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KAREN GURNEY
The opinion that any monarch receiveth his power by covenant, that is to say, on condition, proceedeth from want of understanding this easy truth: that covenants being but words, and breath, have no force to oblige, contain, constrain, or protect any man, but what it has from the public sword.
Thomas Hobbes Leviathan (1651) ch xviii
On 27 May 2004, the Attorney General for Victoria, the Hon Rob Hulls MP, released a 10-year plan which the government claims will make Victoria’s justice system more efficient, cohesive and sensitive to the needs of victims, minorities and the disadvantaged. Mr Hulls said that the Attorney-General’s Justice Statement[1] was a blueprint setting the Bracks government’s vision for justice for the next five to ten years and the product of the most comprehensive analysis ever undertaken of the Victorian legal system by the Department of Justice.[2]
The Justice Statement lauded the government’s proposed introduction of a charter of human rights and responsibilities. More recently, the government appointed a Human Rights Consultation Committee to consider important issues including whether there is indeed a need for such a charter and, if so, its eventual form and its content. The reforms it heralds are purportedly supported by an all-of-government commitment to tackle discrimination in the community by improving compliance with the Equal Opportunity Act 1995 (‘the Act’) and by vetting all legislation to ensure unintended discrimination does not happen.[3]
Unfortunately, the government appears not to have understood the basic truth enunciated by Hobbes, that actions, not words are needed to advance human rights. Instead of leading by example and demonstrating its commitment to a human rights agenda that benefits the most disadvantaged in our community, it has continued to enshrine discrimination in legislation enacted since that fine statement was made. The ‘public sword’ is already a blunt instrument.
The world’s leading experts on transsexualism now regard it as another of the many biological variations that occur in human sexual formation — an intersex condition — where the sex indicated by the phenotype and genotype is opposite the morphological sex of the brain.
People with transsexualism are therefore born with both male and female sexual characteristics and, like many others with atypical sexual development, seek rehabilitation of their phenotype and endocrinology to accord with their dominant sexual identity; an identity which is determined by the structure of the brain. Transsexualism is about being a particular sex, not doing it. It is also about recognising gender norms, not challenging them.
In a report into discrimination, harassment and vilification of sexual minorities conducted by the Victorian Gay and Lesbian Rights Lobby, people with transsexualism were the most marginalised of all and consistently experienced the highest levels of anti-social responses from the wider community.[4] The hardest challenge facing people with transsexualism is not the fact of their transsexualism; rather, it is the reaction of others to their predicament and the continuing denial of their reality. That denial is no more profoundly felt than when it is constituted by the denial of the individual’s contemporaneous sex by the state.
Back in May last year, at the same time the government was announcing the Justice Statement, the Parliament gave its approval to legislation allowing people with transsexualism born in Victoria to correct the record of their sex on the Register of Births, Deaths and Marriages. While in many ways this legislation set a new standard for transsexual rights in Australia, the rights granted by the now amended Births, Deaths and Marriages Registration Act 1996 (Vic) were made conditional absolutely on the applicant being an adult, unmarried and having undergone sex affirmation surgery.[5]
[T]he child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection …[6]
Unlike the case where a child is born with atypical reproductive organs and a recommendation to initiate early surgical intervention is still the norm, children diagnosed with transsexualism usually have to wait until they are at least 18 years of age before they can obtain similar medical rehabilitation of their genitalia.
As former Chief Justice Alistair Nicholson pointed out in the Family Court just months before Victoria enacted its 2004 amendment,[7] these children experience great distress on account of the incongruity between their physical formation and their sexual identity and are unreasonably deprived the right to legal recognition of the latter by the provisions of the Act and each of its counterparts in Australia. The provision is clearly discriminatory and contrary to the best interests of children with transsexualism, yet Nicholson CJ’s entreaties[8] were ignored or, at best, disregarded without explanation.
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. This Act binds the Crown in right of the Commonwealth, the States and Territories,[9] and applies, inter alia, to make discrimination on the basis of age unlawful in the supply of goods and services.[10] A person acting in direct compliance with a law of a State or Territory, however, is exempted from the provisions of the Act. This would appear to render the Registrar immune from an action based in age discrimination under these Commonwealth provisions.[11] The young have been failed, again.
[States] recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. [12]
The absolute requirement that applicants have undergone sex affirmation surgery before being able to obtain a correction of their record of sex on the Register is, on its face, a reasonable and necessary one. The overwhelming need to undergo both hormonal and surgical rehabilitation is, after all, the very basis of the differential diagnosis that separates those with transsexualism from the quite disparate, but easily confused personality disorders of transvestism, schizophrenia and the more recent ‘transgender’ phenomenon. Surgery also provides the certainty that law and society need to ensure social stability, and is the condition precedent applied in all jurisdictions except South Australia and Western Australia. As was explained above, however, the surgery requirement has unfortunate consequences for some people on account of their inability to have the procedure for medical reasons.
In the case of the young, early surgery is not generally appropriate and this medically imposed restriction operates to the detriment of their right to self-determination, including legal recognition of their sexual identity. A similar impediment to the rights of the old and the sick exists because, like young people, the medical experts are unwilling to subject them to the risks of major invasive surgery; the existence of contra-indicating medical concerns becomes the basis for precluding them from attaining legal sexual identity.
In his erudite judgment in the matter of Re Kevin, Chisholm J explained that:
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.[13]
A simple, compassionate exemption could have been included in the legislation providing that, where a person is unable to undergo full sex affirmation procedures for valid medical reasons, provided they have a diagnosis of transsexualism and have been receiving hormonal treatment for it, they are exempt from the surgery requirement. It wasn’t, and another small segment of a highly marginalised group was consequently left to deal with the trauma of discrimination inherent in the law.
For men with transsexualism, however, the issue is more complex, as indeed are the various surgical procedures that Victorian legislation requires them to accede to. Metoidioplasty and phalloplasty, the two major surgeries that assist a man with transsexualism to present a male phenotype are only offered by one clinic in Australia, the Monash Gender Dysphoria Clinic, and its surgeon has halted all new procedures pending the outcome of litigation the Clinic is presently embroiled in. The only alternative is for individuals requiring this treatment to travel to Thailand, Europe or the United States to obtain it. It does not seem unreasonable, in these circumstances that the government should act to both protect the Clinic from litigation out of statute and properly fund the provision of sex affirmation surgeries in the public system.
The Victorian government has even created a new legal oxymoron with respect to the extent of phenotypic alterations. Whereas a man with transsexualism born and living in Victoria prima facie 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. The inescapable conclusion to be drawn from such an incongruous situation is that there is a serious lack of understanding at the highest levels in respect of both the medical reality of the treatment options for transsexualism and their legal consequences.
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State … The right of men and women of marriageable age to marry and to found a family shall be recognized.[14]
The hopes of those few people with transsexualism whose marriage had survived the trauma of their transition, that the Victorian government would adopt the common law position so clearly articulated in Re Kevin,[15] were dashed by the inclusion of a requirement that a person be ‘unmarried’ in order to be eligible to apply for a correction of the record of their sex and obtain a corresponding birth certificate.
The government’s decisions have been described as ‘inhumane’ and a consequence of ‘misplaced legally expressed homophobia that fails to appreciate the workings of the marriage law of Australia’.[16]Nothing that is done subsequent to parties entering into a lawful marriage, apart from divorce or the death of one of them, can alter the validity of that marriage and nothing the States legislate can alter the law relating to marriage. Thus:
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.[17]
The Equal Opportunity Commission Victoria and others warned the government that such a provision was discriminatory in the terms of both State and federal legislation, would limit the effectiveness of the proposed reforms, and would be contrary to the common law.[18] But the government persisted and an applicant who is presently married now has to decide which is more important to them, their marriage and the rights of their family, or their replacement birth certificate — an extremely difficult choice after such a long wait. This stance is patently at odds with the common law and international obligations,[19] and is patently ultra vires the provisions of s 6 of the Sex Discrimination Act 1984 (Cth) that prohibit discrimination on the ground of marital status.
There is a cruel irony in all this, too. No doubt blinded to reason by fear of being embroiled in the same-sex marriage debate, the government created yet another legal oxymoron; this time 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 all other circumstances would be a female for the purposes of all the laws of Victoria,[20] 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.
Where is the vaunted justice here? For that matter, where are the compassion and sense of a government that has just had its Justice Department complete, at great expense, a two-year study into the ramifications of discrimination for those who are marginalised by our society?
The Attorney-General's Justice Statement and accompanying commitments to advance human rights contain some fine sentiments and, if honoured and fully implemented, will no doubt eventually make Victoria a better and fairer place to be for all. The early signs are not good, however, and words alone will not suffice. If a government cannot comprehend the issues and satisfy the simple needs of the most marginalised of its citizenry, it is likely to never be able to achieve the lofty ideals to which it aspires.
It’s left to our friend Hobbes to have the last say on it:
Words are wise men’s counters, they do but reckon by them: but they are the money of fools, that value them by the authority of an Aristotle, a Cicero, or a Thomas, or any other doctor whatsoever, if but a man.[21]
[1] Victorian Government, Attorney General’s Justice Statement (2004) <http://www.justice.vic.gov.au/CA2569020010922A/page/Resources-Publications-Attorney-General%27s+Justice+Statement?OpenDocument & 1=0-Resources~ & 2=0-Publications~ & 3=0-Attorney-General%27s+Justice+Statement~> at 14 February 2006.
[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] Justice Statement, n 1 above, 18.
[4] Victorian Gay and Lesbian Rights Lobby, Enough is Enough: A Report on Discrimination and Abuse Experienced by Lesbians, Gay men, Bisexuals and Transgender People in Victoria (2000).
[5] Births, Deaths and Marriages Registration Act 1996 (Vic) s 30A(1).
[6] Preamble to the United Nations Convention on the Rights of the Child opened for signature 20 November 1989 (entered into force 2 September 1990).
[7] Re Alex: Hormonal Treatment for Gender Identity Dysphoria [2004] FamCA 297 (‘Re Alex’).
[8] Re Alex [2004] FamCA 297, 225-41.
[9] Age Discrimination Act 2004 (Cth) s 13.
[11] But possibly not from an action grounded in ‘impairment’ in the federal jurisdiction. In Menzies v Waycott [2001] VCAT 13, a discrimination action was successfully mounted in the Anti-Discrimination List of VCAT on the ground of ‘impairment’ prior to the addition of ‘gender identity’ to the list of attributes protected under the Equal Opportunity Act 1995 (Vic).
[12] International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976) art 11.
[13] Re Kevin (validity of marriage of transsexual) [2001] FamCA 1074, 305.
[14] International Covenant on Civil and Political Rights, opened for signature 16 December 1966 (entered into force 23 March 1976) art 23.
[15] For the purpose of ascertaining the validity of a marriage under Australian law, the question whether a person is a man or a woman is to be determined as at the date of the marriage. Re Kevin [2001] FamCA 1074, 330.1.
[16] Rachael Wallbank, ‘Re Kevin in Perspective’ [2004] DeakinLawRw 22; (2004) 9(2) Deakin Law Review 461, 466.
[17] Ibid.
[18] Equal Opportunity Commission Victoria, ‘Submission in Response to the Attorney-General’s Advisory Committee on Gay, Lesbian, Transgender and Intersex Issues Discussion Paper: Changes to Birth Certificates for Transsexual People’, September 2003. Copy obtained under Freedom of Information.
[19] Especially, but not limited to the United Nations Convention on the Elimination of All Forms of Discrimination against Women, which is incorporated into the Sex Discrimination Act 1984.
[20] Births, Deaths and Marriages Registration Act 1996 (Vic) s 30G.
[21] Thomas Hobbes Leviathan (1651), ch 4.
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