Roundtable consultation on discrimination on the basis of sex and/or gender identity - Melbourne
Summary of Proceedings
9 November 2010: 6pm – 8.30pm
1 Introduction
On 9 November 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 at the offices of the Victorian Equal Opportunity and Human Rights Commission in Melbourne. 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’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 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
In the first session, Meredith Turnbull asked participants to name any benefits in federal anti-discrimination laws prohibiting discrimination on the basis of sexual orientation or federal law prohibiting vilification and harassment on the basis of sexual orientation. She also asked participants to describe any examples of situations where federal protections are needed because state and territory laws do not provide adequate protections. Participants identified benefits on a range of issues including:
(a) Benefits of legislation
Observations included that:
- Governments have an obligation to lead within our society. The Tasmanian situation shows how anti-discrimination laws can have a major impact on attitudes within a society. The Federal government should not sit back and say that it is the will of the community. The government needs to show leadership in enacting visionary legislation that is about celebrating people and this will have a filter down effect.
- The benefits of federal legislation could be summarised as keeping people alive, healthy, happy and able to achieve fullest potential as human beings. The Transnation Report found that 84% of transpeople had experienced discrimination at least once in life. There was a direct link to depression, self-harm and suicide.
- For trans people and intersex people, there are currently a large number of ‘holes in the net’ for people to fall through. Federal legislation can make sure that there is one set of consistent rules that would cover all people, regardless of geography. There is currently a significant lack of legal protection for a trans person.
- Federal anti-discrimination laws could also protect against internal discrimination (ie. discrimination from within the LGBTI community as there are many different sub-groups).
- There is a need for federal anti-discrimination law on the basis of intersex or sex and/or gender identity as it is a litmus test for approaches to discrimination in Australia. Everyone stands to benefit from such reform.
- If there was an anti-discrimination law where it was illegal to discriminate on basis of being intersex, Australia would be only the second country with such laws, after South Africa, enabling us to be world leaders.
- There are a number of cases where personal information has been disclosed to great negative effect. Privacy legislation is not as effective as it should be. Anti-discrimination law could possibly deal with issues of privacy and inappropriate disclosure of status.
- Effective anti-discrimination law could make people question whether it is correct to impose surgery on intersex children.
- The culture towards women has changed because women have rights under the Sex Discrimination Act. Anti-discrimination laws will challenge the culture in organisations that discriminate.
Some references were made to state and territory laws and initiatives:
- The Victorian Police make a significant effort to be LGBTI-friendly.
- Federal law could only improve on state and territory law. In South Australia, laws have gone downhill rapidly in the last 10 years. South Australia is probably the worst state in terms of legislation. There is only a token show of support. Federal law would put pressure on the states. It is the only way to make states accountable.
- All state legislation around changing identity currently requires irreversible surgery, in contravention of Yogykarta Principles. If there was federal legislation that was in accordance with Yogykarta Principles, it would serve as a basis for challenging state legislation. Practically, it would enable a person who has lived as a man for 18 years to have his identity as a man recognised, even though he cannot have surgery on his reproductive organs for medical reasons.
(b) Examples of discrimination
A number of experiences of discrimination were shared:
- An interstate truck driver transitioned while on the job. She drives to Melbourne and is horribly harassed and abused by a client there. The ADCQ said that they can not help because the discrimination is happening in another state. Federal legislation would be very beneficial in this situation.
- A trans woman was in a heterosexual relationship for 15 years. She has huge difficulties with Centrelink who will not recognise her as a woman because for medical reasons she has not been able to have surgery.
- In Western Australia, a person with an ovarian cyst went to hospital and was thought to be male and treated for appendicitis. He could not get a Medicare rebate for treatment of an ovarian cyst.
- A participant applied for a job with a Commonwealth government agency. It was an on-line application, followed by a room interview, then a lengthy psychological test. At the in-person interview (the first opportunity where her name could be linked to her face), the selection panel could not take her seriously and she did not get the job.
- A number of people also raised issues of not being identified as the correct sex on flight boarding passes, in hospitals, and by government agencies including Centrelink and Medicare. These people fear the risk of violence and discrimination if their sex or gender history is revealed.
- Many attendees described physical assaults against themselves or their property, including having rocks thrown through their window in a country town; having a rubbish bin thrown through the window of a car; being physically abused by a cardiologist; having every panel on a car scratched.
- When transitioning 13 years ago, an attendee was attacked every day for two weeks. Bolts and rocks were thrown on her tin roof. She had to move as the police said they could not do anything.
- An attendee said a pedestrian put their fist through the drivers side window, smashed it and punched her in the side of a head six times and then walked off. The combination of anti-discrimination laws,, anti-vilification laws and education would stop some of this.
- An attendee said she does not get support from her university to do gender research. She has given up four years of a PhD because the university is hostile to her research.
- A person was placed in a male ward in a local hospital. When the receptionist was asked why she was on a male ward, the receptionist replied “because that is how we see him”.
(c) Statistics, monitoring and data collection
- An attendee noted that in the Transnation Report conducted a few years ago, there is a correlation between the number of experiences of harassment, intensity of harassment and negative outcomes, particularly on measures such as depression.
- The section of the study that provided the most passionate discussion was the section on documentation and federal government agencies such as Medicare and Centrelink. The passport is seen as the ultimate document of identity and it is very frustrating that people require surgery to change their passport to reflect their self-identification.
(d) Vilification
The following issues were raised about vilification and hate crimes:
- There is a vilification case in Queensland called Menzies & Ors v Owens which concerned a bumper sticker that said ‘The only right that gays have is to die’ with a reference to Leviticus. Four women took him to court for vilification. A plaintiff was unsuccessful because she identified as a ‘transgender male to female bisexual’ and the judge found that she was not covered by someone saying ‘the only right gays have is to die’.
- Hate crime is not defined and it needs to be addressed by federal legislation. Some of the examples discussed are beyond vilification and would constitute hate crime.
- In one part of Tasmania, eight cases of neighbourhood hate crimes were reported to the police. The police did not know how to deal with it and treated them as domestic violence cases.
(e) Intersex
The unique problems encountered by intersex people were discussed:
- The medical system is absurd for intersex people. People who have breasts and identify as female but have not had surgery below the waist are classified as male.
- Trans and intersex people come to the same conclusion that the medical system needs to be reformed regarding surgery but from different perspectives. Intersex people want to stop forced surgery and trans people want increased access to medical benefits for surgery.
- Caster Semenya was a runner who was thought to be intersex by her competitors. The Daily Telegraph newspaper published that she had Androgen Insensitivity Syndrome and revealed her private medical details. This should be treated as vilification because she is intersex.
- The lack of protection for intersex people in federal legislation breaches fundamental human rights such as the right to non-discrimination.
- Intersex should be covered under the Sex Discrimination Act as it is a way of being sexed.
- “I don’t identify as being intersex. I was born intersex. It is not my identity. It is how I was made.”
Intersex was discussed in further detail under terminology.
(f) Other considerations in developing legislation
A number of other comments were made:
- Freedom of association, freedom of political expression and the right to privacy should be protected by federal laws.
- The definition in the US law is attractive – everyone is subject to persecutions and penalties for stepping outside gender binaries. Young people growing up in a system where there is better protection for gendered expression and behaviour will benefit everyone.
- Laws need to be both specific and enforceable. The Victorian Charter talks about civil and political rights but there is no legal redress if they are abused. Social, economic and cultural rights should also be enshrined in legislation, preferably in the Constitution so they can not be removed easily.
- Canada pays for gender reassignment surgery in the Canadian Defence Force ‘otherwise it would be discriminatory.’ It is simply not an issue in Canada. The cultural difference is also reflected in the legal framework.
- When you weigh up the cost of discrimination in physical, mental, emotional value, this outweighs the cost of all legislation at a state and federal level.
- Any protection in legislation is only as good as those people working in agencies charged to administer it and enforce it. Without this, the legislation is merely words and they are meaningless without action.
2.3 Session 2: Terminology
A range of views as to appropriate terminology that should be used and terminology to be avoided were expressed. Below is a summary of the various views.
- Intersex is a scientific term that refers to people who have differences in sex anatomy. Hermaphrodite is not a correct term. For intersex people, the terms ‘sex and/or gender identity’ and ‘sexual orientation’ are all problematic. Intersex refers to physical differences of sex; it is not just a question of identity. Intersex should be mentioned specifically in legislation so it is not forgotten.
- The second preference after ‘intersex’ would be the phrase ‘indeterminate sex’, although this is slightly uncomfortable as sex is not indeterminate, it is intersex.
- There are lots of different lesbian identities (e.g. lesbians born female and raised as girls).
- The South Australian government used the phrase ‘chosen gender’ and this is highly offensive. The belief that gender is socially constructed is a myth.
A significant number of participants supported the use of the following three phrases:
- sex characteristics (or intersex) – this allows any distinction between identification and medical anatomy to be irrelevant
- gender expression
- gender identity
Some people said that they would prefer ‘sex and gender diverse’. Although this phrase is indeterminate, this is part of the attraction and it does comprehend a lot of the variations in sex, gender and identity.
Other people said that although they liked ‘sex and gender diverse’ as a descriptor, they were unsure whether it could be adequately articulated in a law.
Terms that were disliked included:
- Transsexual – it has different meanings in different parts of the world.
- Transgender - it is inaccurate as people can not transition genders. Transgender also has different meanings in different parts of the world.
- Gender history - people do not want to be reminded of their history.
- Gender reassigned - far too vague.
- Recognised transgender people - recognised by whom?
- Some people also expressed dislike at the term ‘queer’, although there were differences of opinion on this term.
It was suggested that terminology should not be chosen by legislators; it should be chosen by the community through roundtables, consultations, surveys etc. However, there is not much consensus in the LGBTI community about terminology. Whichever term is chosen, there is always going to be somebody who does not like it. As a guide to choosing appropriate terminology, the following suggestions were made:
- It would be good to choose terminology that could carry beyond Australia in a global sense.
- In Tasmanian law, there is protection from discrimination on the basis of sex and on the basis of gender. However, these are not understood in the way we are talking about. It is necessary to be very specific so it actually sends a message and causes cultural change. The protection needs to deal with the past, present and the future.
2.4 Session 3: Exemptions
There was a short discussion about the nature of appropriate exemptions if federal anti-discrimination laws were created. The following comments were made:
- There are no general exemptions in Tasmania (although these laws do not specifically cover intersex people).
- The person and their behaviour should be distinguished. The Church accepts everyone and educates people about behaviours based on their beliefs. The Church should not have to employ people in positions of influence who would teach contrary to their moral beliefs.
- In response, another attendee said it was dangerous to separate a person from their behaviour – gender identity is who I am.
A number of comments were made about the impact of religious exemptions on LGBTI people:
- People questioned why there should be any exemptions for churches and other religious groups as it would deny spiritual rights to LGBTI people.
- The current exemptions that are provided to faith based organisations are too broad.
- An attendee noted a story on television about a person who put his partner into an old age home run by the Catholic Church. He did it for his partner’s best health at the time but it was enormously painful to not be able to touch his partner of 40 years in the last 18 months of his life because of the fear of discrimination. It is respectful to appreciate the need to educate according to the teaching of the faith but one should also acknowledge the fear that is created.
- In Victoria:-
- 30% of high school students are in non government schools. The vast majority of these schools have religious backing in some way. LGBTI people are often excluded from that environment and that breaches human rights.
- There are exceptions and exemptions. Exceptions exist for religion, sport and some other things. There is an issue about the applicability of International Olympic Committee standards to transgender people playing local sport.
- The case of Cobaw Community Health Services Pty Ltd v Christian Youth Camps Ltd & Anor [2010] VCAT 1613 shows that religious groups do not have a carte blanche to discriminate.
- In an independent survey, 85% of Australians across virtually all demographics want anti-discrimination legislation on this basis. The Commission should consult with religious organisations and other Christian denominations who do not want exemptions.
- Exemptions promote opportunities to discriminate – allowing exemptions now teaches the next generation to continue discriminating.
2.5 Session 4: Other actions to protect the rights of LGBTI people in Australia
Participants provided a range of comments about other actions that could be undertaken to promote the human rights of LGBTI people:
- In relation to healthcare:
- There is a need for urgent Medicare reform of the funding of surgery. Some attendees suggested surgery should be free whilst others suggested low interest loans should be available. This would save a large number of lives and a significant number of mental health problems.
- The federal government needs to take into account the effects of the Unique Medical Identifier System – where every health provider shares information. There were concerns about patient’s information being shared without their knowledge. This may have particularly adverse consequences for LGBTI people.
- The Sex Files Report is one of the most enlightened, amazing documents ever written. It needs to be implemented and trans organisations need to be properly funded.
- It should be optional to put a sex or gender marker on forms. Furthermore, women should not have to disclose marital status.
- There is a need for adequately funded education programs that recognise and celebrate sex and gender diversity in schools.
- There should be a ministerial advisory committee tasked with LGBTI issues.
- The issues with Centrelink and Medicare and changing gender identity on government forms needs to be addressed.
- There should be structured counselling and psychological coverage through Medicare with social workers trained on what LBGTI actually means and how to appropriately deal with people.
- There should be funding for proper gender centres in every city with at least one trained gender counsellor.
3 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.
