Legislative Equality for Vulnerable Australians
Zach Richards
19.06.19
Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas)
On 10 April 2019 Tasmania passed legislation that will make life significantly easier for vulnerable transgender (hereafter ‘trans') people. The Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas), which received Royal Assent on 9 May 2019, amends a number of statutes including sections of the Births, Deaths and Marriages Registration Act 1999 (Tas),Adoption Act 1988 (Tas), and Anti-Discrimination Act 1988 (Tas) to remove a range of discriminatory legal bars against trans Tasmanians.
Following the amendments, trans Tasmanians no longer need to be unmarried in order to apply to have their sex recorded correctly in their birth certificates. They also no longer have to have sex reassignment surgery in order to have their correct gender recognised in their birth certificates, and those over 16 years of age can apply to have their self-identified gender recognised in their birth certificates without parental consent.
While the Australian Capital Territory passed similar legislation allowing birth certificate gender changes for trans people without surgical intervention in 2014, and all states and territories but New South Wales, Queensland and Victoria have passed comparable legislation, the primary reason the Tasmanian legislation stands out is because it also removes gender as a requirement in birth certificates altogether. As Dr David Cox, barrister and Chairman of the Law Reform Commission of Western Australia, articulated in reflecting on the effect of removing gender from birth certificates:
For the majority of the population it's not going to make one iota of difference...it's not going to affect the fabric of government, it's not going to affect the fabric of society. It's not doing anything really. But it's going to make life a whole lot easier for a small group of people.
In fact, the Commission was unable to think of a legal or practical or social reason why the amendments were negative.
As this post will explore, recognising the rights of one of Australia's most vulnerable minority groups - with one of the highest suicide rates, depression and anxiety rates, and highest levels of social exclusion and psychological distress as a result of mental and social stigma faced in nearly every aspect of life - is not ‘radical' or threatening to any sense of social or legal stability. To the contrary, it is humane, and creates important congruity between fundamental Australian legal principles to promote equality and the rule of law. Obviously, Australia is not alone in promoting equality and putting in place rights for the LGBT community, as detailed in this significant article on LGBQT, but it is arguably further behind than others. The importance of these laws is explored in the remainder of the post, which is structured as follows. First, I argue that without these Tasmanian-style reforms being adopted across Australia, trans people cannot achieve formal legal equality, which would both recognise their personhood and pave the way to achieving other types of equality. Second, I contend that these laws are necessary to produce consistency with domestic and international anti-discrimination law and internal domestic legal consistency between state and federal laws. Third, I explain that these laws reflect best practice legislative processes in that they draw rigorously on expert knowledge, whereby psychological and medical expertise provide the foundations for their scope and necessary social impact.
1. Legal Equality
Recognition of Personhood
It is no exaggeration to say that without laws recognising the rights of trans people to self-identify their gender, trans people in this nation do not have effective legal personhood. If someone identifies as female, despite being assigned male at birth for example, and they are unable to change their birth certificate to reflect their correct gender, they literally go about life each day with an unsettled legal status: one recognised haphazardly in some formal documents, in some services, and in some places of employment, but completely ignored and erased in others. The reason the Tasmanian laws are especially important here in the way they provide a choice to remove gender entirely, is that there are so many barriers and hurdles that trans people face in every area of life that even self-declaring gender can be an overly bureaucratic process; one that may be practically inaccessible for many marginalised trans people who cannot access the support to make these changes. Further, in the time between when they are attempting to self-declare their correct gender and when this is processed (if they are one of the lucky ones for whom this is possible and accessible) they effectively have an unsettled legal personhood which can induce discrimination in accessing a range of services and going about daily life, with long-lastingly negative mental health impacts.
For example, while under Commonwealth legal regimes trans Australians can change their passports and driver's licences to record their correct sex without needing surgical intervention, this is not the case across New South Wales, Queensland and Victoria where it is only possible to amend the sex in one's birth certificate after sex reassignment surgery has taken place. What this means, practically speaking, is that in some areas of life a trans person will be recognised as their correct self, whereas in others they will not. When it comes to getting married, for example, a trans person who has not had their sex changed in their birth certificate cannot get married as their correct gender. When it comes to being buried a trans person may have lived their entire life as their correct gender, but upon death if their birth certificate records them as having their birth sex still, their preferred clothes may be removed, the little dignity that they had may be stripped from them, and they may be commemorated as their incorrect gender.
For a cisgender person, it may be difficult to comprehend the way that having one's incorrect gender recognised could amount to stripping that individual of their fundamental personhood. But imagine what it would be like if we required a comparable process in order to authorise name changes. Currently, for an individual to change their name with the NSW Births, Deaths and Marriages Registry, for example, they must simply lodge three certified identification documents showing their new name alongside their old birth certificate. Imagine instead that Anna Smith wants to change her name. She applies to do so through the appropriate bureaucratic channels and the decision-maker, Susie Stone, tells her that the only name that she can change her name to is Susie Stone. It's unlikely that this is the name Anna Smith wants to adopt, but from the perspective of the decision-maker Susie Stone, Anna's preferences as to her new name are irrelevant. Susie Stone cannot conceive that Anna Smith would want to be called anything other than Susie Stone, and in fact requires that in order to be accepted as a person with a changed name, she change it to be the same as that of the decision-maker. This would be a clear imposition of Susie's personhood onto Anna, and is ironically antithetical to the whole process of allowing Anna to be formally recognised in her preferred name.
This absurdity, cruelty, and erasure of identity is exactly how the laws regulating trans identity in birth certificates predominantly operate across New South Wales, Queensland and Victoria: they are a core problem that is being addressed and removed through the Tasmanian reforms. When a cisgender person tells a trans person that they must go to a doctor to look more like a cisgender person before they can be recognised as the transgender person that they are (they will never, no matter what healthcare they can eventually afford, actually be cisgender), the process is clearly discriminatory, illogical, absurd and inhumane.
Equality of Treatment, Opportunity and Outcome
In addition to recognising basic personhood, the new laws are also important in that they pave the path to equality of treatment, opportunity and outcome for trans Tasmanians.
There are three types of equality that underpin anti-discrimination law: equality of treatment, equality of opportunity and equality of outcome. Equality of treatment is achieved when discriminatory legal barriers applying to one group of individuals are removed from legislation and both the traditionally excluded group and the majority group have the same formal legal entitlements (such as, for example, women having the right to vote). Equality of opportunity is where both groups of individuals – the traditionally marginalised group and the majority group – are given the same practical opportunities across society, including in healthcare, education, sport, access to services and employment. Equality of outcome is where traditionally excluded and marginalised individuals achieve the same outcomes in life as majority groups – including in health, wellbeing, life expectancy, educational outcomes, income, social connection and overall living standards. Equality of opportunity for an overall group is very unlikely to be achieved if equality of treatment has not been put in place and equality of outcome is very unlikely to be achieved if both equality of treatment and equality of opportunity have not been achieved.
At times, an exceptional individual from the discriminated-against group will stand out and manage to achieve equality of outcome with members of the majority group – even where they are up against formal legal inequality and inequality of opportunity on a daily basis – but often this is only the case if that individual has some other significant element of advantage over other members of the minority (and majority) group, for example that they do not experience intersectional disadvantage. For example, the individual who experiences equality of outcome despite contending with formal inequality and unequal access to opportunities and services may experience other elements of advantage by virtue of a privileged education, white privilege or other particularly exceptional competencies such as outstanding intellect or social skills that help level the playing field.
Until Australian law across the states, territories and Commonwealth adopts a suite of changes similar to those in the Tasmanian laws as a basic starting point of human recognition, trans Australians will continue to experience inequality of opportunity and outcome in every area of life.
2. Internal Legal Consistency
It is important to have a legal system that promotes internal consistency within and between laws. From a technical legal perspective, the formal discrimination that currently exists against trans people within many states' laws is a reflection of archaic internal legal inconsistency. It blatantly disregards the rule of law, which is a central foundation of our legal system that gives citizens faith that they are being democratically governed under a non-arbitrary legal system. This is the case in a number of respects.
Consistency with Domestic Anti-Discrimination Laws
For one, the Tasmanian changes promote the rule of law and the internal consistency that it requires in the sense that they bring a number of statutes in line with each other. In states where similar changes are yet to be made, there is a troubling inconsistency between anti-discrimination laws and laws regulating legal status. In NSW, for example, the Sex Discrimination Act 1984 (Cth), and state-based Anti Discrimination Act 1977 (NSW) protect trans people from being discriminated against in terms of equality before the law and access to services. And yet, the predominant situation in terms of legal status in birth certificates for trans people in NSW reflects an internally discriminatory reality that is far from equality. If Parliament passes legislation extending a certain right to a particular group of Australians, the democratic rule of law is undermined when contradictory legislation usurps these rights.
Consistency with International Anti-Discrimination Obligations
While legislative conflicts provide the strongest technical legal argument for why these changes are necessary, there is much legal weight to the view that Australia also owes its trans citizens this recognition through its acquiescence to international treaties and conventions that recognise the rights of trans people. For example, Australia has committed to uphold the right to non-discrimination and equality for all Australians before the law through being a party to the International Covenant on Civil and Political Rights (ICCPR). Article 2(1) of the ICCPR sets out the principle of non-discrimination and Article 26 sets out the principle of equality noting that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. While the extent to which international law is influential in Australia is a topic of much ongoing legal debate that won't be dealt with here, in any event, as mentioned, Australia has passed domestic legislation protecting trans Australians from discrimination. The Tasmanian birth certificate laws acknowledge this reality and reflect an appropriate removal of formally cemented discrimination against trans persons from the statute books.
Consistency Between State and Federal Laws
Further, s109 of the Australian Constitution requires that in the case of inconsistency between a state law and federal law, the federal law trumps the state law. While federal Parliament is responsible for issuing passports under the Constitution, state Parliaments are responsible for regulating birth certificates. There is a constitutional inconsistency where a trans person cannot update their birth certificate without (often unavailable) surgical intervention under state law; and yet under Commonwealth legislation they are able to amend their sex in their passport. They live in a no (hu)man's land, with their true self ultimately unrecognised in law. To resolve this inconsistency, state practice should therefore follow the federal approach under s 109.
3. Best Practice Legislative Process: The Use of Psychological and Medical Expertise in Creating Law
In addition to the above, the new Tasmanian laws are also a paramount example of best practice legislative process in that they take account of expert medical and psychological evidence and practice. Although trans people are routinely denied necessary medical care, and made to go through invasive and often distressing medical procedures to have their identities validated, expert opinion, such as that reported here and here, widely confirms that trans people experience poor mental health outcomes as a result of discrimination and stigma, above all else. LGBTIQ identities have been stigmatised in terms of mental health; it was only in 1992 that the World Health Organisation (WHO) removed homosexuality from its International Classification of Diseases, and only last year – in 2018 – that it followed suit in terms of trans identity. As the WHO spokesperson, Dr Lale Say, said in discussing the 2018 changes, this change was based on widespread scientific evidence confirming that being trans is not a mental illness. However, the diagnosis of gender dysphoria is often a helpful pathway to induce medically necessary transition particularly for transsexual people in the context of widespread societal transphobia. This is supported by the World Professional Association for Transgender Health, which establishes internationally accepted standards for people who are transgender and outlines that best expert practice in relation to transgender people is to be patient guided and centred.
Requiring surgeons to perform medically invasive surgeries on trans people who either may not wish to have, or be able to afford, sex reassignment surgery in order to change their sex in their birth certificate, fundamentally disregards this expert consensus. It particularly discriminates against non-binary people who may not wish to have surgery at all.
Conclusion
There is nothing insidious, theoretically complex or even overly socially progressive in allowing trans Australians to self-declare their gender, or in removing gender from birth certificates. Expert medical practice and formal legal international and domestic structures recognise this as fundamental.
A society is only as strong as the way it treats its most vulnerable and when it comes to legislative equality for vulnerable Australians, there is much we can learn from the state down under to come out on top.
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Zach Richards is a Senior Lecturer in Public Law at the Sydney City School of Law.
Suggested citation: Zach Richards, ‘Legislative Equality for Vulnerable Australians' on AUSPUBLAW (19 June 2019) <https://auspublaw.org/blog/legislative-equality-for-vulnerable-australians>