Ten Months of Transphobia

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

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

Already this week, they have reported on posts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trans women are women.

Trans men are men.

Trans rights are human rights.

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

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

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

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

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

And plenty more besides.

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

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

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

Katherine Deves

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Footnotes:


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

[ii] Full text:

‘That the Senate-

(a) notes that:

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

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

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

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

(b) further notes that:

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

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

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

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

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

(d) condemns the practice of children receiving:

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

(ii) irreversible transgender surgery.’

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

[*Not surprising in the slightest]

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

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

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

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

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

  1. Lack of trans witnesses

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

Zero.

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

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

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

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

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

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

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

2. Disrespectful treatment of submitters and witnesses

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

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

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

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

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

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

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

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

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

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

Latham: ‘Jesus, seriously.’

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

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

Shoebridge: ‘Carry on.’

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

Latham: ‘That is unbelievable.’

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

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

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

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

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

3. Allowing irrelevant evidence

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

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

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

And

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

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

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

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

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

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

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

And then allowed to elaborate:

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

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

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

Shoebridge: ‘Or teachers sitting outside toilets timing.’

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

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

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

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

4. Providing a platform for transphobia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5. Giving evidence from the chair

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

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

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

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

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

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

Fang: ‘To the point of order-‘

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What the fuck are they waiting for?

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

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

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

Or contact Lifeline Australia on 13 11 14.

Footnotes:


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

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

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

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

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

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

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

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

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

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

Shoebridge: ‘It is not evidence.’

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

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

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

Submission to Consultation on Proposals for a First Nations Voice

30 April 2021

Submitted online

I am writing to express my personal support for the Uluru Statement from the Heart, which was a generous invitation by First Nations people to non-Indigenous Australians to walk together ‘in a movement of the Australian people for a better future.’

This includes whole-heartedly endorsing the three key elements of the Uluru Statement:

  • Voice
  • Treaty, and 
  • Truth.

As the Statement itself outlines, the first element – a First Nations Voice – must be ‘enshrined in the Constitution’.

Constitutional enshrinement is essential to ensure the independence of the Voice, and protect it against political intervention by the Government of the day, something which has unfortunately occurred in relation to past Aboriginal and Torres Strait Islander bodies.

Constitutional enshrinement will also provide the Voice with stability, as it would not be able to be abolished through the passage of simple legislation, as happened with the Aboriginal and Torres Strait Islander Commission (ATSIC).

I therefore urge the Commonwealth Government to honour its election commitment to hold a referendum to establish the Voice once the model has been settled.

The referendum process itself has the opportunity to be a unifying moment, as a step along the long journey of genuine Reconciliation.

A successful referendum, with what I would hope would be a large majority of Australians voting in favour, would also provide the Voice with additional authority and legitimacy as it fulfils its Constitutional responsibilities.

Holding a referendum in the near future would also take advantage of what I believe is growing momentum towards embracing the Uluru Statement from the Heart and the opportunity for substantive progress which it presents.

On the other hand, I strongly oppose the creation of a Voice via legislation prior to such a referendum. 

This approach – ‘legislation first, referendum later’ – is weak for the same reasons a ‘referendum first’ approach is strong.

‘Legislation first, referendum later’ means the Voice would lack true autonomy in its formative years, at the very time it would need to be establishing its credibility with First Nations people.

It would operate under the constant threat of being abolished, just like its predecessors, while delays to any referendum could squander the community goodwill which has been built in support of the Uluru Statement.

All of that is before considering the real possibility of the current, or a future, Government walking away from their commitment to hold a referendum at a later date.

The order of events to create the Voice must therefore be a constitutional referendum first, followed by the passage of enabling legislation.

The above position reflects the first two ‘key messages’ of the Indigenous Law Centre at the University of NSW, and the Uluru Dialogue.[i]

I also endorse their third ‘key message’:

‘The membership model for the National Voice must ensure previously unheard Aboriginal and Torres Strait Islander people have the same chance of being selected as established leadership figures.’

In relation to this principle, I would like to make a comment about one of the proposed elements of a First Nations Voice as highlighted in the Indigenous Voice Co-design Interim Report, provided to Government in October 2020 and underpinning the current consultation.

Specifically, Chapter Two of that Report proposes two options for the Voice on page 37:

Option 1 – equal representation (preferred option), which features 18 members with ‘two members of different gender for each state, territory and Torres Strait Islands’, and

Option 2 – scaled representation, which features 16 members with ‘two members of different gender for each state and the Northern Territory’ and ‘one member each for the ACT and Torres Strait Islands with a member of a different gender selected following each completed term…’

The discussion on page 38, under the heading ‘Gender representation’, then states:

‘The National Co-design Group agreed unanimously to the importance of gender balance. All options reflect the principle that there must be a requirement for balanced representation of different genders in the National Voice membership.’

In response, I begin by welcoming the use of the term ‘different gender’ rather than the exclusionary phrase ‘opposite sex’ in these options.

I obviously also support efforts to ensure the National Voice is not male-dominated, and certainly not in the same way that Commonwealth Parliament currently is.

Despite this, I question how these options would operate in practice, especially the requirement there ‘must’ be ‘gender balance’ (with some of the materials supporting the current consultation describing this as ‘guaranteed gender balance’).

In particular, how does such a requirement apply with respect to non-binary people or other First Nations people with gender identities that are not male or female?

I suspect most people reading the Interim Report and associated consultation materials would interpret proposals for two members per jurisdiction being of different genders, reinforced by an overall requirement for gender balance, as involving one female and one male member in each state or territory.

However, that outcome would mean non-binary First Nations people may be prohibited from serving on the National Voice (which is contrary to a goal of ‘ensuring previously unheard Aboriginal and Torres Strait Islander people have the same chance of being selected as established leadership figures’).

On the other hand, if non-binary people are allowed to serve as members of the National Voice, this may result in the numbers of male and female members being different or unequal, and not satisfy some people’s notions of ‘gender balance’.

I raise this issue as a long-term advocate for the lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) community.

Nevertheless, I am conscious that I am not Indigenous, and believe that the core features of the Voice, including criteria for membership of the National Voice, are matters for First Nations people. 

In this context, I am not proposing a solution to this issue (concerning requirements for gender balance and their potential adverse impact on non-binary and other gender diverse First Nations people), merely bringing it to the attention of those responsible for this consultation and suggesting that it be considered further.

Thank you in advance for taking this submission into consideration.

Sincerely

Alastair Lawrie

The Uluru Statement from the Heart.

Footnotes:


[i] 1. The government must honour its election commitment to a referendum once a model for the Voice has been settled.

2. Enabling legislation for the Voice must be passed after a referendum has been held in the next term of Parliament.

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

Cooperative workplaces must be trans and intersex inclusive workplaces

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

 

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

 

Attorney-General’s Department

via IRconsultation@ag.gov.au

 

Monday 24 February 2020

 

To whom it may concern

 

Cooperative workplaces must be trans and intersex inclusive workplaces

 

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

 

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

 

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

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

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

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

e) Fair treatment policies and procedures.

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

There are other exclusions too:

  • Section 153 provides that discriminatory terms must not be included in modern awards. The list of relevant attributes includes sexual orientation, but excludes gender identity and sex characteristics;
  • Section 195 includes a similar prohibition on discriminatory terms in enterprise agreements, and once again omits trans, gender diverse and intersex people;
  • Sub-section 578(c) provides that the Fair Work Commission must perform its functions taking into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

 

There is literally no requirement for the Fair Work Commission to help prevent or eliminate transphobic and intersexphobic workplace discrimination.

 

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

 

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

 

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

 

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

 

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

 

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

 

Which, to be blunt, entirely misses the point.

 

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

 

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

 

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

 

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

 

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

 

Recommendation 1

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

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

 

Recommendation 2

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

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

 

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

 

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

 

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

 

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

 

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

 

Sincerely

Alastair Lawrie

 

Cooperative workplaces

 

For more, see Unfairness in the Fair Work Act.

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

What Gender Reveal Parties Actually Reveal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. Don’t hold a gender reveal party

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

  1. Don’t attend gender reveal parties

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

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

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

  1. Stop asking ‘What are you having?’

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

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

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

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

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

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

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

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

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

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

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

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

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

And that idea is as simple as just eating cake.

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

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

Untitled design (5)

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

 

Footnotes:

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

[ii] IHRA website, here.

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

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

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

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

Trans out-of-pocket medical costs

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

 

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

 

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

 

As this March 2018 story from ABC expands:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

It notes on page 20 that:

 

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The Labor Party response was somewhat better:

 

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

 

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

 

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

 

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

 

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

 

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

 

Daily Telegraph transphobic front page

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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Footnotes:

[i] The other four are:

Priority C: An inclusive and knowledgeable NSW health sector

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

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

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

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

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

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

Genderless (Notices of Intended) Marriage

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

**********

Commonwealth Attorney-General’s Department

via marriagecelebrantssection@ag.gov.au

 

Sunday 28 October 2018

 

To whom it may concern

 

Notice of Intended Marriage Consultation

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

I can see no such purpose in this instance.

 

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

 

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

 

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

 

Gender (optional), please specify

 

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

 

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

 

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

 

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

 

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

 

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

 

Sincerely

Alastair Lawrie

 

images-1

 

Footnotes:

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

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

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

Identity, not Surgery

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

 

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

 

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

 

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

 

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

 

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

 

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

 

NSW

 

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

 

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

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

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

 

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

 

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

 

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

 

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

 

Victoria

 

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

 

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

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

 

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

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

 

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

 

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

 

Queensland

 

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

 

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

 

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

 

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

 

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

 

Western Australia

 

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

 

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

 

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

South Australia

 

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

 

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

 

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

 

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

 

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

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

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

 

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

 

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

 

Tasmania

 

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

 

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

 

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

 

ACT

 

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

 

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

 

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

 

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

 

NT

 

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

 

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

 

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

 

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

 

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

 

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

 

**********

 

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

 

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

 

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Ending Forced Trans Divorce: Mission Accomplished

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

 

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

 

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

 

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

 

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

 

So how did the states and territories respond?

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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