After decades of campaigning, it finally looks like Australia is making progress in eradicating discrimination on the grounds of gender identity and gender expression.  In late 2011, the High Court of Australia confirmed that transsexual and transgender people living in West Australia have the right to have their gender affirmed if they are ‘socially identified’ as their gender, without requiring them to undertake every possible surgical procedure available to change or remove their reproductive organs. This followed the revision of Australia's passport policy to allow people of diverse sex and gender to affirm their sex and gender on their passport without requiring surgery or that they identify as either ‘male’ or ‘female’.  Significantly, it allows the use of an ‘X’ designator for those who wish to identify as intersex or of indeterminate gender.  

The upcoming reform of Australia’s anti-discrimination laws will be the vehicle for implementing a welcome election commitment by the Australian Government (shared by the Coalition Opposition) to prohibit discrimination on the basis of ‘sexual orientation and gender identity’. As a transgender woman and advocate for members of LGBTIQ communities, my hope is that these reforms will promote substantive equality for all people of diverse sex and gender. I should note that this blog focuses on the reforms as they affect the transgender community and I look forward to reading Gina Wilson’s upcoming blog which will provide an intersex perspective on these issues.

The Government Discussion Paper on consolidating Australia’s anti-discrimination laws proposes protections for ‘gender identity’, but does not define what this means and does not include gender expression.  Gender identity should be recognised as each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth.  It is important that Australia’s anti-discrimination laws also provide protections on the basis of ‘gender expression’, which is about how people express their gender through behaviour, appearance, mannerisms, voice, style of dress and other forms of communication.

In 2011, Canada passed Bill C-389: An Act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression) to introduce substantive rights protection for people whose gender identity or gender expression does not neatly fit ‘male’ or ‘female’ gender norms or an assigned-birth category (transgender, transsexual, genderqueer, agendered, and many more).  The amendments prohibit discrimination on the grounds of gender identity and gender expression, as a state-sanctioned recognition that discriminating against people because of their gender identity or gender expression is unacceptable under law.  If Australia is serious about providing real protections against discrimination, it should follow leading international standards – such as the Canadian Human Rights Act and the Yogyakarta Principles – and provide clearly defined and strong protections for ‘gender identity’ and ‘gender expression’.

This is about preventing discrimination and promoting the equal enjoyment of human rights for all Australians.  One part of this project is making sure that the language we use includes and recognises a section of the population which has been (and continues to be) ignored, silenced, marginalised and discriminated against.

It is a sad reality that discrimination is experienced all too often by people of diverse sex and gender continues every day.  Research has found that 87% of transgender people had experienced discrimination in some form, often with tragic consequences. Transgender people also face higher risk of suicide and rates of depression. Gender queer, androgynous or other individuals that do not fit neatly within the dominant ‘sex binary’ world view also experience discrimination, harassment and vilification because of their differences.

Discrimination is not getting a job you’re more than qualified for because of other people’s ideas about how you should look, talk or act.  It’s when your employer thinks it is acceptable to make a joke about ‘what’s in your pants’.  Discrimination is constantly having to explain to people about your gender and dealing with multiple hurdles to access medical treatment and services.  It is being refused emergency accommodation or refused rental accommodation when housing providers and estate agents meet you in person or look at your sex or gender on official documentation.  Discrimination is having to fight for your relationships and family to be recognised as equal.  It is being told by a stranger that you’re in the wrong public bathroom and facing a higher risk of violence and harassment (even death) every day of your life.

If some of the exemptions for religious organisations contemplated within the Discussion Paper are not appropriately justified and qualified, they could effectively undo the effectiveness of any protections contemplated.  Blanket exemptions for religious organisations without reasonable qualifications (eg, where it is essential to the ‘inherent requirements’ of the job) are particularly troubling.  The sheer number of religious institutions around Australia – including prominent schools, charities, health providers, aged care facilities and social services – make it difficult to justify sweeping or unqualified religious exemptions.

The reform of Australia’s anti-discrimination laws is an opportunity to entrench robust and effective safeguards for people of diverse sex and gender both for now and into the future.  Australia’s federal anti-discrimination laws need to be sufficiently broad and adaptive for whatever the future may hold, such as protecting against increasing instances of cyber-bullying, cyber-stalking and online vilification.  It should also aim to change discriminatory stereotypes, prejudices and practices to promote the right to equality in the long-term.  The stakes are high, and the bare minimum of legal protection is just not good enough.

For more information, have a look at the Australian Human Rights Commission’s Consultation Report on this issue.

Sally Goldner has been out of the gender closet for sixteen years and is a longstanding active participant in Melbourne’s queer community – including her current involvement with TransGender Victoria, 3 CR’s “Out of the Pan,” the Victorian Gay & Lesbian Rights Lobby and Zoe Belle Gender Centre.