Transgender Day of Remembrance

Transgender Day of Remembrance
Harmony Park, Goulburn St, Surry Hills
Edward Santow, Human Rights Commissioner

Acknowledgements

• Gadigal people of the Eora Nation

• Elders in the trans community, past and present. In particular, those people who have been victims of hate crimes and those who have faced, and continue to face, discrimination, vilification and harassment in the course of their everyday lives.

• The Gender Centre, supported by Inner City Legal Centre, City of Sydney, NSW Police Force, Queer Screen and Trans Sydney Pride.

Introduction

Today, on the Transgender Day of Remembrance (TDOR), we honour the memory of those trans and gender diverse people who have died in acts of violence due to hate crimes.

The right to live peacefully in a world free from violence is, perhaps, the most basic of our human rights. Living under the threat of violence is an affront to our common humanity. It is an even greater affront when the foundation of that threat is an attribute that is central to one’s identity.

As a cis-gendered white man, my life is relatively simple. I can merge easily into the landscape. I can lead a private life in public.

For many trans and gender diverse people, I realize that life isn’t nearly so straight forward. There’s infinite variety in how we humans present ourselves. And so it is shocking that some forms of that infinite human variety have been historically, and can still be now, dangerous.

A close friend once said to me: “It can be so achingly tiring to go through life as a member of the LGBTI community. I spend so much of my life meeting ignorance and fear, with love. And I have an ever-present anxiety that other people’s curiosity can turn, in an instant and without warning, to anger and violence.”

She went on to say, “As a teacher, my teaching didn’t stop when the children went home from school. I teach my parents, siblings and broader family; I teach my friends and acquaintances; I also teach people on the bus; colleagues; the man who works at the fruit shop. Even when people are just curious and friendly, it can be exhausting.”

I don’t know if my friend’s experience resonates with trans and gender diverse people here today; if you feel the burden of being a teacher for so much of your life.

Certainly, the rest of us need to be mindful of that burden. Curiosity is understandable, but at the foundation of a healthy community are acceptance, respect and love.

Access to healthcare

And so, in that spirit, I would like to talk a bit about the Human Rights Commission’s work in this area. Last year, we published a report titled Resilient Individuals: sexual orientation, gender identity and intersex status.

Our starting point was international human rights law. The human right to health is protected in a number of key international human rights treaties, including ICESCR[i] and the Convention on the Rights of the Child.[ii]  The right to health includes the right to access services on an equitable, non-discriminatory basis.[iii]

Our Resilient Individuals report identified a number of significant barriers that trans and gender diverse people face in accessing healthcare in Australia.[iv]  Key issues in respect of health include:

• necessary pharmaceutical and surgical procedures are not listed on the Medicare schedule;
• there’s a lack of publicly-funded, appropriately-trained medical specialists, particularly in regional, rural and remote areas;
• there are huge practical and financial problems bound up in the requirement that young trans people must apply to the Family Court of Australia for a court order to access stage two hormone treatment.[v]

Recent stakeholder engagements

In my first three months as Human Rights Commissioner, I’ve heard directly from trans and gender diverse people and their families about the consequences of these barriers on their life.

For example, in a visit to Melbourne last month, I heard from the parents of trans young people about the challenges they have faced in navigating the Family Court process to enable their children to access stage two hormone treatment. I know, as a lawyer, how difficult it can be for people to access the court system. Further attention, therefore, needs to be paid to the particular legal barriers that apply in this area, and whether they can be amended to meet the needs more effectively of trans young people and their families.

Only last week, I heard from a trans man about the difficulties he had encountered in accessing medical treatment in Australia, and the emotional and financial consequences of this process for him and his family.

Legal recognition of gender identity

The Resilient Individuals report also highlighted the ongoing barriers that trans and gender diverse people face in changing the legal record of their gender on official identification documents.[vi] There are important human rights at stake here, and these are recognised in the ICCPR.

They include:

• the right to non-discrimination (articles 2(1) and 26)
• the right to recognition before the law (article 16)
• freedom from arbitrary interference with privacy and/or family life (article 10(1))
• freedom of expression (article 19)
• freedom of movement and travel (article 12)

In most Australian states and territories people must provide evidence that they’re unmarried and have undergone some form of medical treatment, usually surgical intervention, to change the legal register of their gender or sex.[vii]

Additional barriers exist for trans and gender diverse young people if their parents are not willing to consent to changing the legal record of the young person’s gender.

Discrimination in employment, service provision and accommodation

Other work that the Human Rights Commission has done has highlighted serious and numerous experiences of discrimination on the basis of gender identity in a variety of different settings, including accommodation, service provision and employment.

For example, one person told the Commission that after he cut his hair and changed his name, his employer changed his employment type from permanent full-time to casual and told him that he was no longer “fit for full time work”.  When he challenged the decision, the employer responded, “Face it, you aren’t the girl we hired”.

These stories of discrimination are in line with complaints of gender identity discrimination that the Commission has received under the Sex Discrimination Act, which explicitly makes it unlawful to discriminate on the basis of sexual orientation, gender identity and intersex status.[viii]

Violence, bullying and harassment, particularly as experienced by young trans people

We know from the Commission’s own research and the research of others that trans and gender diverse people report disproportionally high rates of violence, harassment, bullying and exclusion related to their identity.[ix]  Rates are particularly high for trans and gender diverse young people.

For example, in a 2014 report, 66% of survey participants reported that they had experienced verbal abuse on the basis of their gender identity and 21% reported that they had experienced physical abuse on the same basis.[x]

Commission’s past work to protect and promote the rights of transgender people

The Human Rights Commission has intervened in two major court cases concerning the rights of transgender people.

The first of those cases was Re Kevin and Jennifer ([2003] FamCA 94). In that case, the Family Court affirmed the right of a couple to be married where one member of the couple (Kevin) had been originally assigned a female gender at birth but had since identified as a man.

The second case was Re Jamie ([2013] FamCAFC), which dealt with the right of a child and their parents to obtain medical treatment that would allow the child to live in her affirmed gender – as a woman.

Conclusion

Australia, much more than many countries, coheres around good, positive ideas – like the fair go and egalitarianism. These principles are at the heart of human rights and of events such as today’s.

Few, if any, of us here today ever met Rita Hester. Her tragic and violent death in Boston in 1998 catalysed the Transgender Day of Remembrance around the world. I’m proud to stand together with all of you to honour Rita, and all other trans and gender diverse people who have suffered violence.

Honouring these people means two things. It means pausing to think about their situations, their stories, the people they loved and who loved them.

It also means working as hard as we possibly can to consign to history hate, violence and other forms of injustice against trans and gender diverse people. In their place will be left a kinder and more respectful community.

Footnotes

i. United Nations Office of the High Commissioner for Human Rights, International Covenant on Economic, Social and Cultural Rights, GA Res 2200A (XXI), (16 December 1966, entry into force 3 January 1976), art 12. At http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx (viewed 14 November 2016).

ii.Convention on the Rights of a Child, GA Res 44/25, (20 November 1989), article 24. At: www.ohchr.org/en/professionalinterest/pages/crc.aspx. (viewed 14 November 2016).

iii.Office of the United Nations High Commissioner for Human Rights and World Health Organisation, The Right to Health (2008) 25 www.ohchr.org/Documents/Publications/Factsheet31.pdf.

iv.Australian Human Rights Commission, Resilient Individuals: Sexual orientation, gender identity and intersex status (Australian Human Rights Commission, 2015), 46-50.

v.Australian Human Rights Commission, Resilient Individuals: Sexual orientation, gender identity and intersex status (Australian Human Rights Commission, 2015), 47-49.

vi.Australian Human Rights Commission, Resilient Individuals: Sexual orientation, gender identity and intersex status (Australian Human Rights Commission, 2015), 50-54.

vii.Australian Human Rights Commission, Resilient Individuals: Sexual orientation, gender identity and intersex status (Australian Human Rights Commission, 2015), 50-54.

viii.Sex Discrimination Act 1984 (Cth) s 5B.

ix. Australian Human Rights Commission, Resilient Individuals: Sexual orientation, gender identity and intersex status (Australian Human Rights Commission, 2015) 54.

x. Smith et al., From Blues to Rainbows: Mental health and wellbeing of gender diverse and transgender young people in Australia (The Australian Research Centre in Sex, Health, and Society, 2014) 59.