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‘Government must act on trans issues’
This week in the Star Observer a story by Andie Noonan
A transgender group has called on the Gillard Government to move on a promised review of Australian laws to improve the rights of transgender people.
The request follows a recent German Constitutional Court ruling that a German law, which forces transgender people to undergo surgery or sterilisation to determine their official gender status, is unconstitutional.
TransGender Victoria spokesperson Sally Goldner said the German court decision is an important step forward and Australia should take heed.
“The German decision sets a great precedent and morale boost for trans people worldwide,” Goldner told the Star Observer.
Although Australian state and territory laws differ when it comes to determining a person’s legal sex on their birth certificate, surgery is still used as the main determiner for a change to official sex status.
Last year, two trans men in Western Australia lost the right to be considered legally male, after an initial court decision giving them the go-ahead was contested by the state’s Attorney-General’s office and overturned.
The ruling was challenged because the WA Government argued the men still possessed their female reproductive organs and could potentially bear children.
The two are now set to appeal the decision in the High Court.
“I think the German court ruling is spot on to say sterilisation or sex affirmation surgery is not on and we’d argue, in terms of trans … some degree of permanency of self-affirmed identity of who you are … rather than a strictly surgery-based model,” Goldner said.
In 2009 the Australian Human Rights Commission released the Sex Files report which called for the definition of sex affirmation to be broadened so surgery is not the only criterion for a change in legal sex.
The report also called for a relaxing in evidence needed for legal recognition, recommended better information on the processes and criteria for legal recognition of sex be made available, and said, where possible, sex and gender should be removed from government documents.
“The Australian Government, in conjunction with the states and territories, needs to move urgently on Sex Files and copy that German decision,” Goldner said.
“Before last year’s federal election there was supposed to be a committee doing an audit of federal laws, which seemed reasonable but there’s been no movement on that since the election.”
At the National LGBTI Health Alliance’s Health in Difference conference last year, parliamentary secretary for social inclusion Senator Ursula Stephens said the federal Attorney-General’s office would establish a working group to respond to the recommendations.
The Attorney-General’s office has not yet responded to a Star Observer enquiry about whether the working group has, in fact, been established.
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3 Replies
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all well and good, penny, but julia can’t even get her head around marriage equality (or is it a case of the alp bludgeoning the rest of australia with a set of values that has nothing whatsoever to do with labor issues?). so where does that put transgender rights and issues? (sigh/roll eyes). i guess every long journey begins with a small step. we live in hope.
virginia xo
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Give Phillip Ruddock the Attorney General’s job back. (Oops. Did I say that. Soap & water).
We gained government acceptance of our marriage rights, i.e., able to marry in our corrected gender, by default, while HoWARd codefied his definition of marriage – the government appeal against the Full Bench of the Family Court’s decision to uphold the decision in Re: Kevin was left to wonder.We need to see what the German government’s response to this constitutional ruling is; and how does this fit with our own constitution. Marriage is the responsibility of the Federal Government while records of Birth & Death belong to the States.
When you think how things have changed over the past 25 years, from South Australia issuing “supplimentary certificates”, but mandating we out ourselves whenever a birth record was required, to my NSW Birth Certificate that simply states I am female, and a notation at the bottom that I have changed my name. One step forward, 2 back – not all of the States have been as generous as NSW. I understand there have been some recent legislative clawbacks in the UK.
We need to remain vigilent in demanding the same considerations & rights as any man or woman. Maybe one day stem cell research will allow us to develop ovaries and a uterus. Then I’ll be happy. Who wants to take that one to the Ethics committee?
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Interesting article Penny.
Couple of things that make the situation in Germany somewhat different than in Australia.
The German Constitution, or Basic Law, (ie. the Grundgesetz) contains a very comprehensive Bill of Rights, under which the German Constitutional Court can invalidate legislation which violates any of the human rights contained therein. In addition, as part of the EU, Germany is required to adhere to the European Convention of Human Rights, and any individual may appeal to the European Court of Human Rights if their rights have been violated and there are no domestic remedies which will safeguard those rights.
In Australia, we do not have a Federal Bill of Rights in our Constitution or in oridnary legislation (some states have a legislative bill of rights – Victoria and the ACT – Tasmania is currently considering one).
Last year the Rudd Government decided against legislating a national Bill of Rights, a decision that was subsequently confirmed by the Gillard Government. The Coalition are staunchly opposed to having a Federal Bill of Rights, either in the Constitution or in ordinary legislation.
In some states, gender identity is identified as an attribute which is protected under anti-discrimination laws. However, there are no Federal discrimination laws to protect against discrimination on the basis of gender identity. The Australian Human Rights Commission are looking at this issue at the moment and this was the subject of a public consultation late last year (which I have referred to in another post). The hope is that this will lead to a recommendation for extending Federal anti-discrmination laws to cover gender identity and also sexuality. But, ultimately that will be a question for Cabinet.
So, in summary, Australia doesn’t have the same human rights protections as exist in Germany, where the Constitutional Court can strike down such outrageous legislation. Hopefully we can move forward a bit with the Australian Human Rights Commission inquiry, but this will only be baby steps.
And the debate for a national Bill of Rights in Australia will go on …
