organisations that opposed it.
To criticising trans-supportive faith groups in their absence, implying they ‘lacked sanity’, and acting disrespectfully and unprofessionally to other witnesses.
Allowing completely irrelevant testimony, about trans inclusion in girl’s and women’s sports, and ‘bathroom panic’, which had exactly nothing to do with the legislation being considered.
And giving voice to transphobia, including providing a platform to witnesses who dismissed the gender identity of the majority of trans and nonbinary kids as not being real while simultaneously describing them as suffering ‘serious mental health issues’.
Before using the position of chair to give his own evidence, rather than impartially examining the evidence of witnesses.
If you were being charitable, you could describe these hearings, and the overall inquiry they were a part of, as a farce.
But, after reading through all of the testimony given over those two days, including the derogatory comments about some of the most vulnerable members of our community, I am not feeling especially charitable. So I will call it as it is:
This inquiry, and the fact Mark Latham has been allowed to serve as its chair, is a sick joke. And, if you can’t tell by now, I am not amused.
The other thing that is definitely not humorous? The fact the Coalition Government, and Labor Opposition, have allowed this embarrassing debasement of NSW Parliament to drag on for almost a full year.
This legislation seeks to erase trans and nonbinary kids in schools across NSW. It will cause harm to them, and to all LGBTI children and young people.
These things have been known since it was first introduced in August 2020 – and yet neither Gladys Berejiklian, nor Jodi McKay and now Chris Minns, have done the bare minimum: to speak out against it, and declare they will not support legislation that attacks kids.
What the fuck are they waiting for?
It’s beyond time for the major parties to finally reject Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020, and Latham’s equally unbalanced and transphobic inquiry into it.
NSW Parliament can be, should be, better than this. Trans and nonbinary kids need it to be.
For LGBTI people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/
Or contact Lifeline Australia on 13 11 14.
[i] Nor was Deves the only witness allowed to raise the irrelevant issue of trans inclusion in girl’s and women’s sports, with Terri Kelleher of the Australian Family Association making the following comments:
‘What right do they [girls in schools] have to fair sporting competitions? There is a worldwide movement at the moment speaking out for women’s and girl’s rights to their own sporting competitions on the ground that natal males have serious advantages over females.’ (Hearing Transcript, April 20, page 40).
[ii] Strangely enough, despite Kenny arguing that ‘genuinely transgender’ people are extremely rare, they are also capable of ‘destroying the fabric of the nuclear family’ (‘But to withdraw parental guidance and authority in the way that the transgender lobby has implemented with children declaring themselves to be transgender is really destroying the fabric of the nuclear family.’ Hearing Transcript, 21 April, page 28), which indicates trans people must have super-powers.
[iii] John Steenhof of the Human Rights Law Alliance (Hearing Transcript, 20 April, page 36) and Mark Sneddon of the Institute for Civil Society (Hearing Transcript, 20 April, page 42).
[iv] Patrick Byrne of the National Civic Council, who suggested that transition – and not transphobia – was the cause of high rates of depression and suicide amongst transgender people: ‘Are you going to teach that there is a growing movement of de-transitioners and the risk if you go all the way down the road to full sex change surgery, a highly intrusive medical surgery, and then the longer-term risks from that. The best study on that was in Sweden, I think it was, the long-term effects of … transitioning, which had a suicide rate of 19 or 20 times the rest of the population.’ (Hearing Transcript, 20 April, page 44), and Kirralie Smith of Binary Australia (Hearing Transcript, 21 April, page 9).
[v] Dianna Kenny of the Society for Evidence-based Gender Medicine (Hearing Transcript, 21 April, page 29 and page 31).
[vi] Mary Hasson (Hearing Transcript, 21 April, page 3), and a favourite phrase of Dianna Kenny, who used it multiple times, including in this truly non-sensical quote revealing she apparently does not understand the difference between gender identity and sexual orientation:
‘Basically, what is happening is that children are being taught erroneous information and based on erroneous information these children are becoming extremely confused and as through a process of social contagion we are seeing very large increases in the number of children declaring themselves either non-binary, transgender, genderqueer, asexual, pansexual, omni-sexual, demi-boys and demi-girls.’ (Hearing Transcript, 21 April, page 25).
[vii] Another example occurred after a witness attempted to cite Latham’s Second Reading Speech for the Bill as ‘evidence’:
D’Adam: ‘Just to further elaborate, obviously we have all heard the second reading speech.’
Shoebridge: ‘It is not evidence.’
D’Adam: ‘That is not necessarily evidence of what is occurring. It is an assertion from a Member of Parliament.’
Latham: ‘Order! There is a professional development course. I will show you the course. We have got it on tape.
Shoebridge: ‘There is no order. It is not evidence.’ (Hearing Transcript, 20 April, page 37).
In 1996, Australians were watching Friends and listening to Alanis Morissette while the NSW Upper House was the site of a toxic debate about trans law reform.
In 2021, Australians are watching the Friends Reunion, can book tickets to Jagged Little Pill: The Musical and the NSW Legislative Council is once again hosting hostile discussion about the rights of its trans citizens.
It is perhaps disappointing to realise how little progress has been made in terms of pop culture and representations of transgender people – with the Friends Reunion refusing to address the recurring transphobic jokes made at the expense of Chandler’s parent, and Jagged Little Pill: The Musical erasing the gender identity of a fictional nonbinary character on its journey to Broadway.
For a start, much of the language in the two debates, a quarter of a century apart, is disturbingly similar, with both deliberate misgendering,[i] and scaremongering about trans women in sports, playing starring roles in each.
With more than a hint of hyperbole, Liberal MLC Marlene Goldsmith declared in 1996 ‘This legislation will mean the end of women’s sports as a concept, an entitlement and a right.’
In 2021, Katherine Deves, speaking on behalf of something called ‘Save Women’s Sport Australasia’, complained that ‘gender identity’ requires women and girls ‘to forego their right to compete on a level playing field in sport because fair competition is destroyed, athletic opportunities are lost and players’ safety is completely disregarded.’
Meanwhile, any small advances – multiple references to ‘tranys’ in the 1996 Hansard[ii] thankfully haven’t been repeated more recently – don’t begin to overcome larger retreats elsewhere.
In the intervening 25 years, opponents of legal equality for trans people have pivoted from expressing pity about their plight, while dismissing trans issues as unimportant,[iii] to portraying trans people as potential predators, and a fundamental threat to ‘Western civilisation’.
This dramatic escalation in rhetoric comes not just from the mover of the latter Bill (One Nation’s Mark Latham, who described trans-inclusive education as ‘part of the post-modernist attack on the nuclear family’ in his Second Reading Speech), but also from multiple witnesses who appeared at April’s hearings into his horrific law.
For example, Mark Sneddon of the Institute for Civil Society said (rather uncivilly, and somewhat ominously) in supporting the Bill: ‘What we are trying to do – or what I understand this Bill is trying to do – is to reduce the social contagion influence of putting more people onto the conveyor belt of gender transition.’
Even fear campaigns about women’s bathrooms have worsened, rather than improved, over the past quarter century.
The only reference to toilets I could find in the 1996 Legislative Council debate came from Fred Nile (yes, the same one still sitting in that chamber), who said: ‘Because I am obviously not a woman, I do not know [how] a woman would feel to have a transsexual who was born a male sitting beside her in a woman’s washroom or powder room in a factory, office or club.’
In 2021, this argument has been weaponised, much more explicitly utilising the language of ‘threat’, with Terri Kelleher of the Australian Family Association giving evidence that ‘Is it not discrimination against natal girls if natal male students who identify as female are allowed to use their toilets, change rooms and showers and share overnight school camp accommodation? What about their right to feel safe and to their privacy in spaces where they may be in a state of undress or asleep?’ and later ‘Now, that is not saying that all males or all boys who identify as girls are going to be a threat, but it sets up a situation where that can occur. That is very serious in the light of the child-on-child sexual abuse in schools.’
And, although most participants in the 1996 debate seemed to at least accept that transgender people are who they say they are, by 2021 a number of extremists appearing before Latham’s Committee were regularly making points about high rates of ‘de-transitioning’ and distinguishing between ‘genuine’ and ‘non-genuine’ trans people, before citing ‘social contagion’ and ‘rapid onset gender dysphoria’ (despite all four arguments being completely unsupported by any evidence whatsoever).
However, the toxic atmosphere surrounding Latham’s anti-trans kids Bill, and the fact contemporary discussion seems to be even worse than it was two and a half decades ago, is merely one small part of much larger frustrations about the situation we find ourselves in today.
At the very least, the 1996 debate was about legislation that would ultimately deliver multiple steps forward for trans rights in this state. Not only did the Transgender (Anti-Discrimination and Other Acts) Act insert transgender as a protected attribute in the NSW Anti-Discrimination Act 1977, it also saw NSW become the first jurisdiction in Australia to legally prohibit transphobic vilification (something that still hasn’t happened under Commonwealth law, nor in Victoria, Western Australia, South Australia and the Northern Territory).
The same Act also amended the Births, Deaths and Marriages Registration Act 1995 to allow transgender people who had undergone gender affirmation surgery to access identity documentation reflecting their gender identity.
These were genuinely historic reforms.
In contrast, the deceptively-named Education Legislation Amendment (Parental Rights) Bill 2020 seeks to completely erase real-life trans and nonbinary students from classrooms and schoolyards across NSW, censoring the curriculum and denying them affirmation and support from teachers, principals and even school counsellors.
Some people might be tempted to dismiss this threat given it is merely the product of fringe extremists in the NSW Upper House (one of the chamber’s perennial features). Except the positions of the major parties on this Bill are, so far, worse than when a generation of young people were mislearning the definition of ironic (myself included).
Back then, the Carr Labor Government relentlessly pursued their reforms to anti-discrimination and birth certificate laws. And, while the Collins Liberal/National Opposition ultimately voted against them (because of baseless concerns about the impact of birth certificate changes to women’s sport, including nonsensical statements about the Sydney Olympics), they at least expressed in-principle support for trans anti-discrimination protections.[iv]
In contrast, in the 10 months since Latham introduced his legislative assault on trans kids, neither the Berejiklian Liberal/National Government nor the McKay, and now Minns, Labor Opposition have publicly condemned it.
Indeed, they both voted in the Legislative Council for the Bill to be considered in more detail by a Committee chaired by Latham himself, while the Liberal Parliamentary Secretary for Education Kevin Conolly has expressed his personal support for it.
In failing to reject Latham’s transphobia, could the major parties be any more pathetic?
But the most frustrating part of all is that we need to expend significant time and energy working to defend existing rights, instead of campaigning for improvements to those same reforms passed in 1996.
Because those changes were far from perfect, even when they were first passed.
For example, the amendments to the Anti-Discrimination Act inserted a definition of ‘recognised transgender person’, applying to people who have undergone gender affirmation surgery and had that recognised under the Births, Deaths and Marriages Registration Act, even though it is irrelevant to determining whether anti-trans discrimination was prohibited under Part 3A (poor drafting which is still causing confusion in 2021, as demonstrated by transphobic discrimination by McIver’s Ladies Baths in Coogee earlier this year).
Unfortunately, neither the definition of ‘recognised transgender person’ nor Part 3A introduced protections against discrimination for trans and gender diverse people whose gender identity was nonbinary (instead only covering people who ‘identify as a member of the opposite sex’).[v]
The 1996 Anti-Discrimination Act reforms also permitted discrimination against trans students and teachers in publicly-funded ‘private educational authorities’, including (but not limited to) religious schools.[vi] Something that was difficult to justify 25 years ago, and is impossible to defend now.[vii]
Finally, in limiting access to updated birth certificates to people who have undergone gender affirmation surgery,[viii] the Births, Deaths and Marriages Registration Act changes excluded the majority of trans and gender diverse people who are either unable to access such procedures (including for financial reasons) or who do not wish to. After all, trans people should be in control of their gender identity, not the(ir) doctor.
This weakness is not brand new information, either. The serious limitations of the birth certificate changes were raised by both Democrat[ix] and Greens MLCs[x] at the time.
Nevertheless, just as the Liberal, National and Labor Parties have refused to publicly reject Latham’s anti-trans kids Bill, none are currently promising to fix the problems in the Anti-Discrimination Act first introduced back in 1996, nor have any committed to finally bring the Births, Deaths and Marriages Registration Act into the 21st century by allowing people to update their birth certificates without surgery or other physically invasive medical treatments.
This ongoing silence, on the fundamental human rights of the trans community, is simply not good enough. We really oughta know where the major parties stand on Latham’s anti-trans kids Bill, anti-discrimination reform and birth certificate requirements by now.
We must use whatever influence we have to demand more on these issues from our elected representatives. And by ‘we’ here I’m not talking about trans and gender diverse people, who are already fighting just for the ability to live their lives without discrimination, and to learn without erasure.
It’s time for cisgender members of the LGBT community, as well as our cis-het allies, to step up, and put pressure on Gladys Berejiklian and her Cabinet, and Chris Minns and his Shadow Ministers, to prioritise the dignity and equality of NSW’s trans and nonbinary citizens.
We must do so urgently, too. Because right now, trans and gender diverse people have very few friends in the NSW Legislative Council, and NSW Parliament more broadly.
While there remains a real chance their legal rights will go backwards, rather than forwards, in the near future. Which would be a very jagged little pill to swallow.
I am writing to urge you to publicly oppose the Education Legislation Amendment (Parental Rights) Bill 2020, legislation which would erase trans and nonbinary students from classrooms and schoolyards across NSW, as well as censor the curriculum and deny them access to affirmation and support from teachers, principals and even school counsellors.
This Bill is the worst legislative attack on LGBTI rights anywhere in Australia this century. It is simply not good enough that, more than 10 months after it was introduced, the people of NSW still don’t know whether you and your Party condemn or condone the harm it will inevitably cause.
Nor is it good enough that trans and gender diverse people in NSW are forced to live with second-rate anti-discrimination and identity documentation laws.
Therefore, I also urge you to publicly commit to amend the Anti-Discrimination Act 1977 to:
Remove the unnecessary and confusing definition of ‘recognised transgender person’,
Replace the protected attribute of ‘transgender’ with an attribute of ‘gender identity’ and a definition which ensures nonbinary people are protected against discrimination, and
Remove the special privileges which allow publicly-funded ‘private educational authorities’, including religious schools, to discriminate against trans and gender diverse students and teachers simply because of who they are.
Finally, I urge you to amend the Births, Deaths and Marriages Registration Act 1995 to allow trans and gender diverse people to self-determine their gender identity without the need for physically invasive medical treatment, such as surgery, as well as to recognise a wider range of gender identities, including nonbinary.
If the NSW Parliament fails to amend these laws, it is highly likely we will soon be the only jurisdiction in Australia which places this unfair and unnecessary barrier in front of its trans and gender diverse citizens. These hurdles must be removed as a matter of priority.
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[i] In the 1996 debate, trans women were erroneously described by opponents as ‘transsexual males’, while in the 2021 hearings trans girls were commonly called ‘biological males’ or ‘natal males’. Mark Latham also deliberately used the deadname of a prominent transgender Australian on 20 April.
[ii] The term ‘tranys’ was used by both supporters and opponents of the 1996 legislation, perhaps indicating that this language did not carry the same pejorative connotations it does today. Either way, it was confronting seeing the frequency with which the term was used back then.
[iii] National Party MLC Duncan Gay opposed the 1996 reforms, stating: ‘I am going to be brief in my opposition to this bill. I am amazed about the amount of time spent by honourable members on what I believe is the most stupid and most unnecessary bill to ever come before this Parliament.’
[iv] With Leader of the Opposition in the Legislative Council, John Hannaford, stating: ‘I accept the need to deal with discrimination against members of the transgender community. I acknowledge that violence is committed against such members of the community and also that those members suffer discrimination. It is necessary to address such elements of violence and discrimination.’
[vii] Disturbingly, these represent only the most prominent of the problems with trans protections in the NSW Anti-Discrimination Act. One of the provisions inserted in 1996 provided an exception allowing discrimination by superannuation funds:
‘Section 38Q: A person does not discriminate against a transgender person (whether or not a recognised transgender person) on transgender grounds if, in the administration of a superannuation or provident fund or scheme, the other person treats the transgender person as being of the opposite sex to the sex with which the transgender person identifies.’
Interestingly, the then Attorney General, Jeff Shaw, made the following comment about this provision in his Second Reading Speech:
‘Granting legal recognition also has implications for the superannuation sector in terms of differential contributions and benefits. These implications have not yet been fully determined. The legislation therefore provides for an exemption to legal recognition in this area. Nevertheless, I wish to advise the House that the Government is currently examining this matter with a view to possible further amendments at a later date.’
Except, as you’ve probably guessed by now, those changes never happened – and this exception remains, with the exact same wording, today.
[viii] Interestingly, the Births, Deaths and Marriages Registration Act 1995 provisions were amended in 2008, to replace the original terminology of ‘sexual reassignment surgery’ with ‘sexual affirmation procedure’, but the requirement for surgery was not altered.
[ix] Democrat MLC Elisabeth Kirby stated: ‘Although I support the Government’s amendments to the Registration of Births, Deaths and Marriages Act, I request that the Government give serious future consideration to an expansion of the criteria under which a new birth certificate can be obtained’ before highlighting that only a minority of transgender people undergo surgery.
[x] Greens MLC Ian Cohen also expressed his ‘reservations’ about ‘the certificate provisions not including transgender members of our community who, for whatever reasons, decline surgical intervention’ and later that ‘By using medical interventions as the benchmark for altering documents of identity, the legislation leaves out in the cold 80 per cent of the transgender members of our community who do not avail themselves of medical interventions.’ Perhaps with misplaced confidence he subsequently noted that ‘I am certain that with the passage of time this flaw will be recognised and rectified.’ Well, we’re now at 25 years and counting…
Last weekend was the first Sydney Gay & Lesbian Mardi Gras Parade and/or Party I have missed since 2003. Although I think I had a pretty good reason not to be there – I was attending my grandma’s 100th birthday party in Rockhampton, Queensland (near where I grew up).
Nevertheless, the day before Mardi Gras I received a letter reminding me of just how far there is left to go before we achieve genuine, substantive equality for LGBTI Australians, and especially for trans and gender diverse children and young people.
But, first, some context. In August last year, NSW One Nation Leader Mark Latham introduced the Education Legislation Amendment (Parental Rights) Bill 2020. As I wrote at the time, this proposed law is the worst attack on LGBTI rights in this country this century.
If passed, the Education Legislation Amendment (Parental Rights) Bill 2020 would:
Prohibit any ‘teaching, instruction, counselling and advice’ that gender identity can be different to sex assigned at birth, effectively erasing and invisibilising trans and gender diverse students in schools across NSW
Introducing a UK section 28-style clause making it difficult for teachers, principals and counsellors to support lesbian, gay and bisexual students, and
Enacting an inaccurate and offensive definition of intersex in NSW law for the first time.
The NSW Legislative Council Education Committee is currently conducting an inquiry into this Bill. Unfortunately, the Chair of that inquiry is… Mark Latham. In which case, I decided to bypass the Committee and instead write directly to the majority of MPs calling on them to be champions for trans and gender diverse kids, rather than their bullies.
I have received a small number of responses to date, but the most significant so far arrived in my inbox last Friday, March 5 2021. It came from the Member for Riverstone, Mr Kevin Conolly – who, incidentally, is also the NSW Government Parliamentary Secretary for Education (and therefore a direct adviser to and influencer of the Minister for Education, the Hon Sarah Mitchell). Here is what he wrote:
Dear Mr Lawrie,
Thank you for contacting me to express your view about the Education Legislation Amendment (Parental Rights) Bill 2020.
You appear to have misunderstood the intent and effect of the Bill on a number of levels.
The first thing to state about the Bill is that it gives effect to internationally recognised human rights explicitly stated in international agreements to which Australia (like nearly all nations) is a signatory:
Article 18, part 4 of the International Covenant on Civil and Political Rights states:
‘The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.’
Article 5 of the Convention on the Rights of the Child:
‘Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.’
Article 26(3) of Universal Declaration of Human Rights:
‘Parents have a prior right to choose the kind of education that shall be given to their children.’
I do not agree that the Bill is based on a sick ideology, as you assert. It is based, in my view, on the common sense proposition that it is parents who are best placed and most likely to focus on the best interests of their child, rather than teacher unions, academics or activists with their own political agenda.
In prohibiting the teaching of ‘gender fluidity’ the Bill would preclude the teaching of the false and unscientific proposition that gender is something other than biologically determined.
To state this does not in any way suggest that it is better for young people experiencing gender dysphoria to ‘not exist at all’. I’m sure that Hon. Mark Latham would wholeheartedly agree with you that young people in this situation should be ‘happy and healthy, … safe and supported.’ This is far more likely to be the case if they are in the care of their parents and avoid premature chemical or surgical interventions while they grow and mature.
It is a fact that the great majority of cases of young people with gender dysphoria are resolved in time without any such interventions if children and adolescents are supported by loving families and allowed to make their own decisions when older. Most are resolved with the person coming to terms with their biological gender.
I note that you have mentioned ‘LGBTI’ a number of times in your email. However the Bill has no impact whatsoever on questions of homosexuality, only on the specific issue of so-called ‘gender fluidity’.
In my view, quite contrary to your assertion, the Bill would facilitate a school counsellor or teacher to help a child or young person by allowing counselling to consider all the future options available to the person rather than requiring only one predetermined option (i.e. ‘transition’) to be discussed.
The Bill is a positive step forward because it provides the opportunity for parents to provide genuine selfless care to young people rather than leave them at the mercy of activists whose ‘care’ is far more for their ideological cause than it is for the young person facing difficult challenges. In doing so it upholds universally recognised basic human rights, and responsibilities of parents towards their children.
Kevin Conolly MP
Member for Riverstone
There is obviously a lot to unpack here. First of all, it is clear that Mr Conolly is selectively quoting from some international human rights instruments, while ignoring other key principles. This includes Article 26 of the ICCPR, which states:
‘All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or other status.’
There is no doubt that a Bill which seeks to erase trans and gender diverse students, make life much more difficult for LG&B kids, and stigmatise intersex children, is discriminatory against LGBTI people.
Indeed, as others have written, it is likely that the Education Legislation Amendment (Parental Rights) Bill 2020 will ultimately be found to be unlawful because it contravenes the provisions of the Sex Discrimination Act 1984 (Cth).
But misinterpreting international human rights law is the least of the problems in Mr Conolly’s correspondence.
He also doesn’t seem to understand the Bill itself. The Education Legislation Amendment (Parental Rights) Bill 2020 establishes strict limits on any teaching or counselling of anything to do with what it describes as ‘matters of parental primacy’ – which is defined very broadly to explicitly include ‘matters of personal wellbeing and identity including gender and sexuality’.
Therefore, his protestation that ‘the Bill has no impact whatsoever on questions of homosexuality’ is not only patently false, but makes me question whether he has even read the legislation he is so ardently defending.
On that note, I find it incredibly curious that a member of the NSW Government – and a Parliamentary Secretary at that – is not only publicly supporting One Nation legislation (‘The Bill is a positive step forward…’), but also defending and apparently speaking on behalf of the NSW One Nation Leader (‘I’m sure that Hon. Mark Latham would…’).
But, of course, the worst aspects of Mr Conolly’s letter relate to his views about gender identity.
On this topic, he appears to assert that there is actually no such thing as trans and gender diverse people (‘In prohibiting the teaching of ‘gender fluidity’ the Bill would preclude the teaching of the false and unscientific proposition that gender is something other than biologically determined’). I’m sure that revelation would be surprising to trans and gender diverse people across NSW.
Nevertheless, the most offensive aspect of Mr Conolly’s correspondence arrives near its conclusion, where he argues ‘the Bill would facilitate a school counsellor or teacher to help a child or young person by allowing counselling to consider all the future options available to the person rather than requiring only one predetermined option (i.e. ‘transition’) to be discussed’.
Except that, given those same counsellors and teachers will be explicitly prohibited from even mentioning that gender identity can be different to sex assigned at birth, the only option they will be permitted to present to struggling children is that they simply not be trans or gender diverse.
It is at least arguable that what Mr Conolly is calling for is for counsellors and teachers to provide anti-trans conversion practices in every school across NSW.
It is extraordinary this letter was written by a member of the NSW Liberal/National Government. It is deeply troubling that it was done so by the Parliamentary Secretary for Education, commenting on and explicitly supporting legislation within his portfolio.
This stands in marked contrast to the failure of the NSW Premier, Gladys Berejiklian, Deputy Premier, John Barilaro, and Education Minister, Sarah Mitchell, to take any position on the Bill whatsoever. Indeed, they collectively delegated their reply to my letter to a bureaucrat in the Department of Education, who wrote:
‘The NSW Government will respond to the proposed bill after careful consideration to ensure all relevant legislation and protections are considered.’
Now that the Parliamentary Secretary for Education has declared his personal support for the Education Legislation Amendment (Parental Rights) Bill 2020, I believe this studious refusal to adopt a position is no longer tenable. At a certain point, being non-committal ends up being complicit.
The failure of the NSW Premier to oppose Mark Latham’s awful legislative assault on trans and gender diverse kids is particularly untenable given another development last weekend: Ms Berejiklian’s attendance at the SCG for the Mardi Gras Parade (as tweeted by Commonwealth Liberal MP, Dave Sharma – pictured below).
In my view, if you are prepared to come and celebrate diversity with us – diversity of sexual orientation, gender identity and sex characteristics – then you must be prepared to defend that diversity.
Against attacks by fringe extremist parties in the NSW Legislative Council.
And against support for those attacks by prominent members of your very own Government.
As I wrote previously, ‘It is time for [NSW Parliamentarians] to make your decision about the Education Legislation Amendment (Parental Rights) Bill 2020. Champion. Or bully. The choice is yours.’
Right now, that choice belongs to the NSW Premier, Gladys Berejiklian.
Berejiklian must understand the extremely serious consequences if she makes the wrong decision. Because instead of being able to celebrate their own 100th birthdays early in the 22nd century, some trans and gender diverse students in NSW schools will struggle to reach their 18th.
For LGBTI people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/
Or contact Lifeline Australia on 13 11 14.
If you have enjoyed reading this post, you can sign up to receive updates about this and other issues from this blog, via the right-hand scroll bar on desktop, or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus [NB Given the events of the past month – with this website being blocked by Facebook for being ‘news’ – it is more important than ever to sign up if you want to receive updates, especially with the possibility of further disruptions].
This Valentine’s Day, I have written the below letter to NSW Parliamentarians, asking them to show love for trans and gender diverse kids by unequivocally opposing Mark Latham’s proposed legislation which seeks to deny their existence. Please read through to the end of the article to find out what you can do to help fight back against his bullying.
14 February 2021
Dear NSW MPs
I am writing to urge you to immediately and publicly express your opposition to the Education Legislation Amendment (Parental Rights) Bill 2020.
This legislation makes me sick.
This legislation is sick.
This legislation is based on a sick ideology that it is better for trans and gender diverse kids not to exist at all, than for them to be happy and healthy, and to feel safe and supported in NSW schools.
I, and lesbian, gay, bisexual, transgender and intersex (LGBTI) people in this state, are sick and tired of wasting precious time and energy fighting against such ill-intentioned attacks on our community.
Especially when there is still so much progress left to achieve, including on legal rights for trans and gender diverse people, like providing access to birth certificates without the need for surgery or other invasive medical procedures, or ensuring the Anti-Discrimination Act 1977 covers non-binary people (something it currently does not).
Instead, the NSW Legislative Council’s Education Committee is holding an inquiry into a Bill which is nothing short of the worst legislative attack on LGBTI rights in Australia this century.
A Bill that seeks to prohibit any and all teaching that someone’s gender identity can be different to the gender assigned to them at birth.
That weaponises the so-called morality of transphobes to deny the reality of trans people.
A Bill that actually goes much, much further, by banning any ‘teaching, instruction, counselling and advice’ that acknowledges said lived reality, by anybody remotely connected to a school, from principals to parents volunteering in the school canteen.
That compels a school counsellor to remain silent when a suicidal trans student just needs to hear the most basic words of comfort: that they are not alone, and who they are is okay.
A Bill that recycles failed and flawed policies from Thatcher-era Britain, reviving ‘section 28’-style laws which saw a generation of lesbian, gay and bisexual students marginalised and made invisible, without access to safe sex education even at the height of the HIV epidemic.
Policies that were abandoned in the UK almost two decades ago, now being contemplated for LGBT students right here in 2021.
A Bill that seeks to insert an ignorant, inappropriate and incorrect definition of intersex in NSW law for the first time, further stigmatising individuals that still endure the most significant human rights abuses of any group within the LGBTI community.
It does all of this based on misguided claims that the rights of parents are somehow more important than those of their children. Perhaps the best that could be said regarding this stated motivation is that at least they are being transparent.
For decades, opponents of LGBTI rights have argued that we are a serious threat to the rights of children to be themselves. Demands for our equality have frequently been met with the pleas of excitable Helen Lovejoy-types exclaiming ‘won’t somebody please think of the children’.
Well, this legislation pulls back the curtain to reveal where the real danger lies, and it’s not us. The threat to LGBTI kids comes from parents who would prefer their own children not to exist than to be who they are, and from the politicians who wish to empower them.
This legislation is an admission that, if the criteria for assessing policy proposals is whether it is in the best interests of children, then the homophobes, biphobes and transphobes have lost. Because decades of evidence clearly shows the best response to LGBT kids is to offer them love not judgement, support not suppression.
Instead, anti-LGBTI activists have moved the goalposts, so that the rights of children are no longer supreme, but must be made secondary to the perspectives of parents. But even then only the views of some parents are considered paramount.
This legislation, if passed, would mean not only that transphobic parents succeed in ensuring their own children are not taught about gender identity issues, but that no child is, in any class, anywhere. That includes the trans and gender diverse kids of parents who accept them (as any parent should).
Education is, or at least should be, for all, not just for students who are cisgender, heterosexual and endosex. Schools must not be compelled to be participants in and proponents for the prejudices of some parents.
Teachers must be allowed to teach the truth. The undeniable truth is that trans people exist. Gay, lesbian, and bisexual people as well. Intersex people, too.
These truths might be inconvenient for those who would prefer otherwise. But that is not a good enough reason to pass a law to impose silence where our stories should be.
The Education Legislation Amendment (Parental Rights) Bill 2020 was released more than six months ago. Its discriminatory pillars have been public knowledge for just as long.
Which makes it deeply disappointing, distressing even, that neither the NSW Government nor Opposition have clearly committed to voting against it in the time since then.
Recent events in the United States have served as a stark warning of the profound consequences of playing footsie with fascism.
NSW Parliamentarians should not encourage extremism, by entertaining the exclusion of an entire category of person from education. Make no mistake, that is exactly what this Bill does: it enables the erasure of trans and gender diverse students in every classroom and schoolyard across the state.
I understand that, regrettably, One Nation holds part of the balance of power in the Legislative Council this term. But it is a craven political calculation which concludes two Upper House votes are worth more than the happiness, the childhoods and in some cases even the lives of some of the community’s most vulnerable members.
Surely it is time for you to find your voice and say, finally, you cannot in good conscience stay silent on a proposal that silences trans kids. That you will oppose this harmful and hateful legislation in committee, in debate and whenever it comes up for a vote.
If you are not convinced by the above arguments, then I implore you to do one simple thing: put yourself in the position of a trans child following the potential passage of this Bill.
Imagine realising that, at a fundamental level, you are not like most of the other boys, or girls. You may not have the language yet, yet you know you are different.
But the words you need to express yourself aren’t able to be uttered in the place the Government compels you to attend most days of the first 18 years of your life. A place where you’re supposed to feel safe, but instead are sidelined.
There is nothing in the Personal Development, Health and Physical Education curriculum to say other people like you even exist. They have been excised from the textbooks, just as they’ve been excluded from English, History and other subjects too.
You cannot find any information about who you are in the school library because any books that mention gender diversity have been purged.
You cannot see yourself in any of the trans or gender diverse teachers who might be there either, because they are busy hiding themselves lest they be accused of ‘indoctrination’.
Imagine overcoming these barriers, and, with the support of your family, beginning to affirm who you really are. And then your problems really begin.
Your teacher cannot actively support your transition because to do so could be interpreted as ‘instruction’ to the rest of your class that trans people do, in fact, exist.
They also can’t intervene to stop you from being misgendered and deadnamed by other kids. To some extent, such bullying is inevitable because they’ve never been taught anything about people like you and ‘different’ too-easily, and too-rapidly, becomes ‘wrong’.
You cannot seek advice from the school counsellor, because the moment you start to say anything about gender identity they are forced to shut the conversation down. They’re not even allowed to refer you to the wonderful support service they’re aware of just down the road, but may as well be in a different universe.
And you cannot seek protection from the school principal because of the attitudes of parents and politicians who have never met you, but who hate who you are anyway.
Imagine how you might feel in this situation. How scared. And small. And alone. Even with the backing of a supportive family, it would be difficult. Without it, it would be almost impossible.
I don’t need to imagine very hard. Because there is a lot of similarity in what I described above to the circumstances I confronted as a gay student at a religious boarding school in Brisbane in the early 1990s.
And, if we’re being completely honest, there are still far too many same-sex attracted kids who find themselves in the same scenario in schools all over NSW today.
But it absolutely destroys my heart to think that, even today, NSW Parliament is holding an inquiry into a Bill that would guarantee this mistreatment for trans and gender diverse kids into the future, with the long-term psychological harm that all-too-often goes with it.
It doesn’t need to be this way.
I started this letter by talking about the sickness that lies at the centre of the Education Legislation Amendment (Parental Rights) Bill 2020, and the dangerous views that it espouses. But those views should not be the centre of this debate.
Instead, this discussion is about how we treat people who are not sick, but who are actually beautiful: trans and gender diverse kids.
Kids who deserve the same love, and care, and nurturing, as anybody else. Kids who have the same right to education as anybody else. Kids who should have the same ability to determine for themselves who they are, as anybody else.
As an elected representative in the NSW Parliament, you can be their champion. As part of the debate surrounding this Bill you can stand up and say that trans kids are welcomed and accepted, while transphobia is not.
You can let the people of NSW know, right now, that you will not let this legislation, or any subsequent legislative attacks on trans kids, pass.
Of course, you do have another option. Alternatively, you could choose to progress with consideration of this Bill, through the committee inquiry, and then onto the floor of Parliament for debate. You might even ultimately decide to vote for it.
If you do, then instead of being a champion for trans and gender diverse kids, you would be joining their bullies. And responsibility for the harms caused would be yours to own.
It’s time for you to make your decision about the Education Legislation Amendment (Parental Rights) Bill 2020. Champion. Or bully. The choice is yours.
Things you can do:
The NSW Legislative Council Education Committee (chaired by Mark Latham himself) is conducting an online questionnaire about community views towards the Education Legislation Amendment (Parental Rights) Bill 2020, closing on Sunday 28 February 2021.
Unfortunately, many of the questions asked are (mis)leading. Nevertheless, organisations like the NSW Gay and Lesbian Rights Lobby and Equality Australia recommend completing the survey in the following way:
Fill in your details in response to the first question
At question 2 click ‘oppose’
Skip through the other questions
At question 8 share a story of a teacher who made an impact on your life
Identify yourself only to the extent you feel comfortable.
If you feel comfortable, you should also raise this issue directly with your local member of parliament (you can find a list of MPs here) and let them know you expect them to stand up for the right of everyone to an education, and that includes trans and gender diverse kids.
Finally, you can sign up to receive updates about this and other issues from this blog, via the right-hand scroll bar on desktop, or near the bottom of the page on mobile. You can also follow me on twitter @alawriedejesus [NB Given the events of the past week – with this website being blocked by Facebook for being ‘news’ – it is more important than ever to sign up if you want to receive updates, especially with the possibility of further disruptions].
Update 28 February 2021
I received the following correspondence on Thursday:
Dear Mr Lawrie
I write in response to your email of 14 and 15 February 2021, to the Hon Gladys Berejiklian MP, Premier and the Hon John Barilaro MP, Deputy Premier and Minister for Regional New South Wales, Industry and Trade, and Hon Sarah Mitchell MLC, Minister for Education and Early Childhood Learning regarding the Education Legislation Amendment (Parental Rights) Bill 2020. The Premier and Deputy Premier referred your correspondence to the Hon Sarah Mitchell MLC, Minister for Education and Early Childhood Learning. The Minister has asked me to respond on her behalf.
The NSW Government will respond to the proposed bill after careful consideration to ensure all relevant legislation and protections are considered.
The Department of Education is committed to providing safe and supportive learning environments that respect and value diversity and are free from violence, discrimination, harassment and vilification. NSW public schools have legal obligations to protect and support their students.
We thank you for taking the time to express your concerns over the proposed bill. The NSW Government is working through the formal parliamentary process to address the matter and will communicate this once the process is finalised.
Should you require any further information you are welcome to contact [name and contact details omitted].
A/Director, Curriculum Secondary Learners
25 February 2021
Upon receiving this correspondence, I had three main thoughts:
First, it is disappointing that none of the Premier, Deputy Premier or even the Minister for Education responded directly to my original letter, instead delegating it to the Department of Education.
Second, it is frankly pathetic for the NSW Government to hide behind the committee inquiry process, as if this is an ordinary bill. It is not. It is an extreme proposal that seeks to erase an entire group of students from schools across the state. How much worse must a law be before NSW’s leaders show some leadership and declare that this type of legislation will not be tolerated, let alone considered?
Third, it reinforces the need for everyone who believes in an inclusive education, where all students have the right to learn irrespective of their sexual orientation, gender identity or sex characteristics, to make their voices heard. If you are reading this on Sunday 28 February 2021, please, please, please complete the parliamentary survey expressing your opposition to this Bill in question 2.
That fact may be disappointing, even alarming, to some people – including a certain (in)famous children’s author.
But to ignore it is to deny reality, and live in a world that is no less fantasy than the stories in that author’s books.
The law should reflect reality rather than fantasy.
Unfortunately, the Exposure Draft Crimes Legislation (Offences Against Pregnant Women) Bill 2020 does not adequately engage with the real world in 2021.
Instead, it consistently refers to the people it intends to protect as pregnant women, including in the primary provision which establishes circumstances of aggravation under the Crimes Act 1900 (NSW), with proposed sub-section 9(1) stating:
‘It is a circumstance of aggravation for an offence against this Act (the relevant offence) if-
(a) the relevant offence is committed against a pregnant woman, and
(b) the act of omission that constitutes the relevant offence causes the destruction of the foetus of the woman.’
This creates at least three potential problems in relation to non-binary people, and trans men, in NSW[i] who are currently or will in the future become pregnant.
First, some people may attempt to argue this wording would therefore mean such aggravation does not apply in relation to the destruction of a foetus of a non-binary person or trans man who was pregnant.
This problem is likely the easiest to overcome, with sub-section 8(1) of the Interpretation Act 1987 (NSW) providing that ‘[i]n any Act or instrument- a word or expression that indicates one or more particular genders shall be taken to indicate every other gender.’
In this situation, woman may consequently be interpreted by courts to also include non-binary people and trans men – although I would appreciate confirmation from the Department of Communities and Justice that this interpretation is correct, and that the foetuses of non-binary people and trans men are not considered less important than the foetuses of women under this proposed law.
The second problem is more difficult to overcome, and that is because the repeated use of the phrase pregnant women – without explicit recognition of the pregnancies of other people – itself reinforces the invisibilisation and marginalisation of those people.
Non-binary people and trans men who are or will in the future become pregnant will see a law that does not include them in its text.
This problem is also very easy to overcome, provided there is sufficient parliamentary support to treat all people equally under the law. That is to simply replace the phrase pregnant woman with pregnant person, both in the title of the legislation and throughout.
The third problem is one that will be created by the Bill for the future.
At some point – whether this year, this term, or later this decade – NSW will hopefully join the majority of Australian jurisdictions in allowing trans and gender diverse people to amend their birth certificates without requiring surgery or other invasive medical procedures beforehand.[ii]
That change would ensure the Births, Deaths and Marriages Registration Act 1995 (NSW) accepts the existence of all trans and gender diverse people, and therefore of non-binary people and trans men who can become pregnant.
When that reform is finally passed, the already strong case to amend the phrase pregnant woman to pregnant person in the current Bill will become overwhelming.
In my view, it makes absolutely no sense to introduce flawed legislation today knowing both that it does not reflect lived experience now and that it will need to be changed in the not-too-distant future.
I should note at this point that, if the provisions of the Crimes Legislation (Offences Against Pregnant Women) Bill 2020 were already part of existing law, this would not be the highest priority for reform.
It is clearly far less important than amendments to the Births, Deaths and Marriages Registration Act itself, to grant trans and gender diverse people in NSW the right of self-determination over their own gender identity.
And it is far less urgent than stopping the One Nation Education Legislation Amendment (Parental Rights) Bill 2020, which would erase a generation of trans and gender diverse students in classrooms across the state.[iii]
Nevertheless, that still does not justify the introduction of a new law that simply entrenches old mistakes, especially when those mistakes can be so easily avoided by substituting one word.
Finally, I have written the above submission as an advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community. I am also someone who supports the right to choose for people who are pregnant.
I have taken at face value the statements on the Department of Communities and Justice website, and in the Premier and Attorney General’s media release of 10 November 2020,[iv] advising that ‘[t]he proposed amendments do not affect existing laws on abortion.’
If those statements are not accurate, then I defer to the expertise of reproductive rights organisations and support any amendments which are necessary to protect the hard-fought, and hard-won, right to reproductive choice in NSW.
In conclusion, I would like to reiterate my original point – that the law should reflect reality, not fantasy.
In the real world, there are already, and will be in the future, non-binary people and trans men who are pregnant. The wording of the Crimes Legislation (Offences Against Pregnant Women) Bill 2020 does not reflect this reality. It should be changed.
Thank you for the opportunity to make a submission on this draft legislation. Please do not hesitate to contact me at the details provided should you require further information.
[i] This includes people who have updated their identity documentation to reflect their gender identity in Australian jurisdictions which do not require surgery or other invasive medical procedures beforehand. Of course, it also includes many people in NSW who are currently unable to do so because of the inappropriate and unjustified restrictions in section 32B of the Births, Deaths and Marriages Registration Act 1995 (NSW). However, despite what that law may say, in reality – in their day-to-day lives – these people are not women.
Don’t let the innocuous title fool you. This Bill seeks nothing less than the total erasure of any and all trans and gender diverse content, inclusion programs and even counselling from every school in NSW, government and non-government alike. In doing so, it seeks to completely erase trans and gender diverse kids, too.
It does this by adding the following definition to the Education Act 1990 (NSW):
gender fluidity means a belief there is a difference between biological sex (including people who are, by their chromosomes, male or female but are born with disorders of sexual differentiation) and human gender and that human gender is socially constructed rather [than] being equivalent to a person’s biological sex.
This definition effectively excludes the very existence of trans and gender diverse people.
Latham’s Bill then prohibits the inclusion of anything to do with ‘gender fluidity’ from all courses approved for use in schools across NSW.
And it prohibits not just ‘the teaching of gender fluidity’ (proposed section 17A), but also any ‘instruction, counselling and advice provided to students by:
non-teaching school executives;
non-teaching school counsellors,
non-teaching staff, contractors, advisors and consultants of a school,
non-school based staff, contractors, advisors and consultants of a school, and
volunteers at a school’ (proposed section 17C).
Everyone – from teachers, to principals, counsellors, and parents volunteering in the classroom or the tuckshop – must adopt an official silence on anything to do with trans and gender diverse people.
The consequences for teachers breaching this silence are severe: the Bill proposes amendments to the Teacher Accreditation Act 2004 (NSW) that would cancel the accreditation of any teacher who even acknowledges that trans and gender diverse people are a thing.
My bill outlaws gender fluidity teaching, course development and teacher training and ends the accreditation, and thus the employment, of any individual breaking that law.
Of course, the consequences for trans and gender diverse students are far worse. They will be made to feel completely invisible, with no information about who they are, let alone reassurance who they are is okay.
There will be no trans and gender diverse content in health and physical education classes, at any age, or in any other subject, either. History, literature, indeed all of the social sciences, must be purged of any reference to trans and gender diverse characters and people. As Penny Sharpe MLC interjected during Latham’s speech, this is book-banning writ large.
Trans and gender diverse students will have nowhere to turn for assistance. School counsellors, who are supposed to help all students, will be prohibited from even talking about gender identity issues with them.
Even sympathetic teachers will feel compelled to pretend that the trans and gender diverse kids in their classrooms, sitting right in front of them, do not exist. They will be encouraged to misgender and deadname them, or jeopardise their careers. They would likely be unable to intervene to stop transphobic bullying and harassment of these kids as well.
Because to acknowledge that trans and gender diverse kids exist would be to acknowledge that sex is different to gender, and that gender exists on a spectrum.
Tragically, the purging of all trans and gender diverse content from courses, the invisibilisation of trans and gender diverse kids themselves, and the removal of all support from teachers, counsellors and others, will inevitably lead to trans and gender diverse kids killing themselves.
But then that’s possibly the point. The Education Legislation Amendment (Parental Rights) Bill 2020 appears to be built on the ideology that it is better for a child to be dead than to be happy, well-adjusted and trans or gender diverse.
Before moving on, we should also highlight the serious problems this legislation will cause for trans and gender diverse employees. It seems likely that identification as non-binary will be prohibited – teachers, and other staff, would not be able to insist on the use of they/them pronouns, or other non-gendered language. They would be forced to deny who they are.
The situation for binary trans teachers and other staff would be nothing short of horrifying. If anyone in the school community, from students to other staff and even parents, became aware of their gender identity, and decided to weaponise it against them, they would be unable to defend themselves, because again to do so would be to affirm sex is not gender. They too would be powerless to stop themselves from being deadnamed and misgendered.
The attack on trans and gender diverse people, and especially trans and gender diverse kids, in this legislation is brutal. But other parts of the LGBTI community aren’t spared either.
That’s because the Bill also establishes a new framework in the Education Act 1990 (NSW) which restricts teaching around a wide range of issues. These are framed as ‘matters of parental primacy’, and defined as:
in relation to the education of children, moral and ethical standards, political and social values, and matters of personal wellbeing and identity including gender and sexuality.
It would then allow parents and guardians to remove their child from any course that even mentions sexuality (proposed section 17D) – meaning any class, from health and physical education, through any of the social sciences, which dares to state that lesbian, gay and bisexual people exist.
It would also compel schools to consult with parents and guardians at the start of each year about any course which includes anything to do with sexuality (proposed section 17E) and then attempt to teach that course consistently with ‘the moral and ethical standards and the political and social values of parents of students’ (proposed section 6(o)).
Of course, given it is impossible to teach any course consistent with the political and social values of all parents, and the significant administrative hurdles involved, most schools will simply jettison all courses that mention anything to do with same-sex attraction. Lesbian, gay and bisexual content will be purged just like trans and gender diverse information before it.
Even where schools do decide to include this information, proposed section 17B would intervene to limit its effectiveness:
17B Teaching to be non-ideological
In government schools,[i] the education is to consist of strictly non-ideological instruction in matters of parental primacy. The words non-ideological instruction are to be taken to include general teaching about matters of parental primacy as distinct from advocating or promoting dogmatic or polemical ideology.[ii]
The impact of this clause is potentially far-reaching. After all, if some parents believe homosexuality is ‘sinful’, then presumably it would be ‘ideological’ for a school to teach being lesbian, gay or bisexual is okay. And if some parents assert all sex outside marriage is prohibited, and that LGB people must be celibate, then it could be ‘ideological’ to provide safer sex education at all, but especially about non-heterosexual intercourse.
The use of the words ‘advocating or promoting’ is especially concerning. This provision is, in effect, an Australian equivalent of the UK’s notorious section 28, which was introduced by the Thatcher Government in 1988, and persisted until 2003 when it was finally repealed.
Section 28 of the Local Government Act 1988 (UK) stated that a local authority ‘shall not intentionally promote homosexuality or publish material with the intention of promoting homosexuality’ or ‘promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.’
The word ‘promotion’ was interpreted broadly, meaning many teachers and schools simply refused to discuss anything to do with same-sex attraction, lest they be accused of ‘promoting’ it. This clause caused a generation of same-sex attracted students to be abandoned, left alone, scared and confused, and without access to safer sex education at the height of the HIV epidemic.
Mark Latham’s section 17B would have the same chilling effect as section 28 – teachers, principals, counsellors and volunteers (including parents) would fear telling a struggling lesbian, gay or bisexual student that who they are is perfectly okay, because it could be seen as promoting an ‘ideological’ view.
While on first glance the provisions of the Education Legislation Amendment (Parental Rights) Bill 2020 which apply to sexuality appear to be less harsh than the more direct attack on trans and gender diverse kids, the outcome could nevertheless be the same – silence, invisibility and lack of support, leading to dead children.
Finally, it should be noted that the provisions of this Bill are damaging to intersex kids too.
The definition of ‘gender fluidity’, reproduced above, includes this phrase: ‘including people who are, by their chromosomes, male or female but are born with disorders of sexual differentiation’, which is presumably a reference to people born with intersex variations of sex characteristics.
Except intersex variations of sex characteristics are not *disorders*, and the use of this terminology is particularly destructive, reinforcing stereotypes that these differences are wrong and something to be ‘corrected’. This term therefore increases the stigmatisation of intersex children, and will lead to further unnecessary and harmful medical and surgical interventions – an ongoing human rights abuse that must be ended, not perpetuated.
Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 is a direct assault on all parts of the LGBTI community, and especially LGBTI children. Above all, it seeks to completely erase trans and gender diverse content, inclusion programs and counselling from every school in NSW – and thereby erase trans and gender diverse kids themselves.
That’s why, in my view, it is the most damaging attack on the LGBTI community this century. Worse than John Howard’s original ban on same-sex marriage. Worse than the Morrison Government’s proposed Religious Discrimination Bill (although it also has far-reaching negative consequences for LGBTI Australians). Worse even than Latham’s own Anti-Discrimination Amendment (Religious Freedoms and Equality) Bill 2020.
Because it is a calculated and deliberate campaign against the most vulnerable among us.
It is a transphobic (and homophobic, and biphobic, and intersexphobic) agenda that we must resist with all our resources.
Unfortunately, we are already off to a bad start, with the NSW Legislative Council also voting on Wednesday to refer this legislation to Portfolio Committee No. 3 – Education, for inquiry. For those who are not aware, the chair of that Committee is … Mark Latham himself.
Which means we will need to appeal directly to the other members of the Committee to reject his proposal:
Matthew Mason-Cox (LIB, Deputy Chair)
Anthony D’Adam (ALP)
Wes Fang (NAT)
Scott Farlow (LIB)
Courtney Houssos (ALP), and
David Shoebridge (GRNS).
Ultimately, and perhaps somewhat ironically, the debate surrounding a Bill which explicitly mentions ‘moral and ethical standards, political and social values’ is a test of character for the Members of the NSW Parliament.
The question is one for NSW Premier Gladys Berejiklian, and Opposition Leader Jodi McKay: do you stand with trans and gender diverse kids, and LGBTI kids generally, or do you support a Bill that purges LGBTI content from classes, removes support from teachers, counsellors and others, and renders LGBTI kids themselves invisible?
Most importantly, they must make their decision quickly, and rule out supporting the Education Legislation Amendment (Parental Rights) Bill 2020, before the inevitable toxic debate, inside and outside Parliament, led by Latham and backed by his cheerleaders in the right-wing media.
I stand with trans kids, and against Mark Latham. What about you Gladys and Jodi?
For LGBTI people, if this post has raised issues for you, please contact QLife on 1800 184 527, or via webchat: https://qlife.org.au/ or contact Lifeline Australiaon 13 11 14.
Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 is a worse attack on the LGBTI community than John Howard’s 2004 ban on same-sex marriage.
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[i] Presumably, non-government schools will be able to be ‘ideological’ and provide instruction which condemns same-sex attraction.
[ii] Section 17B ends with: ‘For the avoidance of doubt, this section does not apply to special religious education provided under section 32 of this Act’, which leaves open the possibility that homophobic materials will be able to be distributed in special religious education in government schools.