Law Reform Report

by Elizabeth Riley

(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.)

Recommendations from the oh so long awaited Law Reform Commission's report into the Anti-Discrimination Act carry little joy for the transgender community. The issue of separating recognised and other transgender people continues to apply as does the across the board exemption allowed to sporting groups. The only possible positive change may relate to superannuation and we will need to wait and see how this will apply once the recommendations have been debated in Parliament.

In the meantime, in response to the report, The Gender Centre forwarded the following letter to the Attorney General's Department. Copies have also been forwarded to a number of other organisations and we are informed that supportive responses will be forwarded in their own submissions by some of those organisations. To date, they include: The Anti-Discrimination Board of N.S.W., Inner City Legal Centre, A.C.O.N. and The Gay and Lesbian Anti-Violence Project. We just keep plugging away until the day comes when enough bureaucrats learn the difference between gender identity and genitals. (Don't hold your breath but don't give up hope. Remember, we did get past the chromosomal hurdle).

Dear Vicki,

I have just received a letter from A.G.s inviting comment on the above report. There are three areas that remain of concern to members of the transgender community.

The first of these is the distinction that continues to apply between "recognised" and "other" transgender people. There are a number of factors that need to be considered in determining the fairness of distinguishing between pre-operative and post-operative people. The primary one of these is the prohibitive cost ($17,000 to $20,000) of sex-reassignment surgery (S.R.S.). Due in a large part to discriminatory attitudes some 60% of the transgender community are unemployed and living on benefits. For them S.R.S. while desirable is simply not an option. It seems grossly unfair that discrimination forces these people into these circumstances in the first place, and then continues to discriminate against them as a matter of legislation.

Secondly, and in relation to the first point, if recognised and other transgender people are to be treated separately, then the issue of post-operative people who are not recognised needs to be addressed. For a person to be a recognised transgender person they need to be born in N.S.W. or have a recognition certificate issued from another state of Australia, and change their sex on their birth certificate. Affected by this limitation are post-operative transgender people living in N.S.W. who were born overseas or in Australian states that do not issue such certificates. Since many countries still refuse to alter birth certificates, and states do not issue recognition certificates, this group, while having the same surgical status of recognised transgenders remain in the category of other transgenders. This is clearly discriminatory and some system needs to be developed that allows all post-operatives living in N.S.W. the same legal status.

Finally on the issue of sport. While debate continues over the relative strength of genetically female sportswomen and male to female transgender sportswomen there are many levels at which sport is played in this country and many sports that in reality are non gender specific. In terms of levels, serious competitive sport may be distinguishable from social sporting activities. Similarly non gender specific sports such as golf, lawn bowls, darts etc. carry no gender advantage. I would suggest that if sport is to be problematic then exemptions on transgender status should be restricted to serious competitive sport and that transgender people be allowed access to social and non gender specific sporting clubs and groups.

This at least allows transgender people to access sport at a level that is beneficial to their health and well-being in a physical and socially interactive sense. In a country where sport is so highly regarded it is inexcusable that sporting groups should have the freedom to discriminate. I have received a hostile phone call from a manager of a bowling club who was desperately keen to prevent a transgender woman from playing in the female lawn bowls competition. I would suggest that his reluctance was not about concern for gender equity and unfair advantage, it was about personal prejudice. Personal prejudice options need to be eliminated as a fundamental premise of anti-discrimination legislation.

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