Tranys Win Law Reform

by Aidy Griffen

(The Gender Centre advise that this article may not be current and as such certain content, including but not limited to persons, contact details and dates may not apply. Where legal authority or medical related matters are cited, responsibility lies with the reader to obtain the most current relevant legal authority and/or medical publication.)

This historic breakthrough is the first time that tranys will receive any legal recognition in New South Wales.

Last month N.S.W. Attorney-General, Jeff Shaw, announced that he would amend the Anti-Discrimination Act to include tranys and to allow birth certificates to be altered in the cases of post-op tranys.

Shaw's moves are in response to a three-year campaign by tranys, led by T.L.C., to secure legal reform and address the top two items on T.L.C.s law reform agenda. T.L.C.s primary role in bringing about these changes was publicly confirmed by Shaw. This historic breakthrough is the first time that tranys will receive any legal recognition in New South Wales. The days when tranys lived in a legal limbo are gone, forever. The purpose of this piece is to detail the changes and their implications for tranys. Another article in the next issue of Polare will analyse how and why these changes have been brought about, and some of the lessons that can be learnt from the campaign.

At the time of writing (November 24th 1995), the final drafting is still in progress and the changes are proposed, not real. It is hoped that the changes will be introduced into this session of Parliament. T.L.C. is currently exerting all the pressure it can to this end. We will not be unable to claim total victory until the legislation passes both Houses and is gazetted.

However, Shaw's moves have already been endorsed by both Cabinet and the A.L.P. Caucus. This means that the N.S.W. Labor Government is publicly committed to delivering trany law reforms. The minor parties and independents have given T.L.C. commitments to guarantee the legislation passes both Houses.

The Legal Changes

The Anti-Discrimination Act will be amended to include "transgender" under a separate section of the Act. "Transgender" will be defined as "a person who lives, seeks to live or has lived as a member of the opposite sex".

This amendment will have the effect of explicitly forbidding discrimination against tranys in the areas of employment, housing, provision of services and goods, sport, membership of associations etc. Religious organisations and small employers (less than 5 employees) will be exempt. While T.L.C. does not approve of these exemptions, they do apply in other areas of the Act (for example, homosexuality), and therefore are not trany-specific. The fight to remove these exemptions will be a general one by all groups protected by the Act and need not be fought by tranys alone.

As far as T.L.C. is aware, this will be the first time that "transgender" will be used in law anywhere in the world. Tranys might note that the term is defined purely in terms of behaviour ("lives, seeks to live ...") and deliberately makes no reference to any notion of identity or surgical status. The terms and definitions are entirely in line with T.L.C.s (and the trany community generally) ideas and reflect the viewpoint of every trany community organisation with my standing. The radical inclusive nature of the legislation clearly demonstrates how successful T.L.C.s radical approach has been.

The Births Deaths and Marriages Act will be amended so that those tranys who have chosen to undergo surgery can alter their birth certificates to reflect their real gender. While the wording of this section is not complete as I write, what is clear is that the legislation will accept that sex categories, for some people, are ultimately socially-determined. The destructive principle of universal sex determination has been breached. Broadening its application so that it covers all tranys is still to be achieved. On this point, I would like to stress that T.L.C. has not approved the birth certificates legislation. We agreed "not to oppose it". The arguments advanced by my dear friend and tireless activist, norrie, in the last issue of Polare against using medical criteria have merit. Confining birth certificate advantages to post-ops is discriminatory - against F.T.M.s, against non-ops and pre-ops, against working class tranys and others who decline surgery. Indeed I put many of the same arguments to Shaw, Refshauge and many others.

Unfortunately, they fell upon deaf ears. According to the pollies, "political realities" made such an option impossible. While privately and off the record, they agreed with our criticisms of narrow legislation that was all they were prepared to consider at this point in time. "Take it or leave it" was their ultimatum. Another reason for this attitude was that the momentum for changes to births certificates developed after T.L.C. had achieved agreement on its primary objective - anti-discrimination changes. This momentum was fuelled by the Carol Abrahams tragedy. The Coroner's findings (that N.S.W. enact laws similar to the South Australian laws regarding birth certificates for tranys) were picked up by Health Minister and Deputy Premier Andrew Refshauge's office and passed onto the Attorney-General's office for action.

Faced with an ultimatum of this type, any reaction will necessarily be a value judgment. Differing views are inevitable. If we all agree that non­discriminatory laws are the correct aim, and if we all agree that their introduction is inevitable (T.L.C. certainly won't be resting until this is accomplished), then whether anyone is right or wrong today will only be known over time and is subject to so many variables (the overall political climate, tranys' own political success/failure, to name just two) that it is impossible to predict.

Speaking personally, I decided "not to oppose" the birth certificates legislation when I asked myself "What would most tranys prefer in this situation ­half a law or no law at all?" Despite being philosophically opposed and personally disenfranchised (I'm non-op and intend staying in my pleasant state), tranys made it clear to me that the overwhelming majority of tranys would prefer half a law to begin with.

The Implications

What will these changes mean to tranys? First of all, they will not be a magic wand to make prejudice and marginalisation disappear overnight. But they are a huge step on the long path towards reintegrating tranys into society and destroying the prejudices and bigotries that currently exclude us.

They will make it illegal to discriminate against tranys, they will provide avenues for those who incur discrimination to seek redress and justice, and they will allow new birth certificates to be issued to some tranys. It will be illegal to sack tranys because they're tranys. It will be illegal to deny tranys housing, or other goods and services available to the general population. It will be illegal to deny tranys entry into sports competitions unless international obligations mandate it. They will be a signal from the Parliament and Government of N.S.W. that it is no longer acceptable to treat tranys as second-class citizens. They will be a signal that tranys must be allowed to enjoy the same rights, privileges and obligations as any other citizen.

In time, these changes will cause a significant improvement in tranys' quality of life.

Tranys will now be able to apply for, and get jobs that reflect their talents, trainings and skills. It will not be possible for banks, and other credit institutions to deny tranys the services and facilities they offer the general public. In time, these changes will cause a significant improvement in tranys' quality of life.

In short, for the first time ever, N.S.W. tranys will enjoy legal recognition, a degree of legal protection and, via the Anti-Discrimination Board and Human Rights Commission, avenues for eliminating discrimination and penalties for those who refuse to cease discriminating against us.

The existence of the legislation opens up a series of opportunities for tranys to pursue its implementation throughout the public and private sectors. For example, Equal Employment Opportunity (E.E.O.) programs can be expanded to specifically include tranys. The N.S.W. Department of Health has already taken the lead in this area. Following pressure from T.L.C., Minister Andrew Refshauge has directed his Department's E.E.O. Office to include tranys in its policies. Another area that immediately springs to mind is relations with the police and justice systems. The existing Police Gay & Lesbian Liaison Officers could have their duties expanded to cover tranys. God knows police - trany relations are sorely in need of improvement. We can get the Education Department to initiate programs to combat prejudice against tranys in the school system ­stopping prejudice before it starts. There are innumerable areas where this type of reform can be applied. It's up to us to ensure that they are. And the best way to achieve that is through community discussion to focus on what we want to achieve, and involving ourselves in T.L.C. to secure those objectives.

To my mind, the most important single outcome of this momentous, historic campaign is simply this: tranys won! For the first time ever, we won. We initiated the campaign, we set the objectives, we planned the strategies, we organised ourselves and our allies, we did our own media campaign, we - not doctors, not bureaucrats, not "professionals" of any type - but we ourselves represented ourselves and achieved far better results that anyone else has ever achieved. And every trany in N.S.W. can take enormous pride in that. For it was a win for our entire community.

We explained ourselves in our own ways, not through an obsolete dubious medical model of perversion and deviance but as citizens of this land whose human rights were subject to systematic abuse. We went to Parliament House and crunched the numbers. For the first time ever tranys stood on their own two feet, demanded action and pursued the cause until we got most of what we wanted. We apologised to nobody, we made no excuses for our lifestyles, we made no discrimination between the various choices that tranys can make to resolve their issues, we were defiant, out, proud and successful. In achieving this, we made the old ways of describing tranys and our various issues irrelevant. We proved we had the power, the capacity, the intelligence and the skills to do it. We proved that tranys can be winners. Those dwindling numbers of tranys who still cling to the old ways might consider that the breakthroughs tranys enjoy are a total vindication of the radical approach we adopted. Tranys in N.S.W. have shown the world how to do it. As news filters out, we can be sure that T.L.C.s approach and strategies will be picked up by tranys throughout the world and copied.

For nothing succeeds like success.

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.