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Polare 63 >> Article 4
The Sex/Law Tango Tangle
by norrie mAy-welby
Social progress is so often a matter of three steps forward and two
steps back.
In 1996, we (transsexuals) were included in the Anti-Discrimination
Act of NSW, but only "recognised transgender persons" were guaranteed
equal treatment with others of their gender. To be a "recognised transgender person",
you must change your birth certificate, which requires (A) being born
in a State (or country) that allows for such a change, and (B) satisfying the
prerequisites for such a change, which means having had irreversible
surgical procedures for the purpose of living in the "new" gender. This may mean a full
vaginoplasty or penoplasty, or be as "simple" as a hysterectomy or
hormone implants.
In 2004, it was established that in Australian Federal law, the legal
sex of a person is not determined solely by the sex assigned at birth,
but by the sex they are now, which is influenced by how they are seen by their social
environment, and by supporting surgery. This was a judgment by the
Full Bench of the Family Court, re: Kevin, in which it was held that a transgendered man
(who had not had full penoplasty, but had undergone some other
transsexual medical processes) was a man for the purpose of the Marriage Act.
This would seem to shift the drawing of lines for when transgendered
people must be considered legally to be of the sex in which they
present.
Yet there have been retrograde decisions too, such as the granting of
exemptions to allow Mission Australia and Edward Eager Lodge to
discriminate against transgendered people.
Mission Australia's exemption states that they may run women-only
services, but transgendered women are a kind of women, and I cannot
see how they are allowed to use the old criteria of "Recognised Transgendered Persons"
for the only transwomen allowed in, when In Re Kevin supersedes this
State law. re: Kevin says that what you are now is what you are now, not
necessarily what was assigned at birth, so a transwoman is a woman
even if her birth certificate is male.
Edward Eager Lodge accepts trans women and treats them as men, and
vice versa for transmen.
This is contrary to the principles of good welfare provision, where
the humiliation of needy people is no longer an accepted practice.
To add insult to injury, I have just been informed that SAAP
(Supported Accommodation Assistance Program), which funds many agencies
including Edward Eager Lodge, Mission Australia, and the Gender Centre, is asking all
agencies to report the sex of clients, with sex defined "as a
biological distinction between male and female, whereas gender is a self-identifying term. An example
may be in the case of a client who was born with male anatomy but
identifies as female. Under the new guidelines, that client should be recorded as
male". Of course this is contrary to the NSW law applying to "recognised
transgender persons" and flies in the face of the federal legal ruling of re
Kevin.
As SWOP's Transgender Project Officer, I am working with the Gender
Centre and SAGE (Sex and Gender Education) Australia to change the
exclusionary practices of Mission Australia, and against an extension of Edward
Eager Lodge's exemption, and to try and have the bureaucrats of SAAP
adopt a more respectful and legally appropriate practice.
On a brighter note, those transsexuals who were born in the UK can now
have their birth certificates changed to reflect the appropriate
gender. (See Polare 62 for more details, or go to
www.pfc.org.uk)
But Lord only knows what complications will follow the Federal
Government's amendments to the Marriage Act made last August, which
prohibit people of the same sex marrying in Australia, and render invalid in Australia any
marriage made by same sex couples overseas, but do not address the
question of marriages made heterosexually that become same sex by virtue of one
partner changing sex, or of marriages made heterosexually overseas by
partners who are classified as the same sex in Australia (due to the different
determinations of legal sex in different jurisdictions).
In Iran, transsexuals are now recognised as their self-identified sex
after sex-change surgery. But homosexuality (or any sex a pre-op trany
girl has with a man) still gets a wall pushed on top of you.
Not surprisingly, there is a reduction in the number of "in-betweenies"
(my frivolous term for people like me who are of ambiguous or
androgynous gender) or effeminate queens, and an increase in "women trapped in men's bodies"
seeking surgery and gender "normalisation".
Ah, wouldn't it be nice to just be accepted as a human being, without
having to have a "normal" Type A or B identity, or without having to
get universal agreement about what your sex or gender is?
On the plus side, glamorous transwoman Miriam charmed Big Brother in
Australia, while another transwoman won the UK series last year. More
and more transgender people are becoming visible in many varied fields, from
the glamour of TV to the grind of politics. I met Georgina Beyer a few
months ago, the transsexual woman who retired from showbiz to the country, became
interested in Council politics, and after being elected Mayor a couple
of times stood for election as the local Member of Parliament and was elected. Despite
the many legal and other challenges we face, there is room for us to
achieve in whatever fields we choose, without our trans identity limiting us.
The world is a changing place, but by and large most people are more
accepting of diversity than they may have been ten or twenty years
ago. There are still bigots, but they are fewer in number, and far less influential than in
bygone days. And enough of us have survived to build support for each
other, to grow strong and assert our right to exist on equal terms with anyone. We
know there's nothing wrong with who we are, even if who we are doesn't
fit nicely into other people's expectations or the standard sex categories. And, as
transgendered people, our liminal nature may even be a gift to the
world. The law, of course, remains an ass, but such is life.
Polare is published in Australia by The Gender Centre
Inc. which is funded by the Department of Community Services under the
S.A.A.P. Program and supported by the
N.S.W. Health Department through the
AIDS and Infectious Diseases Branch. Polare provides a
forum for discussion and debate on gender issues. Advertisers are advised that all advertising is their responsibility under
the Trade Practices Act. Unsolicited contributions are welcome, though no guarantee is made by the Editor that they will be
published, nor any discussion entered into. The editor reserves the right to edit such contributions without notification.
Any submission which appears in Polare may be published on our internet site. Opinions expressed in this publication do not
necessarily reflect those of the Editor, The Gender Centre Inc.I, the
Department of Community Services or the N.S.W. Department of Health.
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