Victorian gender recognition legislation an important step for equality

Lisbeth Latham

The Victorian government announced new legislation on August 18 aimed at simplifying the process for trans and gender diverse (TGD) people's to change the sex marker on their birth certificates and records. This has rightfully been welcomed as an important step forward for TGD people rights.
The new legislation, which follows similar legislation in the ACT and 2013 changes to policies regarding sex markers on Commonwealth documents, is a start towards eliminating medical gatekeeping on the lives of TGD people.

The Victorian government announced new legislation on August 18 aimed at simplifying the process for trans and gender diverse (TGD) people's to change the sex marker on their birth certificates and records. This has rightfully been welcomed as an important step forward for TGD people rights.

The new legislation, which follows similar legislation in the ACT and 2013 changes to policies regarding sex markers on Commonwealth documents, is a start towards eliminating medical gatekeeping on the lives of TGD people.

However, significant steps remain in overcoming all of the formal legal and medical barriers that confront TGD people.

The new changes will remove two key barriers that have been a feature of gender recognition processes. With the exception of those living in the ACT, individuals seeking to change their sex marker have been required to undertake at least some form of gender reassignment surgery (GRS), and all states and territories require that individuals not be married.

The requirement for individuals to undergo GRS is a significant barrier to many TGD people having their affirmed gender recognised on their birth certificates, both because surgery is very expensive and because many TGD people do not desire to undergo surgery as part of their affirmation of gender.

The need to be single — which is aimed at ensuring that there are no marriages of people of the same sex — has meant that TGD individuals who are married have been forced to divorce to change their gender marker.

The Victorian government is arguing that its proposed change to the marriage requirement does not bring the legislation into conflict with the federal Marriage Act, which stipulates that marriages are between a man and a woman, because this requirement applies only at the time the marriage takes place and not subsequent to the marriage.

The proposed Victorian legislation, like the 2014 ACT legislation, allows TGD people to change their sex marker. The ACT legislation also provided for the introduction of a third sex marker on birth certificates of “X” for “intersex, unspecified, or indeterminate”.

In 2013, the federal government changed its policies for people wishing to amend their sex marker on their passports and with other commonwealth agencies such as Medicare and the Australian Tax Office. The changes removed the need for an individual to have undergone GRS and introduced a sex not specified “X” category.

With both the ACT and federal processes, applications need to be accompanied by a statement from a clinician that the patient is “receiving appropriate treatment or as being intersex”, which acts to pathologise TGD and intersex experiences. It also means that medical practitioners remain as gatekeepers on the lives of TGD people. The requirement for a TGD person's decision to be supported by a medical practitioner is absent from proposed Victorian legislation.

The only role for medical practitioners in the Victorian legislation is to certify that a minor wishing to change their marker is able to make an informed decision and that it is, in the medical practitioner's view, in the minor's interests to make the change. For those over the age of 16, it is assumed that they can make a decision for themselves.

An additional feature of the Victorian legislation is that it will enable individuals to have their birth certificates state that they are non-binary or list an alternative descriptor, with the only limitation being that the descriptor cannot be deemed to be offensive. This change is important as it allows a recognition of sexes and genders outside of the male-female/man-woman binary and reflects an individuals' actual identity.

The proposed Victorian legislation is important to the lives of TGD people, particularly trans women. Although trans people are protected by the Victorian Equal Opportunities Act from transphobic discrimination, under the Act and similar legislation across Australia, you cannot require a person to treat you as your affirmed gender unless your birth certificate states that it is your gender.

There are several circumstances under these acts where it is lawful to exclude individuals who are not of a specific gender, such as access to toilets, and the ability to play in sporting codes based on your affirmed gender or take up a position that is designated based on a specific gender. While this situation does not mean that organisations and companies have to discriminate in these circumstances, it does mean that they can lawfully do so.

While these changes represent significant advances in allowing TGD individuals the ability to determine their own lives, there are significant steps that need to be taken around the formal rights of transgender people.

Beyond pushing for all states and territories to adopt legislation similar to the proposed Victorian legislation, there is a continued need to decrease the gatekeeper role of doctors in determining if and when a TGD person can access medical technology to assist their gender affirmation.

Provision of hormones and other medical technology in Australia is guided by the World Professional Association for Transgender Health Standards of Care, which operates within a framework that pathologises TGD lives and ties access to medically-assisting affirmation technologies, such as hormones and surgery, to TGD people meeting doctors' expectations of what it is to be a particular gender.

TGD advocate organisations argue for an alternative model based on informed consent where individuals are able to access the medical technology they feel is appropriate to them, based on being informed of the possible impacts of that technology and consenting to use the technology based on them.

This model is at the centre of Argentina's 2012 Gender Identity Law which states “all persons older than eighteen (18) years ... will be able to access total and partial surgical interventions and/or comprehensive hormonal treatments to adjust their bodies, including their genitalia, to their self-perceived gender identity, without requiring any judicial or administrative authorisation”. This law also makes access to these technologies part of a Compulsory Medical Plan that covers all workers in formal employment.

An additional change that also needs to be made is ending the requirement for families of TGD children who wish to access Stage Two Hormones (the hormones associated with their affirmed gender) having to go to the Family Court to demonstrate that the child is able to give informed consent, a process which is both potentially traumatic and very expensive. Australia is the only jurisdiction in the world that has such a legal requirement.

There is still a long way to go to eliminate the legal and medical barriers that confront TGD people in Australia, and even more to addressing the high levels of social stigma and discrimination faced by TGD people.

However, the proposed changes in Victoria reflect the significant and rapid advances that are being made in Australia to make it easier and safer for TGD people to live their authentic lives.
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This article was originally published in Green Left Weekly #1108

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Sexist burkini ban based on Islamophobia, not secularism

Lisbeth Latham

Since the announcement of an ordinance banning the wearing of burkinis on the beaches of the French Mediterranean city of Cannes in late July, France has been swept up in a new wave of Islamophobia.

A further 17 municipalities have announced their own ordinances banning the burkini — the full-body swimsuit worn by some Islamic women. These bans have been endorsed not only by France's far right, but by the Socialist Party Prime Minister Manuel Valls.

On August 27, France's highest administrative court suspended the bans after they were challenged by rights groups. However, the ruling still gives local authorities the ability to impose the bans if they can show a “proven risk” to public order. Those supporting the bans have sought to justify them in terms of defending women's rights, France's secular society and social order. But in reality, they are sexist and anti-secular — and promote the further marginalisation of France's Islamic community. The July 28 ordinance in Cannes prohibiting the burkini states: “Access to beaches and swimming in Cannes is prohibited … until August 31, to any person not properly dressed, in a way which is respectful of morality and secularism and that respects the rules for hygienic and safe swimming.” David Lisnard, Cannes's Mayor and a member of Nicolas Sarkozy's right-wing Les Republicains party, has defended the city's ordinance on the basis that only radicals would be upset by it. Lisnard described the burkini as “the uniform of extremist Islamism, not of the Muslim religion”. Lisnard has also argued that the ordinance is needed to maintain public order against a background of terror threats. But Lisnard's argument only makes sense if you accept the motivations that he projects onto women who choose to wear a burkini. France's Human Rights League and the Collective Against Islamophobia in France, on the other hand, have challenged the bans as an illegal restriction on the religious rights of individuals. However, the Nice administrative tribunal's ruling, that upheld the ban in Nice, said: “The state of emergency context and recent Islamist attacks in particular in Nice … wearing a distinctive dress, other than a usual swimwear, can indeed be interpreted as not being, in this context, a simple sign of religiosity.” Supporting the bans, Valls said the burkini represents “the enslavement of women” and reflects an “archaic vision” of feminine modesty “not compatible with the values of France”. Valls also endorsed the idea that banning the wearing of burkinis could contribute to public safety by saying “in the face of provocation, the nation must defend itself”. Although Valls has avoided supporting the idea of a France-wide ban of the burkini, this should not be seen as opposition on Valls's part to France-wide attempts at controlling the clothes of Muslim women. In April, he publicly called for a ban on wearing hijabs at France's universities. The bans on burkinis are not the first time that women's rights have been mobilised in France to justify bans on the clothes of Muslim women. Similar arguments were made in support of the 2004 law on secularism and conspicuous religious symbols in public schools, which banned the wearing of hijabs in public schools. There was also controversy in 2010 around the decision by the New Anti-capitalist Party (NPA) to stand Ilham Mousaid, a member of the far-left party who chose to wear a hijab, as a candidate in regional elections, and to support the 2010 law banning the wearing of face coverings in public. This was effectively a ban on the niqab, although popularly referred to as the burqa ban. This mobilisation of public concern over the rights of women is problematic on a number of levels. First, as University of Toulouse academic Rim-Sarah Aloune suggests, it creates the idea that the struggle of women over the right to choose how they dress only operates to reduce the amount of clothing that women are required to wear. But, as Aloune says, “women's rights imply the right for a woman to cover up”. Indeed, women workers in a number of Western countries have struggled to desexualise the clothes they have been required to wear — for example, in the airline industry. Secondly, it creates a false dichotomy between “archaic” and “misogynistic” Islamic cultures and “progressive” Western cultures. This dichotomy ignores the sexism that exists in Western societies. Finally, these bans in the name of protecting the rights of Muslim women in France have all worked to exclude Muslim women from French social life — whether it is from schools; standing for election to public office; going out in public or swimming at the beach. This alone demonstrates the thoroughly sexist character and effect of such bans. Defence of France's secular society may seem an easy argument to support bans against “religious clothing” but it isn't. This is particularly the case with efforts to justify bans on the burkini — its advocates and defenders are also arguing that the burkini is not religious dress. This sleight of hand is primarily aimed to cover the idea that the bans are themselves Islamophobic. However, arguments justifying attacks on Muslims in the name of defending secularism (which are not limited to France) are clearly hypocritical. They are overwhelming concerned with the actions of marginalised Muslims, with little concern over the influence of Christianity on Western states. But they also reflect an extremely one-sided understanding of secularism. Secularism is not simply a question of religion not influencing the state. Secularism is also about freedom for people to practice their religions without interference from the state. Part of the problem with the debates around the clothes of Muslim women in France is that decisions by individual Muslims regarding the clothes that they choose to wear is perceived as being influenced by religion in a way that clothing decisions — and other actions — by non-Muslims are not. This results in Muslims, particularly Muslim women, being seen as having less agency in their actions, particularly their choice of dress. It results in the most mundane actions being perceived as being religious when performed by Muslim women. An example of this can be seen with the 2004 ban on hijabs in public schools. In response to this ban, some Muslim students began wearing bandanas — which other people in French society also wore. In some schools, the wearing of bandanas by Muslim girls was then policed by schools and if a bandana was deemed “too modest” then the wearer was liable to be excluded from school. This position was upheld by the French Council of State — France's highest court — in 2006 on the basis that the bandana was deemed by the court to have been worn for a religious reason. The wave of bans against the burkini is also motivated on the basis of promoting “public order”. Instead, it will achieve the opposite. As NPA member Ugo Paleta points out, linking the wearing of particular clothes associated with Muslims, such as the burkini, with support for terrorism creates an image of all Muslims as potential threats to French society. It works to strengthen the discourse within France regarding the alleged “incompatibility of Islam with the French Republic”. The effect is that Muslims come to be seen as a “foreign body” within French society. This language serves to not only justify the draconian actions of French police in fining and excluding Muslim women from the beach for wearing burkinis and other covering clothing. It also legitimises the rising levels of Islamophobic violence against France's Islamic community — and places responsibility for this violence at the feet of the community rather with the perpetrators of that violence. ------------------------------------------------------------------------------- This article was originally published in Green Left Weekly #1108

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