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The Law and where we stand!
Further to the debate about have we a voice and the lack of protection under the various state Anti Discrimination and EEO Laws I have been researching the different ACTs in this country to determine how they affect us all and which ones need to be changed to make them Transgender friendly. This is a long post so I hope it all fits.
The NSW ANTI-DISCRIMINATION ACT 1977 the wording looks promising untill you read the definition:-
Quote:New South Wales Anti-Discrimination Act 1977 (NSW)
Grounds of unlawful discrimination
Race, (including colour, nationality and national or ethnic origin), sex (including pregnancy), marital status, disability, homosexuality, age (compulsory retirement only), transgender, carer’s responsibility.Now this is the part of the NSW- SECT 4 that needs to be changed.
Quote:“recognised transgender person” means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction.Apart from the obvious problem associated with the wording of this act it affords no protection under the ACT for anyone who identifies as Transgendered. For those that can’t see the problem, the only protection under the ACT for Transgendered persons is for those who have already undergone transition and are now identified as female. Hence they no longer need protection under the NSW Anti Discrimination Act as Transgendered Persons.
Next I will draw your attention to the:-
Quote:Australian Capital Territory Discrimination Act 1991 (ACT)
Grounds of unlawful discrimination
Sex, sexual harassment, sexuality, transsexuality, age, profession, trade, occupation or calling, relationship status, status as a parent or carer, pregnancy, race, racial vilification, religious or political conviction, impairment, membership or non-membership of association of employers or employees, breastfeeding, spent convictions, disability, religious practice in employment, having had one of the enumerated attributes in the past, or association with person with an above attribute.The definitions within the act are:-
Quote:(1) This Act applies to discrimination on the ground of any of the
following attributes:
(a) sex;
(b) sexuality;
(c) gender identity;
(d) relationship status;
(e) status as a parent or carer;
(f) pregnancy;
(g) breastfeeding;
(h) race;
(i) religious or political conviction;
(j) disability;
(k) industrial activity;
(l) age;
(m) profession, trade, occupation or calling;
(n) association (whether as a relative or otherwise) with a person
identified by reference to an attribute referred to in another
paragraph of this subsection;
(o) spent conviction within the meaning of the Spent Convictions
Act 2000.
(2) In this Act, a reference to an attribute mentioned in subsection (1)
includes—
(a) a characteristic that people with that attribute generally have;
and
(b) a characteristic that people with that attribute are generally
presumed to have; and
(c) such an attribute that a person is presumed to have; and
(d) such an attribute that the person had in the past but no longer
has.As you can see this is a little more Transgender friendly than it at first appears. Even more friendly when we read the definition of Gender Identity in the footnotes of this ACT:-
Quote:gender identity means—(a) the identification on a genuine basis by a person of one sex as a
member of the other sex (whether or not the person is
recognised as such)—
(i) by assuming characteristics of the other sex, whether by
way of medical intervention, style of dressing or
otherwise; or
(ii) by living, or seeking to live, as a member of the other sex;
or
(b) the identification on a genuine basis by a person of
indeterminate sex as a member of a particular sex (whether or
not the person is recognised as such)—
(i) by assuming characteristics of that sex, whether by way
of medical intervention, style of dressing or otherwise; or
(ii) by living, or seeking to live, as a member of that sex.The Northern Territory Act is definately not TG friendly:-
Quote:Northern Territory Anti-Discrimination Act 1996 (NT)
Grounds of unlawful discrimination
Race, sex, sexuality, age, marital status, pregnancy, parenthood, breastfeeding, impairment, trade union or employer association activity, religious belief or activity, irrelevant criminal record, political opinion, affiliation or activity, irrelevant medical record, or association with person with an above attribute.The only definition or even mention of anything remotely Transgendered in this Act:-
Quote:sexuality means the sexual characteristics or imputed sexual characteristics of heterosexuality, homosexuality, bisexuality or transsexuality.Queensland has some promising wording in its act:-
Quote:Queensland Anti-Discrimination Act 1991 (QLD)
Grounds of unlawful discrimination
Sex, relationship status, pregnancy, parental status, breast feeding (goods and services only), race, age, physical impairment, religion, political belief or activity, trade union activity, lawful sexual activity, gender identity, sexuality, family responsibilities, or association with a person who has any of these attributes.This is the definition within the Act:-
Quote:124A Vilification on grounds of race, religion, sexuality or gender identity unlawful
(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.The dictionary definition for this Act defines Gender Identity as:-
Quote:gender identity , in relation to a person, means that the person—
(a) identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex;
or
(b) is of indeterminate sex and seeks to live as a member of a particular sex.Definately a friendly version of the Anti Discrimination Laws.
As is the Victorian ACT:-
Quote:Victoria Equal Opportunity Act 2010(VIC)
Grounds of unlawful discrimination
Sex, sexual orientation, gender identity, pregnancy, breastfeeding, marital status, status as a carer, age, race (including colour, nationality, ethnic or national origin), parental status, physical features, childless or a de facto spouse, lawful religious or political belief or activity, impairment (including physical impairment, mental illness, mental retardation), industrial activity, lawful sexual activity, or personal association with persons having any of the above attributes.The dictionary entry for this act is:-
Quote:gender identity means—(a) the identification on a bona fide basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such)—
(i) by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or
(ii) by living, or seeking to live, as a member of the other sex; or
(b) the identification on a bona fide basis by a person of indeterminate sex as a member of a particular sex (whether or not the person is recognised as such)—
(i) by assuming characteristics of that sex, whether by means of medical intervention, style of dressing or otherwise; or
(ii) by living, or seeking to live, as a member of that sex;South Australia also has some promising wording:-
Quote:South Australia Equal Opportunity Act 1984 (SA)
Grounds of unlawful discrimination
Sex, sexuality, martial status, pregnancy, race, age, physical and intellectual impairment, mental illness, association with a child, chosen gender, caring responsibilities, religious dress (in work or study), and spouse or partner’s identity.This Act seems to a long way further towards being a Transgender Friendly Act than some of the others:-
Quote:(2a) For the purposes of this Act, a person discriminates on the ground of chosen gender—
(a) if he or she treats another unfavourably because the other is or has been a person of a chosen gender or because of the other’s past sex; or
(b) if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—
(i) the nature of the requirement is such that a substantially higher proportion of persons who are not persons of a chosen gender comply, or are able to comply, with the requirement than of those of a chosen gender; and
(ii) the requirement is not reasonable in the circumstances of the case; or
(c) if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of a chosen gender, or on the basis of a presumed characteristic that is generally imputed to persons of a chosen gender; or
(d) if he or she requires a person of a chosen gender to assume characteristics of the sex with which the person does not identify; or
(e) if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.And how do the South Australian Government define “Chosen Gender”
Quote:(5) For the purposes of this Act, a person is a person of a chosen gender if—
(a) the person identifies on a genuine basis as a member of the opposite sex by
assuming characteristics of the opposite sex (whether by means of medical
intervention, style of dressing or otherwise) or by living, or seeking to live, as
a member of the opposite sex; or
(b) the person, being of indeterminate sex, identifies on a genuine basis as a
member of a particular sex by assuming characteristics of the particular sex
(whether by means of medical intervention, style of dressing or otherwise) or
by living, or seeking to live, as a member of the particular sex.And also Tasmania surprise surprise:-
Quote:Tasmania Anti-Discrimination Act 1998 (TAS)
Grounds of unlawful discriminationAge, breastfeeding, disability, family responsibilities, gender, industrial activity, irrelevant criminal record, irrelevant medical record, lawful sexual activity, marital status, relationship status, parental status, political activity, political belief or affiliation, pregnancy, race, religious activity, religious beliefs or affiliation, sexual orientation, association with a person who has, or is believed to have any of these attributes.
You can discriminate against Transgendered people in Tasmania if:-
Quote:27. Gender
(1) A person may discriminate against another person on the ground of gender –
(a) in a religious institution, if it is required by the doctrines of the religion of the institution; or
(b) in education, if it is for the purpose of enrolment in one-gender schools or hostels; or
(c) in employment, if it is for the purpose of the residential care of persons under the age of 18 years; or
(d) in employment, if it is based on a genuine occupational qualification or requirement in relation to a particular position; or
(e) in accommodation, if it is shared accommodation for less than 5 adult persons; or
(f) in the provision or use of facilities, if those facilities are reasonably required for use by persons of one gender only.
(2) A person may discriminate against another person on the ground of gender in respect of the use of any benefit provided by a club if –
(a) it is not practicable for the benefit to be used simultaneously or to the same extent by both men and women; and
(b) the benefit is provided –
(i) for the use of men and women separately from each other; or
(ii) to men and women in a fair and reasonable proportion.
(3) A person may discriminate against another person on the ground of gender in respect of membership of a club if the membership of the club is available only to persons of one gender.Their definition of Gender is also a little lacking:-
Quote:transsexual means a person of one sex who –
(a) assumes the bodily characteristics of the other sex by medical or other means; or
(b) identifies himself or herself as a member of the other sex; or
(c) lives or seeks to live as a member of the other sex;
transsexuality means the condition of being a transsexual;And so to Western Australia who’s statement may be a little ambiguous:-
Quote:Western Australia Equal Opportunity Act 1984 (WA)
Grounds of unlawful discrimination
Sex, sexual orientation, marital status, pregnancy, race, religious or political conviction, age, racial harassment, impairment, family responsibility or family status, gender history.The definition of Gender History in WA is not at all promising as it falls into the same trap as the NSW laws by mixing sex and Gender into the same definitions:-
Quote:35AA. Gender history
(1) For the purposes of this Part, a person has a gender history if the person identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex.
(2) In subsection (1) — opposite sex means a sex of which the person was not a member at birth.
[Section 35AA inserted by No. 2 of 2000 s. 28.]
35AB. Discrimination on gender history grounds
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator ) discriminates against a gender reassigned person on gender history grounds if, on the ground of the gender reassigned person having a gender history, the discriminator treats the gender reassigned person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person not thought by the discriminator to have a gender history.
(2) A reference in subsection (1) to something done on the ground of a person having a gender history includes a reference to something done on the ground of —
(a) a characteristic that appertains generally to persons who have a gender history; or (b) a characteristic that is generally imputed to persons who have a gender history.
(3) For the purposes of this Act, a person (in this subsection referred to as the discriminator ) discriminates against a gender reassigned person on gender history grounds if on the ground of the person having a gender history the discriminator —
(a) treats the person as being of the person’s former sex; or
(b) requires the person to comply with a requirement or condition —
(i) with which a substantially higher proportion of persons who do not have a gender history comply or are able to comply; and
(ii) which is not reasonable having regard to the circumstances of the case; and
(iii) with which the gender reassigned person does not or is not able to comply.The definitions section further confines the meaning of Gender Identity under this act:-
Quote:gender reassigned person means a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000 or a certificate which is an equivalent certificate for the purposes of that ActThis is by no means an exhaustive study of the different Act’s but I hope it illustrates the need for some changes to be made in this country.
So some of the act’s have a completely hollow statement with regard to anyone who identifies as Transgendered. Some of the States have adequate Laws but the rest do not. I hope that this illustrates the need for action that I have been advocating for some time here on the subject of discrimination.
I might add here that anyone who uses a Ladies Loo is treading on dangerous ground, it would only take one disgruntled female user of the same facility to put the cause of TG People back 50 years or so, especially in Tasmania. One women to run out of Loo screaming about a freak in a dress, and that persons life would go down the toilet literally with absolutely no claim on the title of Transgendered Person. -
5 Replies
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Moderator
Quote:This post has been moved here – because it talks about anti-discimination law and where it was posted there was no discussion about discrimination legislation. It doesn’t completely fit here either but short of editing the post there is nothing I can do to fix that. The original post was placed here:
http://forum.tgr.net.au/cms/forum/F347/5236-236There seems to be a lot mixed messages in this and some of the other forums. There is at the moment a community of one because of this confusion, if the forums can be a little more focused and clearer about subject at hand I am sure that this community would be more cohesive and proactive towards achieving a better deal for Transgendered People in NSW.
Where the idea for acceptance through legislation came from is a complete and utter mystery to me. I have never put forward the idea that getting unconditional inclusion in the anti-discrimination laws would equal acceptance.
The only thing that this unconditional inclusion as Transgendered within the legislation would achieve, is to allow Transgendered People if they so desired the right to call themselves Transgendered. This is a right that we all deserve, not necessarily a right we would as individuals exercise, but a right that we would all have if we wanted it.
There is no magic cure-all for family and the public’s acceptance of us and I am not even attempting to suggest that there may be. That would be completely ludicrous of anyone to even suggest, let alone expect. Acceptance will come with time, lots of time probably but in the mean time we need to be accepted under the anti discrimination laws as Transgendered without having to become fully transitioned Transsexuals to achieve this.
NSW is far behind many of the other states in it’s recognition and understanding of the meaning of the word Transgendered, and this is the object of my, for want of a better word, need for activism in achieving this goal. We cannot move forward as long as the Government fails to understand what the word Transgendered means. All the legislation is doing at the moment is negating your right to the use of the word, if you so desire to use it.
So any suggestions that this move to improve our rights through legislation could be anything other than just an improvement of our rights, is nothing but a completely negative and time wasting exercise that is just muddying up the flow of useful and relevant information in these forums. If you want the right to say you are Transgendered in this state, then we need to discuss just that. Including acceptance of your family and acceptance of the public within the topic of changing the Anti Discrimination Laws is just a complete waste of time and should be discussed in another forum if that is your desire.
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Please excuse my naivety, but I would have thought this would have been something the Federal Government would have had the responsibility to standardise all of the definitions and mostimportantly to standardise the legislation rather than leave it to the jurisdiction of the states.
The differences in wording and intent serves only to create confusion and as has been rightly said it serves to make all people who may be affected by this legislation feel less than secure if they are in a state which leaves its legislation open to being misconstrued.
Perhaps this is an area that could be highlighted as one of the real concerns that all groups share and could be another discussion point at Transformal.
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Quote:I might add here that anyone who uses a Ladies Loo is treading on dangerous ground, it would only take one disgruntled female user of the same facility to put the cause of TG People back 50 years or so, especially in Tasmania. One women to run out of Loo screaming about a freak in a dress, and that persons life would go down the toilet literally with absolutely no claim on the title of Transgendered Person.Direct advice from the New South Wales Police legal section, via one of their NSW Police Gay and Lesbian Liaison Officers, is that a person may use the public toilets appropriate for the gender with which they identify at the time of use. Thus, if one is dressed as a woman, presents as a woman and acts appropriately then there should be no issue. I’m not sure how the law stands in other states but it’s a start.
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Quote:Quote:I might add here that anyone who uses a Ladies Loo is treading on dangerous ground, it would only take one disgruntled female user of the same facility to put the cause of TG People back 50 years or so, especially in Tasmania. One women to run out of Loo screaming about a freak in a dress, and that persons life would go down the toilet literally with absolutely no claim on the title of Transgendered Person.
Direct advice from the New South Wales Police legal section, via one of their NSW Police Gay and Lesbian Liaison Officers, is that a person may use the public toilets appropriate for the gender with which they identify at the time of use. Thus, if one is dressed as a woman, presents as a woman and acts appropriately then there should be no issue. I’m not sure how the law stands in other states but it’s a start.
i have been going to the ladies loo for three years and had no conplats and one day i went i to the men loo and a men was going out and he look at me and the look seed this is not the ladies and it mead me fill that i was not a man i was a women so i went to the right loo ( so i am saying if you act as a women and seek as a women )
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I think if you read the post properly you will see that I did specify Tasmania, as they do allow discrimination against Transgendered people in Ladies facilities. All I am saying about everyone else’s loo is be careful.
