The Sex/Law Tango Tangle

by norrie mAy welby

(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.)

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 N.S.W., 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 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 Supported Accommodation Assistance Program (S.A.A.P.), 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 N.S.W. law applying to "recognised transgender persons" and flies in the face of the federal legal ruling of re: Kevin.

As S.W.O.P.s Transgender Project Officer, I am working with the Gender Centre and Sex and Gender Education (S.A.G.E.) 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 S.A.A.P. adopt a more respectful and legally appropriate practice.

On a brighter note, those transsexuals who were born in the U.K. can now have their birth certificates changed to reflect the appropriate gender.

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 U.K. series last year. More and more transgender people are becoming visible in many varied fields, from the glamour of television 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.