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eLaw Journal: Murdoch University Electronic Journal of Law |
Victoria’s Justice Statement: Rights or Rhetoric? [Or…‘There’s No Show Without Punch!’]
Karen Gurney and Eithne
Mills
Deakin University Law School
Contents
Punch:My name is Punchinello,
All dressed in red and yellow,
I'm such a clever fellow.
Rootitootitooit!
[Suddenly he stops] What's that? Who's that? Is that the Devil? Goodbye everybody! Bye bye! Bye bye! [Exits waving]
[Out comes Joey the clown, looking for Mr Punch]
Joey:
Mr Punch? Mr Punch? Has Mr Punch gone?
Oh dear. Well that must be the end of our show, cos there's no show without Punch. I hope you have all enjoyed yerselves? If you've had fun then we've had fun too. Goodbye everyone! Goodbye! [Exits waving]'Punch and the Devil', in Robert Leach, The Punch & Judy Show: History, Tradition and Meaning (Batsford 1985).
The meaning of the term "discrimination", in its legal sense, is not different from its dictionary meaning. Webster's New International Dictionary defines discrimination as: 'A distinction, as in treatment; esp., an unfair or injurious distinction.'...[T]he word "discrimination" has been used in many a court case. What it really means... is a distinction in treatment...given to different individuals because of their [difference]...It means "different treatment." That is all it means.[7]The Macquarie Dictionary[8] gives an almost identical etymology, defining "discrimination" as 'the making of a difference in particular cases, as in favour of or against a person or thing', and provides the example of 'discrimination against a minority'. Relevant statutes give further guidance in this context. The Equal Opportunity Act 1995 (Vic) defines (direct) discrimination, inter alia, as the treatment of someone less favourably than another person would be treated in the same or similar circumstances.[9] Intention is irrelevant to the question of whether discrimination has occurred.[10] The Commonwealth Acts administered by the Human Rights & Equal Opportunity Commission are couched in very similar terms. Specifically formed by the United Nations to deal with questions of discrimination, the Sub-commission on the Prevention of Discrimination and Protection of Human Rights, early in its first session, determined not to attempt agreement upon a legal definition of the term, "discrimination", merely indicating the considerations which should be taken into account in framing the proposed Universal Declaration of Human Rights.[11] It described "Prevention of discrimination" as the prevention of any action which denies to individuals or groups of people the equality of treatment which they may wish. Differential treatment of such groups or of individuals was justified, it said, when it was exercised in the interests of their contentment and the welfare of the community as a whole. A very clear distinction was made between differentiation which may be justified in the interest of true equality, and discrimination which is based upon 'unwanted,' 'unreasonable,' or 'invidious' distinctions and which is never justified.[12] In order to better understand the meaning of discrimination it is perhaps also important to distinguish between discrimination, prejudice, and stereotyping. Basically, discrimination means that someone is being treated unfairly because of a certain characteristic (attribute). Discrimination is based on prejudice: an attitude or belief which is formed or held without really considering the facts. Prejudice means judging in advance. Stereotyping, on the other hand, involves making global assumptions without knowing all the facts. A stereotype assumes that all members of a group share some general quality. (i.e., they are smart/stupid, they are monogamous/promiscuous, etc.) Stereotyping of people or groups can be derogatory and can lead to prejudice and discrimination. Discriminatory acts are known to be more destructive of those individuals who are already disadvantaged in society. For example, in a recent dissertation on the meaning and consequences of discrimination, US researchers, Michael T. Schmitt and Nyla R. Branscombe explained:
The subjective meaning and consequences of perceived discrimination depends on the position of one's group in the social structure. For members of disadvantaged groups, attributions to prejudice are likely to be internal, stable, uncontrollable, and convey widespread exclusion and devaluation of one's group. For members of privileged groups, the meaning of attributions to prejudice is more localized. Because of such meaning differences, attributions to prejudice are considerably more harmful for the psychological well-being of members of disadvantaged groups than they are for members of privileged groups.[13]In Victorian communities, minority groups based on sexuality or sexual identity appear to suffer overt discrimination at least as severely as those who are held different by reason of their race or religion. The research report, 'Enough is Enough', published by the Victorian Gay and Lesbian Rights Lobby,[14] found high levels of discrimination and abuse on the basis of "sexuality", but even higher levels on the basis of "gender identity".[15] People discriminated against suffer low self-esteem and depressive illnesses, and are unable to properly contribute to the global benefit of the wider community in which they live. The Bracks' Government in Victoria has progressively moved to provide greater protection in respect of these attributes,[16] but it is still a long way from achieving world's best practice in the area.[17] Somewhat alarmingly, it even seems to have taken a backward step by enshrining further discrimination against people with transsexualism - those who are most marginalised - in various legislation enacted by it since the release of its much-heralded Justice Statement. Some are now asking, 'How can this be?'
Whatever may once have been the case, the English language does not now condemn post-operative male-to-female transsexuals to being described as being of the sex they profoundly believe they do not belong to and the external genitalia of which, as a result of irreversible surgery, they no longer have. Where through medical intervention a person born with the external genital features of a male has lost those features and has assumed, speaking generally, the external genital features of a woman and has the psychological sex of a woman, so that the genital features and the psychological sex are in harmony, that person may be said, according to ordinary English usage today, to have undergone a sex change.[25]The question was again considered in the Commonwealth's jurisdiction when "Kevin" and "Jennifer" sought a declaration of validity of their marriage from the Family Court.[26] In a judgment that has been described elsewhere as 'one of the most important cases on transsexualism ever to come on the scene of [the international] jurisprudence',[27] his Honour, Justice Chisholm said obiter:
In my view the evidence demonstrates (at least on the balance of probabilities) that the characteristics of transsexuals are as much "biological" as those of people now thought of as intersex. The difference is essentially that we can readily observe or identify the genitals, chromosomes and gonads, but at present we are unable to detect or precisely identify the equally "biological" characteristics of the brain that are present in transsexuals.[28]On this basis, Chisholm J held that the factors to be considered in determining a person's sex include, but are not limited to, the sex of the gonads, genitals and chromosomes; any hormonal and surgical rehabilitative treatment the person has undergone; the person's perception of their sexual identity (a manifestation of their brain sex); and the perception of others towards them. [29] Following the line of precedents already established in Australia and discussed above, he further held that, post-operatively, a person treated for transsexualism is a member of their reassigned sex.[30] The process of actually changing the external biological appearance through hormone medication and surgery is a long and complex one, especially for those born with a female phenotype and male sexual identity. A person in the process of such change is particularly vulnerable to discrimination and other acts grounded in ignorance and prejudice, the more so because their legal status and physical reality are contradicted by official documentation. All States, with the exception of Western Australia,[31] now provide some form of legislated protection from discrimination for citizens on the basis of their "gender identity", and this protection extends not only to those undergoing treatment for transsexualism, but also to others with intersex conditions and those who identify as "transgender".[32] The protection also applies after sex affirmation has been completed and a change in all legal documentation has occurred. Legal documentation, and especially a Birth Certificate in the contemporaneous sex, is a vital part of the process to restore the dignity, and assure the privacy and safety of people who have a transsexual background. The European Court of Human Rights recently considered the difficulties of a citizen of the United Kingdom, a woman with transsexualism, who had been denied legal status and documentation in her affirmed sex.[33] It found this denial of rights occurred because of the failure of successive governments to legislate in this area and despite various prior warnings from the courts that this was contrary to the intent of the European Convention on Human Rights which is, itself, based on the Universal Declaration of Human Rights of the United Nations. The ECHR held that, by denying the applicant legal status as a woman and the appropriate supporting documentation, it had seriously impinged on her rights to privacy, dignity and family, saying:
The stress and alienation arising from a discordance between the position in society assumed by a post-operative transsexual and the status imposed by law which refuses to recognise the change of gender cannot, in the Court's view, be regarded as a minor inconvenience . . . No concrete or substantial hardship or detriment to the public interest has been demonstrated as likely to flow from any change to the status of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost . . . the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant.[34]Rachael Wallbank[35] very succinctly distilled the legal identity issues facing people with transsexualism post sex-affirmation into the proposition that:
Legally, we need to be able to identify and distinguish between an individual's predominant biological sex, legal sex and common law sex (the sex declared/declarable by a court for certain purposes) in order to properly consider the legal predicament of people living with transsexualism and other intersex conditions... [T]he question of whether one is able to live a reasonable life as a male or a female is ultimately determined by one's brain-sex differentiation rather than the appearance of one's genitalia and/or other sexually differentiated body parts.[36]Thus a person who is post-operative with transsexualism should be able to enjoy, in all circumstances, the rights and benefits of a legal identity that fits with their contemporaneous common law and predominant biological sexes. That legal identity is provided by amendments to Births, Deaths & Marriages Registration Acts in all States and Territories allowing an alteration to the record of sex on the Register in such cases, and thereby puts an end to the discrimination inherent in the law. At least it purports to... Unfortunately, the Devil still pops up to confound people with transsexualism in the form of ill-considered legislation and administrative decisions, as is clearly illustrated by the discussion below.
(1) The Registrar may correct the Register-Similar provisions exist in all the other States and Territories and their purpose is to provide for a correction of the record for a mistake of sexual identification made by the obstetrician or midwife at the time of the birth or shortly thereafter. It allows a sexual identity to be assigned to an infant where doubt exists due to an apparent physical ambiguity in the reproductive organs, and for the record of that sexual identity to be altered in the unfortunate event that further medical examination determines it necessary. The Victorian Registrar, sympathetic to the plight of some intersexed persons who had been surgically assigned in infancy to a sex in which they later felt discordant, absent the specific provisions available elsewhere in Australia, in recent times used the s43 discretionary power to change the record of sex of those individuals. This was done without any pre-requisite that the legal sex be affirmed by way of a surgical correction of the phenotype. While the authors accept this was a humane and sensible answer to the individuals' predicament, we do express our view that it was outside the parameters of the discretion since it was not the record that was incorrect - it accurately reflected their assigned sex - rather it was the choice of surgical procedure performed in their infancy without their informed consent that was the source of the mistake. A request for the discretion to be similarly exercised in the case of people with another form of intersex condition, transsexualism, who had taken all steps to correct their sexual identity by hormonal and surgical means was, however, rejected as inappropriate.[38] The injustice of this discrimination should be obvious to all - a government cannot fairly claim that a corresponding phenotype is mandatory for the legal assignment of sex of one citizen and yet not require the same standard of another. But it happened just the same.(a) to reflect a finding made on inquiry under Division 2; or
(b) to bring an entry about a particular registrable event into conformity with the most reliable information available to the Registrar of the registrable event.
...[A] young person such as Alex, on the [medical] evidence, would not be eligible for surgical intervention until at least the age of 18 years. Thus, for the many purposes for which a birth certificate is required, a person such as Alex in those jurisdictions is required to produce a birth certificate that describes him as a female in circumstances where in all other respects he is living his life as a male...[47]While His Honour's criticisms were directed particularly to Victoria, all Australian jurisdictions apart from South Australia[49] and Queensland[50] currently exclude anyone under 18 years of age from correcting their details, and even Queensland de facto precludes the change for most applicants by making surgery a necessary precedent.[51] Of all them, South Australia, the very first to legislate in the area, is the only jurisdiction where surgery is not an absolute pre-requisite for re-assignment.[52] The special needs of the young are therefore almost totally neglected since medical experts delay surgery for adolescent transsexualism whereas, quite perversely, they readily intervene to rehabilitate the phenotype with surgery when other intersex conditions are manifest.[53] The inclusion of Gender Identity Disorder (GID) in the DSM IV[54] as a psychopathology descriptive of transsexualism is now much disputed.[55] There is an abundance of literature pointing out that the "distress" supposedly associated with the condition is far more attributable to the reactions of others, especially family and friends, to those who experience it. The literature, as did the earlier edition of the DSM, also clearly distinguishes between those with transsexualism who, post-operatively, are generally well-adjusted and have high levels of self-esteem, and those who are "transgendered" (GIDAANTS),[56] who are not well-adjusted, and have low levels of self-esteem and numerous attendant psychopathologies.[57] Nevertheless, the diagnosis persists and still holds particular favour with a number of overseas practitioners involved in the treatment of children who advocate aversion therapies rather than sex affirmation.[58] The contrary view has recently gained greater favour, however, as researchers like Professor Peggy Cohen-Kettenis accumulate ever more convincing evidence that early hormonal, and even surgical treatment, provide improved outcomes for children, especially adolescents.[59] It is relevant to comment here that there is now federal legislation providing protection from discrimination for an individual on the basis of their age - the Age Discrimination Act 2004.[60] This Act binds the Crown in right of the Commonwealth, the States and Territories,[61] and applies, inter alia, to make discrimination on the basis of age unlawful in the supply of goods and services.[62] A person acting in direct compliance with a law of a State or Territory, however, is exempted from the provisions by section 39(4) of the Act. This would appear to render the Registrar immune from an action based in age discrimination under the Commonwealth provisions. The young have been failed, again.
Reflecting upon the particular circumstances of this case leaves me anxious about the detrimental consequences that a young person such as Alex would suffer from having to present a birth certificate that is antithetical to his self-image...[48]
People with transsexualism and other intersexual people who have undergone irreversible sex affirmation treatment have only been permitted to correct or update the particulars as to their legal identity if they comply with such inhumane and strange conditions as the requirement they divorce their life-long spouse... Here married people with transsexualism fall victim to a misplaced legally expressed homophobia that fails to appreciate the workings of the marriage law of Australia, as clarified in Re Kevin, that the validity of a marriage, and hence the sex of the parties to a marriage, are to be determined at the date of the marriage. The 'sex of the parties' means their common law sex and does not require or invite some scientific investigation or argument as to which (or which set) of the sexually differentiated aspects of a person determine their possibly multi-faceted biological sex.[65]The authors are in strong agreement with Ms Wallbank and echo her conclusion that:
The withholding of the right to an accurate legal identity from a person of transsexual background because that person desires to continue to honour a marriage that has endured their transsexualism has nothing to say about the sex (or sexuality) of the couple at the time of the marriage and is clearly inhumane and against public interest that would seek to honour an enduring marriage.[66]It was not that the Victorian Attorney-General was uninformed on the human rights issues at stake. The Equal Opportunity Commission Victoria, responding to the Attorney-General's Discussion Paper preceding the proposed legislation,[67] explained that the introduction of provisions preventing people of transsexual background who are married from being able to have their affirmed sex recorded on their birth certificates would be discriminatory, would limit the effectiveness of the proposed reforms and be contrary to the common law enunciated in Re Kevin. The Commission also submitted, inter alia, that:
Discrimination against a person on the basis of their marital status is prohibited under both the Victorian Equal Opportunity Act and the Sex Discrimination Act 1984 (Cth)... The 2003 Family Court case of the Attorney-General for the Commonwealth and "Kevin and Jennifer" and Human Rights and Equal Opportunity Commission (Intervener) has clarified that for the purpose of the validity of a marriage under Australian law, the issue of whether a person is a man or a woman is to be determined as of the date of the marriage. Therefore, the sex of the parties at any time after the date of the marriage is not relevant to the validity of the marriage. The implication of the decision in Re: Kevin and Jennifer is that where one party to a marriage subsequently undergoes a process of sex affirmation, with the result that that party's affirmed sex is the same as their spouse's sex, the validity of the marriage will not be affected.[68]Undeterred by this, on 11 May 2004, Attorney-General Rob Hulls made it very clear in his Second Reading Speech on the Bill for the Amendment that the Government justified this patently discriminatory provision in the legislation on the basis of (i) consistency;[69] and (ii) fear of being seen to facilitate a same-sex marriage. During the debate, Mr Hulls said:
...this bill requires that a person be unmarried. This is consistent with the model in other states and territories... The requirement for an applicant to be unmarried avoids the question of whether the person is in a same-sex marriage. An example would be if a person was born anatomically female, married a man and then later transitioned to being male - if that person were to remain married, the result would be prima facie a same-sex marriage. Given that marriage is a matter for the commonwealth government - which, I might say, has made its views on same-sex marriages very clear...[70]In relation to the likely illegality of the provision, vis-à-vis section 6 of the Sex Discrimination Act 1984 (Cth) ("the SDA") mooted by the Equal Opportunity Commission, the Attorney-General further stated:
...[W]e have advice that [inconsistency with the SDA] will not have ramifications in relation to that legislation. If this legislation in Victoria did allow a person to be married before transitioning and changing their birth certificate it may be open to a legal challenge on the basis of inconsistency with the commonwealth Marriage Act. While here in Victoria we are committed as a government to ensuring that people in domestic partnerships are treated in the same way as married people, the inability of a married person to apply for a changed birth certificate under this legislation is based on commonwealth law, over which we in Victoria have no control.[71]With respect to the Attorney-General and those advising him, the authors hold the view that enshrining such deliberate discrimination in legislation was nothing more nor less than a deliberate abrogation of the human rights of some members of a class of people for political, rather than any legal or medical science considerations. The Government, in its own words, 'avoided the question' and decided to favour consistency with similar legislation existing in the other States and Territories, rather than consistency with the common law position annunciated in Re Kevin where the relevant ratio was distilled in the statement that 'the sex of a person for the purposes of marriage is their sex at the time of the marriage'.[72] As was pointed out in the authors' individual submissions to the Victorian Attorney-General and by others, in Re Kevin Chisholm J specifically considered the situation where a person who is already married completes sex affirmation treatment:
What would be the position if the marriage law were to recognise the re-assignment? The marriage would I think still be valid: its validity would be determined as at the date of the marriage, and I would not think it would become invalid by reason of the reassignment...[73] The fact is that the assignment of transsexuals to one category or the other will inevitably mean that some of the person's characteristics will be those of the "other" sex. The law's task, in this area through the definition it gives to the everyday words "man" and "woman", is to reach a conclusion that is just, compassionate and sensible.[74]The Victorian Government, having finally implemented reforms that were decades overdue, recognising the contemporaneous circumstances of a person post-operative for transsexualism rather than adhering to a historical mistake, decided to exclude from their ambit those few who remain in a valid prior marriage. Apparently blinded to reason by the fear of being embroiled in the same-sex marriage debate, the government created a legal oxymoron where a person whose endocrinology and male phenotype, for example, having been rehabilitated to female by sex affirmation treatment is now regarded as a female under the marriage law, social security law, criminal law and administrative law, but the same person, who in other circumstances would be a female for the purposes of all the laws of Victoria,[75] is stuck with a male Birth Certificate that would, in effect, facilitate them marrying another female, a person who is, for all practical purposes, of the same sex.[76] Justice, compassion and sense flew out the window when this became the law in Victoria. It seems not unreasonable to propose that denying both the existence of contemporaneous facts that determine the sex of a person and the person's consequent right to be recognised as a member of that sex under the laws of Victoria for all purposes, solely on the basis of the person's marital status, is the ultimate discrimination that anyone living with transsexualism has been subjected to in the State of Victoria since the Full Court of the Supreme Court in R v Cogley[77] first heralded our steady departure from the narrow essentialism of Corbett.[78] It places those married individuals, and their spouses and children, in the invidious position of having to choose between their rights to marriage and family, and the right of the person with transsexualism to finally achieve legal status as the sex they know themselves to be. It is the authors' joint view that this is not only morally wrong; the offending provision is clearly ultra vires the Sex Discrimination Act 1984 (Cth).[79] The Sex Discrimination Act 1984, by s6, provides that:
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the marital status of the aggrieved person if, by reason of:The section encompasses discrimination occurring in the supply of goods and services by virtue of section 22 of the Act. The provision of birth registrations and certificates, being a service of government, fall within its ambit.[80] The Victorian Births, Deaths & Marriages Registration (Amendment) Act 2004 is therefore ultra vires the Sex Discrimination Act in so far as it treats a married applicant less favourably than it treats one who is unmarried and because it imposes a condition disadvantaging persons who are married. [81] Inconsistencies between State and Commonwealth laws are dealt with under section 109 of the Constitution. The section provides that, where a law of a State or Territory is inconsistent with a valid law of the Commonwealth, the law of the State is invalid to the extent of the inconsistency. The Sex Discrimination Act was enacted by the Commonwealth under the external affairs power granted it by s51(xxix) of the Constitution and is a valid law of the Commonwealth.[82] The object of the Act is to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women[83] and to eliminate, so far as is possible, discrimination against persons on the ground of...marital status.[84] The provisions of s30A of the Births, Deaths and Marriages Registration Act are therefore not only inconsistent with the Sex Discrimination Act, but are also invalid in so far as they purport to deny a corrected Birth Certificate to an applicant who is married. Once one understands the full import of the ratio in Re Kevin, that the sex of a person for the purposes of marriage is their sex at the time of the marriage, the Attorney-General's concerns of inconsistencies between the Victorian Act and the Marriage Act can be dismissed absolutely on the basis that the applicant's sex was correctly identified at the time of the marriage. Issuing an altered birth certificate to recognise a persons' contemporaneous circumstances post-sex affirmation, where the person remains in a prior valid marriage, cannot possibly affect the validity of the marriage since a valid marriage in Australia can only be dissolved by divorce or the death of one of the parties.[85] It is also very clear that the States have no jurisdiction to legislate to effect a valid marriage or render it void. As Counsel for the Bills and Digests Group of the Australian Parliament wrote in an advice prepared for the consideration of Members prior to the passage of the Marriage Amendment Act 2004:(a) the marital status of the aggrieved person; or
(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the marital status of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same marital status as the aggrieved person.
(b) a characteristic that appertains generally to persons of the marital status of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the marital status of the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different marital status.
The Commonwealth's power with respect to marriage comes from s. 51(xxi) of the Constitution. Section 51(xxi) states:There is no reason to doubt that the Commonwealth's exclusive jurisdiction is equally conclusive in the context of divorce and matrimonial causes by virtue of the similar operation of s51(xxii) of the Constitution, the Family Law Act 1975 and s109 of the Constitution. Certainly, the Scrutiny of Acts and Regulations Committee of the Victorian Parliament had no doubt when, in the context of redundant and unclear legislation, it recently reported on the assumption of these particular powers by the Commonwealth:
The Parliament shall ... have power to make laws for the peace, order, and good government of the Commonwealth with respect to... Marriage.
The effect of the Marriage Act 1961 (Cth) and section 109 of the Constitution is that the Commonwealth has exclusive jurisdiction over the formation of marriages in Australia (i.e. there is no room for States to legislate).[86]
...by the 1950s there was a growing demand for a uniform, national approach to marriage and divorce law. These demands culminated in the enactment of a uniform divorce law, the Matrimonial Causes Act 1959, and two years later, a uniform marriage law, the Marriage Act 1961. These new Commonwealth Acts superceded and replaced the state laws in the same areas.... Over the next years the Commonwealth increasingly legislated in the family law area, this intervention reaching its high point with the introduction of the Family Law Act 1975. This massive step forward towards a uniform national family law effectively ended any large-scale state involvement in the area.... It is in this context - one of Commonwealth supremacy in the family law arena - that we now turn to the individual Acts under consideration...[87]Yet the Attorney-General for Victoria, just a few months earlier, after first optimistically repudiating any inconsistency between his legislative proposal and the Sex Discrimination Act, told the Victorian Parliament during his Second Reading speech on the 2004 Bill:
If this legislation in Victoria did allow a person to be married before transitioning and changing their birth certificate it may be open to a legal challenge on the basis of inconsistency with the commonwealth Marriage Act.... the inability of a married person to apply for a changed birth certificate under this legislation is based on commonwealth law, over which we in Victoria have no control.[88]One has to wonder what might have been behind the decision to opt for political pragmatism in the construction of this supposedly "beneficial" legislation: was it same-sex politics; was it simply poor advice; or was it the consequence of deep prejudices inherent in those who made it? Whatever; like the marital woes of our unhappy couple, Punch and Judy, these particular marriage difficulties will undoubtedly continue until a better understanding of the issues is reached and despite those now rather hollow promises contained in the Attorney-General's Justice Statement.
What I have learnt during the course of being involved in the development of this bill is that sex affirmation surgery is a complex matter, and it can encompass a range of surgical procedures. It will be the task of medical experts to determine when a person has had an adequate amount of surgery for the purposes of the bill. While the provision sets a legal standard, I am confident that the medical profession will use the scope available to assess individual patients.[91]In drafting these provisions, the Government simply created another legal oxymoron. A man with transsexualism born and living in Victoria cannot obtain a corrected Birth Certificate on the basis of chest reconstruction and hormone treatment alone. The same man, born in Victoria but now living in South Australia, can obtain a South Australian recognition certificate which is sufficient of itself to then qualify him for a corrected Victorian Birth Certificate. So much for the oft-repeated justification for the discriminatory provisions inherent in this Act that:
National consistency is important to ensure mutual recognition of an amended Victorian birth certificate and so that the same rights and obligations apply to people living in the various Australian jurisdictions and those born interstate.[92]
[1] Victorian Government, 'Attorney-General's Justice Statement', (2004) http://www.justice.vic.gov.au/CA2569020010922A/page/Listing-Home+Page+News-Attorney-General's+Justice+Statement:+New+directions+for+the+Victorian+Justice+System+2004-2014?OpenDocument&1=Home~&2=~&3=~&REFUNID=~
[2] Jason Silverii, 'State Attorney-General Rob Hulls has released his blueprint for the development of the Victorian justice system over the next decade' (2004) 78(7) LIJ, 20
[3] Ibid.
[4] Ibid.
[5] Justice Statement, n1 above, 18: Establish a process of discussion and consultation with the Victorian community on how human rights and obligations can best be promoted and protected in Victoria. This includes the examination of options such as a charter of human rights and responsibilities, new approaches to citizenship and to modernising anti-discrimination law, reducing systematic discrimination and strategies to promote additional change.
[6] Jerome Shestack, 'The Jurisprudence of Human Rights', in Theodor Meron (ed), Human Rights in International Law: Legal and Policy Issues, (1984), 101.
[7] 110 Cong. Rec. 5863-5864 (1964), partially quoted in Regents of University of California v. Bakke, [1978] USSC 145; 438 U.S. 265, 415, 5
[7] L.Ed.2d 750 (1978) (Stevens, J., concurring in the judgment in part and dissenting in part).
[8] Macquarie University, The Macquarie Encyclopedic Dictionary (1995) ISBN 0 949757 56 X, 264.
[9] Equal Opportunity Act 1995 (Vic) Act No.42 of 1995, s8(1).
[10] Ibid, s8(2).
[11] Warwick McKean, Equality and Non-Discrimination Under International Law, (1983 Oxford University Press ISBN 0198255195), 82.
[12] Ibid, 83-6.
[13] Michael Schmitt and Nyla Branscombe, 'The Meaning and Consequences of Perceived Discrimination in Disadvantaged and Privileged Social Groups', In W. Stroebe & M. Hewstone (Eds.), European Review of Social Psychology (2002), Vol 12, 167-199. Chichester , England : Wiley.
[14] VGLRL, Enough is Enough: Report into Discrimination and Abuse Experienced by Gay Men, Lesbians, Bisexuals and Transgender People in Victoria, (2000) Victorian Gay and Lesbian Rights Lobby, Melbourne ISBN 0 646 39795 8.
[15] Ibid, 5-8, 15.
[16] The Equal Opportunity Act was amended in 2001 to add "sexual orientation" and "gender identity" to the list of attributes protected under the Act, and a major revision of statute law resulted in the removal of almost all provisions from Victorian legislation discriminating against same-sex couples.
[17] For example, while protections based on race, religion and sex extend to harassment or vilification, no such protections exist in Victoria in regard to sexual orientation or sexual identity. This is not the case in many other States. In New South Wales, for example, a successful action was launched against members of the media over their derogatory comments concerning homosexual men.
[18] See for example, Zhou, Hofman, Gooren and Swaab, 'A sex difference in the human brain and its relation to transsexuality' (1995) 378 NATURE, 68-70; Kruijver, Poole, Zhou, Hofman, Gooren and Swaab, 'Male-to-female transsexuals have female neuron numbers in a limbic nucleus', (2000) 85(5) JCEM, 2034-2041; Dick F Swaab, Book Review - Sexual Differentiation of the Brain', Akira Matsumoto (ed.), CRC Press, Boca Raton, Florida, 1999, (2003) 32(6) Archives of Sexual Behaviour, 585:3; Carina Dennis, 'Brain development: The most important sexual organ', (2004) 427 NATURE, 390-392 http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&list_uids=7571001&dopt=Abstract&holding=f1000; GIRES, 'Atypical Gender Development - A Review', (2004) Gender Identity Research & Education Society, UK, http://www.gires.org.uk/Web_Page_Assets/frontframeset.htm
[19] See Karen Gurney, 'Twisting the Knife', [2004] DeakinLawRw 18; (2004) 9(2) Deakin Law Review 339.
[20] Ibid, 350.
[21] R v Harris and McGuiness (1988) 17 NSWLR 158, 194.
[22] R v Cogley [1989] VicRp 70; [1989] VR 799.
[23] Secretary, Department of Social Security v SRA [1993] FCA 573; (1993) 118 ALR 467.
[24] Ibid, 15 per Black CJ.
[25] Ibid, 21.
[26] Re Kevin (validity of marriage of transsexual) [2001] Fam CA 1074.
[27] In Re: Michael J Kantaras v Linda Kantaras [2003] Case No. 98-5375CA. 511998DR005375xxxWS, 6th Circuit, Florida, 673.
[28] Ibid, 272.
[29] Ibid, 329.
[30] Ibid.
[31] Western Australia's protection from discrimination is limited to "gender history" and only applies to a person after sex affirmation surgery.
[32] The authors regard "transgender" as something of a nonsense since the term's popular meaning varies according to usage in any particular place and it has not been properly defined by either medicine or the law. The term was originally coined by Charles (Virginia) Prince, a cross-dresser who lived as a woman but had no desire to be, or any belief he actually was, a woman. Prince was a heterosexual, married man who found the "transvestite" label pejorative. He actively excluded people with transsexualism from his cohort of cross-dressers because he understood the considerable difference they represented. See discussion in Dallas Denny, 'Virginia's Ordeal: S.P.I.C.E. Organisers should be ashamed' (2000) 89 Transgender Tapestry, 21.
[33] Christine Goodwin v the United Kingdom [2002] Application No. 28597/95.
[34] Ibid, 74, 77, 91, 93.
[35] Legal Counsel for "Kevin" and "Jennifer".
[36] Rachael Wallbank, 'Re Kevin in Perspective', [2004] DeakinLawRw 22; (2004) 9(2) Deakin Law Review 461, 467.
[37] It is interesting to conjecture why a piece of much overdue remedial legislation assented to on 1 June 2004 was not separately and expeditiously proclaimed by the Victorian Government, but rather was allowed to finally come into operation by a delayed process involving only the effluxion of time.
[38] See, for example, the submission to the Victorian Government from the Australian WOMAN Network, 'Transsexualism and the Case for Correction of Birth Certificates in Victoria', (2002) AWN, Australian W-O-M-A-N Network Birth Certificate submission
[39] Births, Deaths & Marriages (Amendment) Act 2004, Act No.29/2004.
[40] Sex Reassignment Act 1988 (SA), Act No.49 of 1988.
[41] Victoria v Horvath [2002] VSCA 177, 60 Winneke P, Chernov and Vincent JJA: 'Contumelious' is not a word which enjoys wide currency in modern society but, when used in the context in which the law uses it, is calculated to describe conduct which is disgraceful, humiliating or contemptuous of the rights of others.'
[42] Re Kevin (validity of marriage of transsexual) [2001] FamCA 1074; Attorney-General for the Commonwealth v Kevin and Jennifer and the Human Rights and Equal Opportunity Commission [2003] FamCA 94.
[43] Births, Deaths & Marriages (Amendment) Act 2004, n39.
[44] Ibid, s30A(1).
[45] See the Second Reading Speech: Births, Deaths & Marriages Registration (Amendment) Act 2004, Hansard, Victorian Legislative Assembly, 11 May 2004, 1107 where the Attorney-General gave a specific assurance to people with intersex conditions, who had been incorrectly assigned to a sex in their infancy, that the existing use of an administrative discretion (s23A) to correct their birth certificates would continue. In practice, the grant of the discretion is not conditional on sex affirmation surgery.
[46] Re Alex: Hormonal Treatment for Gender Identity Dysphoria [2004] FamCA 297.
[47] Ibid, 234.
[48] Ibid, 236.
[49] Sex Reassignment Act 1988, n40 above, s7(3)(b).
[50] Births, Deaths & Marriages Act 2003 (Qld), No.31, 2003.
[51] Ibid, s22.
[52] Sex Reassignment Act 1988, n40 above, s3 provides that - " reassignment procedure " means a medical or surgical procedure (or a combination of such procedures) to alter the genitals and other sexual characteristics of a person, identified by birth certificate as male or female, so that the person will be identified as a person of the opposite sex and includes, in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child's sexual characteristics.
[53] The special problems of infants born with atypical genitalia, both those who are satisfied with their assigned sex and those who are not, are expounded on numerous websites, including: http://www.intersexualite.org/; http://www.bodieslikeours.org/; and http://www.kindredspiritlakeside.homestead.com/
[54] APA, Diagnostic and Statistical Manual of the United States DSMIV TR, published by the American Psychiatric Association, Washington D.C., 1994, updated 2000. Classification code 302.85 in adolescents or adults, or code 302.6 in children.
[55] See especially, Herbert Bower, 'The Gender Identity Disorder Classification in the DSM-IV: A Critical Evaluation', (2001) 35(1) Australia & New Zealand Journal of Psychiatry, 1-8; Ken Hausman, 'Controversy Continues to Grow Over DSM's GID Diagnosis', (2003) 38(14) Psychiatric News, 25; APA, 'Sexual and Gender Identity Disorders: Questions for DSM-V', (2003) Transcript of the session at the 2003 Annual General Meeting of the American Psychiatric Association, http://www.tsroadmap.com/info/div-44-roundtable.html
[56] Gender Identity Disorder Adolescents and Adults Non Transsexual: DSM III
[57] Miach P et al, 'Utility of the MMPI-2 in assessing gender dysphoric patients', (2000) Journal of Personality Assessment, 75, 268-280; Mikael Landen, Transsexualism. Epidemiology, phenomenonology, aetiology, regret after surgery and public attitudes, (1999), Institute of Clinical Neuroscience, Göteborg University, Sweden ISBN 91-628-3879-6; Haraldesen & Dahl, 'Symptom profiles of Gender Dysphoric Patients of Transsexual Type Compared to Patients with Personality Disorders and Healthy Adults', (2000) 102 Acta Psych Scand.
[58] B Meyenburg, 'Gender identity disorder in adolescence: outcomes of psychotherapy', (1999) 34(134) Adolescence, 1999 Summer edition, 305-13; George A Rekers, 'Gender Identity Disorder', in Rekers, G (ed) (1995) Handbook of Child and Adolescent Sexual Problems (Lexington/Jossey-Bass/Simon & Schuster; Heino Meyer-Bahlburg, 'Gender Identity Disorder in Young Boys... A Parent- and Peer-Based Treatment Protocol', (2002) 7(3) Clinical Child Psychology and Psychiatry.
[59] Peggy Cohen-Kettenis, 'Post-operative functioning in a group of adolescent transsexuals', http://www.pfc.org.uk/congress/abstract/abs-015.htm; Peggy T Cohen-Kettenis & Stephanie H M Van Goozen, 'Adolescents who are Eligible for Sex Reassignment Surgery: Parental Reports of Emotional and Behavioural Problems', (2002) 7(3) Clinical Child Psychology and Psychiatry; Domenico Di Ceglie, 'Gender identity disorder in young people' (2000) 6 Advances in Psychiatric Treatment, 458-466; Peggy Cohen-Kettenis, Stephanie van Goozen, 'Pubertal delay as an aid in diagnosis and treatment of a transsexual adolescent', (1998) 7(4) Eur Child Adolesc Psychiatry; Louise K Newman, 'Sex, Gender and Culture: Issues in the Definition, Assessment and Treatment of Gender Identity Disorder', (2002) 7(3) Clinical Child Psychology and Psychiatry.
[60] Age Discrimination Act 2004 (Cth), No.68 of 2004.
[63] Births, Deaths & Marriages (Amendment) Act 2004, n39 above, s30A(1).
[64] Rachael Wallbank, 'Re Kevin in Perspective', [2004] DeakinLawRw 22; (2004) 9(2) Deakin Law Review 461, n36 above.
[65] Ibid, 466.
[66] Ibid.
[67] Equal Opportunity Commission Victoria, Submission in Response to the Attorney-General's Discussion Paper: Changes to Birth Certificates for Transsexual People, (undated).
[68] Ibid.
[69] Mr Hulls neglected to point out that, being the very last of the States and Territories to act to rectify the neglect of human rights for people living with transsexualism, the second Brack's Government was alone in having the advantage of the guidance flowing from the Full Court of the Family Court's confirmation of the decision at first instance in Re Kevin and apparently ignored it for pragmatic, not legal reasons.
[70] Second Reading Speech, Births, Deaths and Marriages Registration (Amendment) Act 2004, Hansard of the House of Assembly of the Victorian Parliament, 11 May 2004,1107.
[71] Ibid.
[72] Re Kevin [2001] FamCA 1074, n42 above at 330.
[73] Ibid, 303.
[74] Ibid, 305.
[75] Births, Deaths & Marriages (Amendment) Act 2004, n39 above, s30G.
[76] As mentioned in the paper, this requirement that a person of transsexual background applying for a corrected birth certificate be 'unmarried' is found in the legislation of all States and Territories. It is an issue that has been on the SCAG (Standing Committee of Attorneys-General) agenda for many years without resolution or action. The difference here is that Victoria, alone, had the full benefit of the statement of the common law represented by Re Kevin confirmed on appeal.
[77] R c Cogley [1989] VicRp 70; [1989] VR 799, n22 above.
[78] Corbett v Corbett (otherwise Ashley) 1983 p
[78] (Probate, Divorce and Admiralty Division, UK). The exclusive "test" to determine the sex of a person formulated in this UK decision by a single judge took on an immense, and many believe, undeserved importance in common law jurisdictions. Ormrod J held that for a person to be accepted as a member of a particular sex, the sex of all three of gonads, chromosomes and genitals must be congruent. He also held that the psyche had no place in such a determination. The decision has been used to deny the sexual identity of many people born intersexed, not just those with transsexualism. Although Corbett was much criticised in many quarters over the years, it took the incisive reasoning of Chisholm J, in Re Kevin, to finally expose the intrinsic flaw in Ormrod J's logic and to formulate an inclusive alternative based on current science.
[79] Sex Discrimination Act 1984 (Cth), Act No.4 of 1984.
[80] IW v City of Perth & Ors [1997] HCA P37/96.
[81] As are similar provisions in the corresponding Acts of all the other States and Territories.
[82] Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237 at 4 per Barwick J.
[83] Sex Discrimination Act 1984 (Cth); s3(a).
[85] Family Law Act 1975, s48(1). See also the discussion in E. Mills, Family Law, (2001) Butterworths Tutorial Series ISBN 0 409 31341, [4.1.3].
[86] Ian Ireland, 'The High Court and the Meaning of Marriage' in Section 51(xxi) of the Constitution, (2002) Research Note 17 2001-02 , Parliamentary Library, Parliament of Australia, 12 February 2002.
[87] SARC, 'Report concerning the Maintenance Act 1965, Marriage Act 1958 and the Perpetuities and Accumulations Act 1968', The Commonwealth Steps In, (2004) Scrutiny of Acts and Regulations Committee, Parliament of Victoria, No.81 Session 2003-2004, http://www.parliament.vic.gov.au/sarc/Redundant%202004/introduction.htm , November 2004, 17.
[88] Second Reading Speech, Births, Deaths and Marriages Registration (Amendment) Act 2004, n70 above, 1107.
[89] Births, Deaths and Marriages Registration (Amendment) Act 2004, n39 above, s4.
[90] While psychiatric assessments to differentially diagnose transsexualism are conducted by the Monash Gender Dysphoria Clinic under the auspices of the Monash Medical Centre, both male and female surgeries are only available in the private system at very substantial cost. The private hospital that has been accommodating men for surgery has also notified the surgeon that it no longer wishes to do so - either another consequence of the litigation or the insufficient funds returned by long-term surgical inpatients.
[91] Second Reading Speech, Births, Deaths and Marriages Registration (Amendment) Act 2004, Hansard of the Legislative Council of the Victorian Parliament, 25 May 2004, 1067-1068. Ms Mikakos has been very sensitive to the plight of people with transsexualism and her response here is perhaps more suggestive of an expression of Cabinet solidarity rather than an individual conviction.
[92] Ibid, 1068.
[93] Corrections and Major Crimes (Investigative Powers) Acts (Amendment) Act 2004 (Vic).
[94] The Equal Opportunity Act 1995, n9 above, s6(c) adds "gender identity" as an attribute protected under the Act and protection is extended to the provision of goods and services by s42, whether or not the goods or services are provided for payment.
[95] Richard Edney, 'To Keep Me Safe From Harm? Transgender Prisoners and the Experience of Imprisonment', [2004] DeakinLawRw 17; (2004) 9(2) Deakin Law Review 327.
[96] Karen Gurney, 'If it's got tackle, it's a bloke!' Online Opinion, Tuesday 07 December 2004, http://www.onlineopinion.com.au/view.asp?article=2817
[97] Compare, for example, the (very positive) Victorian Government response to recent Opposition cries that a woman with transsexualism should not have been accepted into the Victoria Police recruiting program.
[98] The present Minister for Corrections, the Hon Andre Haermeyer MP, never responds to written concerns about the plight of the most vulnerable in his prisons system - the young, the feminine or those with transsexualism. His Department is similarly recalcitrant, having consistently failed to implement a policy for the management of transsexual and intersex prisoners despite various undertakings given to the Equal Opportunity Commission and the Victorian Civil and Administrative Tribunal.
[99] Steve Butcher, 'No Safety-Surety on Gang-Rape for Transgender Prisoner', The Age, 4 August 2001, ftp://www.theage.com.au/
[100] Richard Edney, n95 above, 331.
[101] Ibid, 332; L v Commonwealth (1976) 10 ALR 269.
[102] Denyer has made numerous EO and FOI applications and the Government has indicated its desire to have Denyer declared a vexatious litigant similar to another multiple murderer, Julian Knight. See, for example, Andrea Petrie and Chee Chee Leung, 'State turns down triple murderer's bid for sex change', The Age, 9 January 2004, http://www.theage.com.au/articles/2004/01/08/1073437410826.html?from=storyrhs
[103] The serial murders that led to Denyer's incarceration are chronicled in Paul B Kidd, 'All about Paul Denyer', (1993) Court TV's Crime Library, http://www.crimelibrary.com/serial_killers/predators/paul_denyer/1.html
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