|In the final pre-closure piece on the injury of transphobic discrimination, I will be focusing on several recent Australian law journal reports on the passage of state trans-inclusive antidiscrimination laws. How have they worked in practice?
In 2001, Jo Bird wrote a paper on the limitations of different regimes for either recognising or not recognising transgender rights in the Southern Cross University Law Review. These included subsuming gender identity as a form of sex or gender discrimination; providing protection against sexual orientation discrimination, but not gender identity; including protection only for post-operative transsexuals; including transgender identity as a distinctive ground under antidiscrimination laws; and subsuming gender identity under "disability or impairment" anti-discrimination legislation or clauses. Of these, when it comes to the Human Rights Act 1993, Michael Cullen's Crown Law Office opinion used the theory that gender identity discrimination "could" be subsumed under sex/gender discrimination, while the abandoned correctional policy about gender identity and appropriate correctional facilities only applied to post-operative transsexuals. Given the prohibitive costs of unsubsidised gender reassignment surgery, that meant few transgender prisoners were actually protected under the earlier regime.
Bird argues that in the practical context of case law, courts have shown little practical inclination to extend the ambit of sex/gender anti-discrimination coverage to include transitioning and changes in ascribed birth gender in the context of employment law and have instead interpreted the existing categories of sex and gender narrowly in the context of employment law. Thus, that offers no protection for aggrieved transpeople who have experienced gender identity discrimination in the workplace. Does the inclusion of sexual identity or orientation within antidiscrimination legislation provide any stronger protection against discrimination? No, because gender identity is a distinct ground of employment, accommodation and service provision discrimination than sexual orientation. In Western Australia, the Equal Opportunity Act 1984 only applies to certified post-operative transpeople with available official documentation about their new gender reassignment.
In New South Wales and Victoria, the Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996 and the Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000 do directly include gender identity as a distinct ground within anti-discrimination laws and the clauses make it plain that it recognises a clearly expansive definition that encompasses transitioning and thus protects pre-operative transwomen and transmen, as well as those who might be unable to undergo full reassignment surgery due to other medical reasons such as surgical risk associated with ageing or relevant disabilities. How have these worked in practice?
Unfortunately, the Victorian legislation is seriously flawed, as it includes broad sections on prior advice of employers about prospective transgender transitioning and allows employers to discriminate on the basis of "perceived", subjective criteria that the "stress" of accommodating employee discrimination imposes excessive "burdens" on the affected business, or might be met from an "adverse reaction" from its client base.
What about recognition of corrective surgery as the criterion for transgender status? As noted above, this regime only protects post-operative transsexuals, not transitioning transwomen and transmen. As a consequence, the latter may be placed in gender inappropriate correctional facilities and risk transphobic battery or rape at the hands of cisgender male inmates. Bird notes that this was the result of R v Harris and Guinness (1988), in which a pre-operative transwoman was treated differently from her post-operative counterpart when it came to legislation that specifically applied to prohibition of "male" sex work. The pre-operative transwoman was treated as a "male" while her counterpart was not, and was jailed in a gender appropriate correctional facility. Mercifully, due to the diligent work of Kelly Ellis and her Equal Justice Project associates, this legislative regime has now been abandoned in New Zealand.
Brandon Teena Transphobic institutional non-recognition of official documentation can have devastating, even fatal consequences for transwomen and transmen. One thinks of the murdered transman Brandon Teena, after disclosure of his birth gender due to transphobic police officers that resulted in his assault, rape and murder by his girlfriend's murderously transphobic male ex-partner. Fortunately, Australia and New Zealand have introduced statutory regimes that do recognise the need for official document reconciliation, although Allyson Hamblett has asked whether the scope of such regimes is comprehensive enough to encompass all contingencies.
In 2005, Karen Gurney wrote a paper on the latter subject, specifically criticising Victoria's new regime for recognising the alteration of official documents required by the process and continuum of transitioning. The Births, Deaths and Marriages Registration Amendment Act 2004 is flawed because it only affects post-operative transpeople. Gurney notes that this penalises the young and pre-operative, who may be subjected to transphobic bullying at school; those who cannot undergo full reassignment surgery due to surgical risk related to advanced age or physical disability, which amounts to disability discrimination in this context; and those who remain in a valid prior marriage. Medical practitioners in this field have slammed legislative inertia in the context of official document modification to reflect the realities and needs of transitioning transwomen and transmen, as well as limitations on applicability criteria for official document reconcliation. In this context, the landmark New Zealand Family Court case New Zealand Attorney-General v the Family Court of Otahuhu (1994) is particularly useful because it explicitly recognised transitioning as a social and psychological process and continuum, not as an abrupt corrective surgical procedure resulting from reassignment. In Re Kevin (2001), Australian courts followed suit when dealing with marriage between a transman and woman, recognising the legality of the marriage. Unfortunately, federal Australian social security legislation is not as nuanced and inclusive, still treating transitioning Australian transpeople as their birth gender. Predictably, the United States is tiresomely backward when it comes to recognition of the social and psychological aspects of transgender identity that require legislators and the courts to recognise it as a continuum, which needs to encompass all stages of transitioning.
The lesson of these two articles is clear. Transphobic discrimination is substantive, it exists and as one notes from the tragic case of Brandon Teena, its existence and moral callousness to the suffering and pain that it causes can result in very real atrocities and even death. Transphobes should stop trivialising this suffering by using the derogatory phrase "bathroom bills." It is grossly insensitive and inhuman.
Recommended: Bird, Jo --- "When Sex Means 'Condition' or 'Impairment': Evaluating the Human Rights of Transgender and Intersex Peoples"  SCULawRw 3; (2001) 5 Southern Cross University Law Review 1 Karen Gurney: "More? You Want More? Of Course I do: Transsexualism and Birth Certificates: Changing Records or Attitudes" Flinders Journal of Law Reform: 2005: 8(2): 209-233: http://www.austlii.edu.au/au/journals/FlinJLawRfm/2005/13.html Politics and religion commentator Craig Young - 3rd June 2014