Roundtable consultation on discrimination on the basis of sex and/or gender Identity - Sydney
Summary of Proceedings
29 October 2010: 6.00 pm- 8.30pm
1 Introduction
On 29 October 2010 the Australian Human Rights Commission (the Commission) hosted a roundtable as part of its consultation on protection from discrimination on the basis of sexual orientation and sex and/or gender identity. The roundtable was hosted by Catherine Branson QC (President of the Commission) and was held in the Hearing Room at the Commission in Sydney. Due to the complexities of the issues involved, the Commission engaged an external consultant, Meredith Turnbull, who has specific expertise in this area to facilitate discussion at the roundtables.
1.1 Overview of consultation
Currently federal law protects against discrimination on the basis of race, sex, disability and age. However, there is little protection in federal law, unlike in state and territory laws, from discrimination on the basis of sexual orientation and sex and/or gender identity. The Commission has called for federal protection from discrimination on these grounds for many years.
This consultation is considering the possible inclusion of protections
against discrimination on the basis of sexual orientation and sex and/or gender
identity in federal anti-discrimination law.
The consultation Discussion
Paper outlines the issues for consideration and lists the questions that were
the basis of discussion in the roundtable.
2 Summary of roundtable discussions
The content of discussions at the roundtable is summarised below. Please be aware that this is not a verbatim record of what was said. The comments have been categorised under headings and do not necessarily reflect the order of proceedings.
2.1 Introductions, background and purpose of roundtable
Catherine Branson QC, President of the Australian Human Rights Commission welcomed participants. She observed that:
- The Commission is committed to the protection and promotion of the human rights of people of all sexual orientations and of diverse sex and/or gender identities. The Commission has done significant work in this area in the past, such as the Same Sex: Same Entitlements report and Sex Files.
- The Commission has been concerned for many years that there are few protections in Commonwealth law from discrimination on the basis of sexual orientation and sex and/or gender identity. The harmonisation and consolidation of Commonwealth anti-discrimination laws and the development of a National Action Plan on Human Rights as part of the Human Rights Framework provides an excellent opportunity to consider the possible inclusion of protections against discrimination on the basis of sexual orientation and sex and/or gender identity and other measures which might further protect and promote the human rights of (lesbian, gay, bisexual, trans and intersex) people.
- The Commission greatly appreciates the work of Anna Chapman from the University of Melbourne in writing the project Research Paper. The questions in the shorter Discussion Paper, based on Anna Chapman’s paper, will form the basis of discussions.
- The purpose of the consultation is not to come to any conclusions or reach consensus. The Commission will undertake to include the range of perspectives expressed in its summary report to the Attorney-General and his department. The two representatives from the Attorney-General’s department are present in an observer capacity only.
- The closing date for written comments is not until Friday 26 November 2010 so anything that is not able to be adequately discussed can be submitted in writing.
Meredith Turnbull outlined the ground rules for the discussion, most importantly, that discussions would be conducted under Chatham House rules: participants may report the content of discussions to those not present but should not attribute views to any particular individual.
2.2 Session 1: Benefits of federal anti-discrimination law prohibiting discrimination on the basis of sex and/or gender identity
Meredith Turnbull asked participants to name any benefits of federal anti-discrimination laws. Participants identified benefits on a range of issues including:
(a) Addressing discrimination
Several participants noted that protection against discrimination on the basis of gender identity; gender expression and sexual formation or biological characteristics should lead to a substantial improvement in the quality of life for a significant proportion of the population. Other observations included that:
- It will benefit the entire Australian community whether they are different or not. Every human being has gender expression.
- Uniform legislation will educate and break down fear about diversity generally. It will allow a discussion to be had, for children to be diverse without being vilified and to go to school without being persecuted.
- It is important to include Christian organisations in the discussion. Uniform legislation will allay fear and ignorance.
- Anti-discrimination law is an important element in the campaign for equal rights for intersex, sex and/or gender diverse people.
- One of the biggest outcomes of federal anti-discrimination legislation, if done properly, is that it will break the perception of the binary notion of sex and will enable the Australian Bureau of Statistics (ABS) and other government departments to recognise the difference between sex and gender.
- The majority of people are deeply closeted because of the degree of discrimination they experience. Decent anti-discrimination legislation will help these people live full, open and ordinary lives. It was also noted that every culture has transgender people. It is nothing new, it is found in most religions including being mentioned in the bible (Mathew 19.12).
- There is discrimination in employment and access to housing, education and health services. Discrimination laws would be a step in the right direction in addressing these issues and will benefit individuals and the whole of society.
- One participant who identified as Christian noted that there needs to be community education about the issues discussed. He also expressed concern that LGBTI rights might impinge on Christian group rights.
(b) Examples of discrimination
Some participants gave examples of discrimination that they have experienced:
- It is my understanding that there are no laws against harassment based on gender identity. In the last month I have been harassed numerous times because I am visibly sex and/or gender diverse. I have been harassed by people on the street and by people working in establishments I have entered. It is really scary if there are no laws against people harassing you for being gender diverse. There is essentially nothing you can do about it. This makes the public sphere a very unsafe place for a lot of intersex, sex and gender diverse people.
- This is something personal. Some years ago I had lump in my breast so I went to see a doctor. The doctor referred me to a specialist and they said to me you can’t come in today as some of the women might be scared. I was the one with the lump in my breast. I was terrified. That is discrimination that should not have happened.
- Concerns were raised regarding discrimination of people with transsexualism and the issue of young people being required to get a court order before they can get treatment. Young people in this situation often self harm or suicide due to having therapeutic medical treatment being denied purely on the basis of a mistake by a court.
(c) Statistics, monitoring and data collection
During the consultation statistics regarding the number of people that could potentially benefit from federal anti–discrimination legislation were referred to:
- Research into transsexualism by Lyn Conway identifies that it could be as high one in every 500 people. Estimates for non-transsexual transgender are two percent from the American Psychiatric Association and the highest level was a school in Thailand where 10-20 per cent of the population were transgender.
- According to a Queensland geneticist 4% of the population are intersex. A significant number are having unethical and unjustifiable surgical procedures that could otherwise be delayed until the child is old enough to give consent. There is something like a one in three disaster rate. This needs an immediate moratorium.
Several participants also noted the benefits of collecting census data relating to sex and/ or gender identity, including that:
- The ABS will no longer be able to say they cannot record your sex.
- If statistics are used then they can identify gaps. By not collecting data it is almost like they deny we exist then you don’t have to provide any services.
- Trends could be identified such as transgender or intersex people having good qualifications but low incomes, shortened life expectancies and problems with housing.
- There will be flow on benefits relating to the collection of data. This is because to be effective you need monitoring of wellbeing and of how effective the legislation is.
(d) Reducing violence
Observations included that:
- With proper anti-discrimination legislation the epidemic of violence would be properly addressed. Queensland statistics released earlier this year indicated that 38% of transgender women have been assaulted with a weapon and 46% have been assaulted without a weapon. If those kinds of statistics occurred in any other sector of the community it would have been headline news nationally.
- An Australian Capital Territory online survey for World Aids Day identified the biggest grounds for discrimination reported was gender identity followed by sexuality. This was not expected as more complaints are received on sexuality. This is an untapped and underreported problem. Because the ACT has a Human Rights Act it underlines the right to dignity, equality and privacy to apply to people to have gender reassignment surgery before their records are altered. It should be a much lesser criteria than that.
(e) Young people
Observations included that:
- A report of children being vilified at school by a teacher and being told to toughen up and be a man and that they are very ‘girly’.
- Providing anti-discrimination legislation opens up an avenue for young people to express their gender in appropriate ways and for institutions to recognise that the actions they take at this point and time are vilifying.
- The biggest benefit is that this legislation could provide a framework for institutions to respond to young people.
(f) Identity documents
Observations included that:
- There should be a much lesser criteria for people who want to get their documents changed than to have gender reassignment surgery.
- It is not clear what impact the Sex Files Report has had. There has been no response from the government. It is also not clear how they will manage and define critical terms in the anti-discrimination legislation.
(g) Vilification
Issues relating to vilification were raised by several contributors. It was noted that being nasty is not necessary vilification and that the current tests require incitement.
- Outing someone as trans is often the basis of ongoing discrimination and is not illegal and does not qualify as vilification. Talking about your co-worker who happened to be a man or a woman in a previous existence and presents as something different now is not proscribed at all. The law can only go a certain way in controlling the nature of human discourse.
(h) Intersex issues
Some participants raised the following concerns:
- There needs to be a focus on intersex issues at the federal level. The Marriage Act is a concern of ours (intersex). Legal opinions vary but we have been told that it is essentially illegal for intersex people to be married. There is a problem that an intersex person’s marriage may be dissolved which threatens their life and family. [Another participant claimed that it is legal for an intersex person to marry. This was clarified by the family court in Re Kevin by Justice Chisholm. This decision overruled a previous decision that prohibited intersex people access to a valid marriage. The Australian Marriage Act does not require people to consummate a marriage or be able to have children.]
- The banning of infant genital mutilation would not work at a state level and needs to be at a federal level.
(i) Federal government leadership
Several contributions identified how federal legislation would contribute to government leadership by saying:
- The introduction of anti-discrimination laws is a clear message from the federal government that we are a diverse society and that each individual in the whole complexity of how they exist has a role to play.
- Federal anti-discrimination legislation has an important symbolic value quite apart from the practical effects it might have. Not confident that it will lead to massive changes in societal attitudes towards sex and gender diverse people. This hasn’t been the case with state based legislation but it makes an important symbolic statement that the Australian Government thinks that it is not okay to discriminate against transgender people. At the moment the Australian Government does not make this statement.
- This could lead to discussions about why Medicare, Centrelink and other agencies place emphasis on whether you have a document with M or F. It could mount the case not just from the health impacts from Medicare or the human rights impacts from Centrelink, but from a place of leadership being set by the federal government that this is a direction that they want to move in.
- Importance of putting sex and/or gender identity on the agenda in the forum of the Human Rights Framework that includes education of public servants and the general public. This leads to broader societal change that that won’t come from anti-discrimination laws.
(j) Intersections between federal and state and territory discrimination law
Observations included that:
- A number of participants raised concerns about not wanting federal
anti-discrimination legislation to be weaker than state anti-discrimination
legislation and about the costs that could be associated with making claims
under federal anti-discrimination law.
- It is important that if there is to be a complete federal scheme that it does not detract from anything at a state level.
- A federal law should not be the lowest common denominator of the states. It has to be the highest watermark and there needs to be a tribunal base which is no cost.
- The federal system is much more cost prohibitive. If you add gender and sexuality into federal anti-discrimination legislation and this takes you to the Federal Court. In NSW there is access to a tribunal which is basically no cost and is a viable course of action.
- There are aspects of the state system that are good and more user friendly which could be lost if we go into a federal system due to our tiers of government. Obviously, if you are taking on a federal department you will use the federal system but we do not want to lose our capacity of what we can do in a state jurisdiction where you can only have costs awarded against you if it is fictitious and frivolous. This is in contrast to the Federal Court where if you lose you could face an order for thousands of dollars in costs.
(k) Related mechanisms
Observations included that:
- Expectations should not be limited to what anti-discrimination legislation can achieve as it needs to be coupled with other mechanisms that support legislation.
- There are symbolic values in legislation but there are also concrete mechanisms that can be attached to the legislation such as social action campaigns to combat homophobia and transphobia.
2.3 Session 2: Terminology
A range of perspectives were provided about appropriate terminology and terminology that should be avoided. Below is a summary of the range of perspectives:
- Terminology needs to be easily identifiable and understood.
- Terminology must cover the identity of a person’s partner.
- Several contributions noted that people need protection on the basis of their previous gender.
- One participant noted that the two things that are discriminated against in people of difference are diversity in gender expression (behaviour that is discriminated against) and diversity in sexual formation (identify the characteristic that leads to discrimination).
In summary, a range of participants supported the inclusion of terminology on the concepts of:
- biological sex characteristics
- gender expression
- gender identity.
(a) Biological sex characteristics
A number of participants observed that rather than diversity of sexual formation the legislation could refer to diversity of sexual characteristics.
- Everyone has a sexual characteristic – these definitions cover every human being. Participants agreed that legislation should include protection on the basis of gender expression.
- Sex characteristics should cover people who have altered their sex characteristics as well as birth characteristics.
- The inclusion of biological sex characteristics could provide some protection against discriminated based on someone’s prior status because unless someone adopted every single biological sex characteristic of their new sex then that would also provide protection.
(b) Gender expression and gender identity
Observations included that:
- It is important to make a distinction between gender expression and gender identity.
- Several participants affirmed the inclusion of protection from discrimination on the basis of gender expression. Gender expression is subjective and refers to how other people see someone and the assumptions they make on that basis.
- Several participants affirmed the value of the inclusion of protection from discrimination on the basis of gender identity. Gender identity is how that person perceives themselves and about the right to self identify.
- The term gender identity should refer to a person that identifies as a particular gender or sex by assumed characteristics of that sex, living or seeking to live as that sex regardless of sex otherwise recognised by law. This last point is very important in legislation so you decouple the definition in discrimination law from any legal definition in sex identification documentations.
- An example was given of a trans guy who identifies as a man and is recognised as a man but is discriminated against because someone knows he is trans. Then the basis of that discrimination would not be covered by his gender expression (as it is in line as he identifies as a man) but could be covered by his gender identity (as a trans man).
- Terminology should cover not just the act of being a particular sex/gender identity but also the assumption/perception/association to a particular sex/gender.
- Anti–discrimination laws must protect the agency of people and the right to self-determination. There is a long history of having to be considered ‘trans’. We believe that the terminology should be broad and intersex and sex and/or gender diverse covers all of us.
(c) Intersex terminology
A number of participants made comments regarding intersex terminology, including that:
- The expression ‘identify as intersex’ is inaccurate. Most intersex people identify as ‘man’ or as ‘woman’. They do not identify as intersex. Intersex is a biological fact.
- ‘Indeterminate sex’ needs to be defined. But it is a loaded term. An intersex person knows what sex they are but who determines who is of indeterminate sex?
- An intersex child seems to know what sex they are by about age of three. Most intersex people identify as man or women some as both some as neither.
- An organisation uses intersex and sex and/or gender diverse – no matter how broad umbrella terms are some will always leave people out.
(d) General comments regarding terminology
Observations included that:
- There are terminology debates in the community. For the purposes of this legislation terminology needs to be legally workable, simple and cover everybody. It should not create a hierarchy where terms are invented that need to be defined and people who want to make a complaint have to prove that they meet the criteria or they will get a second rate level of protection.
- The term ‘recognised transgender’ (used in NSW) should not be included. This term was used to make sure that part time ‘gender benders’ were not protected. This means that more than 99% of trans people are not protected in NSW legislation.
- The term GLBTI should not be used as it is insulting.
- The use of the term disorder of sexual development is very offensive.
- Protection should be on the grounds of sex and gender expression, rather than ‘intersex’ or ‘transgender people’.
- There are a lot of people who try to tag sex and/or gender identity onto gay politics. Intersex and trans people are a very small minority with complex issues. That body must determine their future. Gay people must back off – it is far too complicated for most gay people to understand. Yes, there is overlap but the kind of protection that the intersex and sex and/or gender diverse people need is very particular.
- It is important to not just listen to the volume of gender diverse people but ensure that the smaller voices of people with diverse sexual formation are heard.
- People do not exist in isolation with their identities. Need to look at all our discrimination acts and better enforce them. Need to view intersections race, class etc. We should consider federal anti-discrimination protection based on sex worker status.
(e) The legal recognition of sex in documents
Participants raised a number of concerns regarding the legal recognition of sex in documents, including:
- That a person who remains married after surgery cannot change their sex on identity documents.
- That changing the notation of sex on passports is considered on a case by case basis.
- An example was given of a situation where a person had been given enduring power of attorney over a mother’s will. The bank would not accept it because the enduring power of attorney was in her male name, as was her birth certificate and passport.
- That the Sex Files Report was not fantastic but the best thing Australia ever had in this direction. The report noted that every person has the right for their sex and/or identity to be recognised and respected.
- Sex Files was fundamentally flawed because it put legal identity issues ahead of life and death issues of medical treatment.
- The function of legal sex markers is discrimination. It categorises people into two boxes and does not cover everyone, and there is little justification for it, although claims are made about security issues.
- Currently the Australian legal system only recognises male and female. There is danger in being characterised as no-sex because it doesn’t have a meaning in law and therefore no legal status. Biological diversity is not reflected in the legal system.
- The legal recognition and recording of sex and protection from discrimination are fundamentally different. If discrimination protection is framed in the terms we are talking about it does not really matter what someone’s legal sex is.
(f) General comments about anti-discrimination law in other jurisdictions
There were a broad range of contributions regarding anti-discrimination law, including:
- Federal legislation must not lead to a worse result than we have now under state anti-discrimination laws.
- The NSW Anti-Discrimination Act uses the term ‘recognised transgender’ – the level of protection provided was based on what the parliament could be persuaded to accept. They wanted to make sure that people didn’t go backwards. They had surgery as a requirement as they didn’t want people going from male to female or vice versa.
- NSW state law for ‘recognised transgenders’ is the best rights in the world as you are fully legally your reassigned sex. This should be the goal under any federal law or uniform legislation. The NSW Act includes anyone who identifies as transgender and it is a broad definition. Once recognised transgendered you get full rights.
- The majority of transgender people don’t live in the other sex fulltime. The majority lives across and between genders. The question was raised about how this works in the NSW legislation particularly regarding the Hansard reference to ‘part time’ gender benders as the majority of cross dressers, bi genders, gender queers and the different terms to describe the non binary gender people live between and across genders.
- At the moment there is no real protection for intersex people in Australia. Children are still being abused. Any discrimination laws must include children and must be able to be applied retrospectively to children with no time limit.
2.4 Session 3: Exemptions
There was a short discussion about the nature of appropriate exemptions if federal anti-discrimination laws were created, including the following observations:
- A faith based institution’s religious aspect should be separated from the charitable act it performs. [However, one participant said that if you remove the religious component you lose the motivating factor.]
- It is critical that anti-discrimination law applies to religious organisations that receive government funding to deliver those chartable services.
- Exemptions should be given on a finite basis. People seeking exemptions have to make a case to a Commissioner. Until this issue is addressed by the Australian community the real crux of discrimination in schools and the workplace won’t be addressed.
- Christian organisations that think they have a right to discriminate should look at the words of Jesus Christ who said ‘whoever believes shall be saved’. Jesus taught inclusion, everyone is allowed in. People should be educated on how important the inclusive love of Jesus Christ is.
2.5 Session 4: Other actions
Participants provided a range of comments about other actions that could be undertaken to promote the human rights of LGBTI people:
- Education should be started early that there are males and females and some people do not fit into those categories. Discrimination is learnt. When I was in sex education in high school we were taught that there were males and females. It was confusing as I was obviously not male or female.
- One of the most important things that we can do is have a Human Rights Act that is fully compliant with the Yogyakarta principles.
- It is absolutely essential to include an anti-violence campaign.
- The federal government needs to respond to the Sex Files Report.
- The Commonwealth needs to decide how they are going to deal with identity documents. If the primary document is to be a birth certificate then they need to take a lead in coordinating how sex is determined on that document.
- Education for Centrelink.
- Access to Medicare and rebate to claim procedures
- The federal government needs to fund services targeting the people we are talking about.
- There is discrimination in health care services for sex and gender diverse people. Women’s services and gay and lesbian services are not particularly welcoming places for sex and gender diverse people. There should be funding for services managed and controlled by sex and gender diverse people.
- Federal policy and programs should make explicit proactive efforts to ensure they use anti-discrimination principles.
- There should be an anti–discrimination campaign around transphobia and exclusion of intersex people.
- There should be funding of the Australian Human Rights Commission for a Commissioner to work in this area.
- There should be a clause in a federal anti-discrimination law that comes into effect two years after the legislation is passed to override state and territory laws that remain inconsistent the federal law.
2.6 Conclusion
The Australian Human rights Commission thanked participants for their participation and outlined the process for moving forward. It was noted that many important issues had been raised in the roundtable that will be included in the final summary report. Written submissions are open until 26 November 2010. The Commission will then consider whether any further specific discussions are necessary and will conduct them as required. The final summary report will be presented to the Attorney-General as early in 2011 as possible.
