A Submission on
to the Secretary
In our submission we will concentrate on the need for protection against discrimination on the grounds of a person's transgender identity, comment on the draft bill and discuss some legislative options.
The Need For Transgender Law Reform in Australia
The medical / psychological treatment of transgenderism is certainly an area where science and the law are out of kilter. Medicine provides a transsexual solution to gender dysphoria; allowing individuals suffering this dysphoria to align their bodies and gender identities; but only allowing partial integration socially by denying them protection against discrimination; legal identification in their chosen gender; the inability to marry and lack of legal protection from incompetent or inappropriate medical treatment.
We believe both Australia's own obligations and it's international obligations to protect all it's citizens against discrimination and vilification and to provide an atmosphere conducive to their wellbeing, physically, psychologically and spiritually leads inextricabally to the need to legislatively protect it's citizens on the grounds of their transgender identity. In December 1995 the European Court of Justice in an employment discrimination case transsexuals have won a decision which means that through out the European Community it will be illegal to discriminate against a transsexual in employment. (report appendixed)
The primary legislation needed by the transgendered is protection against discrimination and vilification; The Bill's definition of transgender is very good; it is particularly appropriate for anti-discrimination legislation because it includes even slightly transgendered individuals and those who do not identify as transgendered but who are imputed to be transgendered. One of the most used forms of vilification for the transgendered is the inappropriate use of pronouns and titles. See the appendix-ed examples from Julie Peters and Jane Langley.
The one area the causes the most problems for the trans/-gen/-dered who are looking for employment is their legal identity and their educational and work history documentation. When someone who looks like a woman applies for a job and has to present a birth certificate that says ``male''; the employer doesn't risk employing them; he sacks them; and under current legislation he is quiet entitled to sack them on the grounds of their transgender identity. We know of a case where an employer found out his new staff member was transgendered; he raped her and then sacked her without severance pay; she stopped looking for work.
The legislation enacted in SA, NSW and WA which enables persons to change the gender on their birth certificates is very good for those people for whom gender reassignment surgery is a positive step in their lives. It is appalling for those transgendered want to have surgery and either have to wait or can't afford it. It is appalling for those transgendered for whom surgery is totally inappropriate. These two groups are discriminated against by such a medical definition of transgender; people who would be happy to live an intergender life are forced to have surgery in order to have their papers changed and those who have just changed over who desperately need a job to give them self esteem and possibly save to pay for their surgery are denied work.
We believe this dilemma is easily solved. Just as ``race'' on birth certificates was declared illegal in the USA in the early seventies, because it facilitated and legitimized race discrimination. We believe gender should be removed from all but medical documentation. The ``sex'' of a patient is relevant for many types of medical treatment. Our Sex Discrimination Legislation has said the nature of one's genitals is irrelevant in employment, education etc. and we so we see no reason it should be on almost every piece of personal documentation a person has. Another positive effect of removing gender from all but medical documentation is that the transgendered never have to change their papers and it will stop mildly transgendered people having the surgery for the sole purpose of having their papers changed.
Here is a brief list of the major types of documentation that won't be changed to the new name by some organizations and documents that are inappropriately gendered; birth certificates, naturalization papers, passports, driver's licences, educational qualifications and testamurs and work history documentation. It is important to allow any changes to documents to be afforded the utmost privacy. The removal of gender from inappropriate documentation will probably be slower to be achieved legislatively and the short term ability to change the gender on documentation would be appreciated by a some of the community.
Medical Responsibility and Care
Part II of the South Australian, Sex Reassignment Act (1988) specifies some responsibilities by medical professionals to ensure proper counseling and care. This is not the case in Victoria. We believe the medicalisation of transgender needs to be examined; proper counseling and not just assessment as to whether or not a person is transgendered or not is very important; and that educating patients and so enabling them to make informed choice far more desirable. We believe the proper role of psychological assessment is see if the individual is capable of making informed choice. We believe their ought to be a medical code of practice for the treatment of transgendered. Such a system is used by Bockting and Coleman in Minnesota. This code of practice needs to include the appropriate reaction by Medicare, which currently treats hormone treatment and gender reassignment surgery as cosmetic surgery.
When you have gender reassignment surgery you have to sign consent forms, which our legal advisor believes completely abdicate responsibility by any medical professional for any of the consequences of the operation. We believe the normal level of responsibility expected by medical professionals for their work should apply for this procedure just as it does for removing an in-grown toe-nail or a kidney stone.
We would just like to emphasise that all forms of dispute resolution ought to afford the transgendered person the utmost privacy.
Many transgendered would like to marry and would like legislation changed to allow them to marry in their new gender role just as they can marry in Germany.
Indivuals do not take on a transgendered life style lightly. Most transgendered suffer many years of anguish before they admit to themselves they are transgendered. We believe the law reforms we have asked for in this submission will almost bring the transgendered the basic rights the rest of Australians have.
Henry Finlay, Prof of Law, Univ of Tasmania: co-author ``Sex-Change:
Medical and Legal aspects of sex reassignment'' (1988), self published
William Walters, Prof of Gynaegology, Newcastle: co-author
``Sex-Change: (as above)''
Other Suggested References
``Gender Dysphoria; Interdisciplinary Approaches in Clinical
Management''(1992), edited by Walter Bockting, Drs and Eli Coleman,
The Haworth Press. (review by Julie Peters appendixed)
List of Appendices
``Transsexual Power'' by Jane Langley; to examine issues of discrimination
© Copyright Julie Peters 1996