Victoria’s Justice
Statement: Rights or Rhetoric?
[Or…‘There’s No Show Without
Punch!’]
Karen Gurney and Eithne
Mills
Deakin University Law School
Contents
Punch:
My name is Punchinello,
All dressed in red
and yellow,
I'm such a clever fellow.
Rootitootitooit!
[Suddenly he stops] What's that? Who's that? Is
that the Devil? Goodbye everybody! Bye bye! Bye bye! [Exits waving]
[Out comes Joey the clown, looking for Mr Punch]
Joey:
Mr Punch? Mr Punch? Has Mr Punch gone?
Oh dear. Well that must be the end of our show, cos
there's no show without Punch. I hope you have all enjoyed yerselves?
If you've
had fun then we've had fun too. Goodbye everyone! Goodbye!
[Exits waving]
'Punch and the
Devil', in Robert Leach, The Punch & Judy Show: History,
Tradition and Meaning (Batsford 1985).
Introduction
The
State Government of Victoria has released a 10-year plan which it
claims will make Victoria's justice system more efficient, cohesive
and
sensitive to the needs of victims, minorities and the disadvantaged.
Published in the style and colours, and no doubt at a cost,
reminiscent
of its predecessor government, the Attorney-General's Justice Statement,[1]
which took two years to complete,
lists 25 initiatives to be implemented within a decade to modernise the
justice system.[2]
When he released this statement on
27 May, Attorney-General Rob Hulls said that the blueprint set the
Brack's government's vision
for justice for the next five to 10 years
and was the product of the most comprehensive analysis ever undertaken
of the Victorian
legal system by the Department of Justice.[3]
The accompanying document, although
sometimes vague on just how issues the Government considers important
will actually be addressed,[4]
does suggest that the Government
regards the protection of human rights as an important area for reform.[5]
A very laudable initiative proposed
to achieve this is the introduction of a charter of human rights and
responsibilities, known
in some countries as a Bill of Rights. The
reform is supported by an all-of-Government commitment to tackle
discrimination in the
community by improving compliance with the Equal
Opportunity Act 1995 and by vetting all legislation to ensure
unintended discrimination does not happen. The authors of this paper
argue that action,
not rhetoric, is needed to advance human rights and
the Government should be the first to demonstrate commitment to a human
rights
agenda by actually following its own precepts and considering
why discrimination is still inherent in legislation it has enacted
since the statement was made. Joey would tell them, if he could...
"There is no show without Punch!" Human
rights and the requirement of non-discrimination
Together with equality before the law
and equal protection of the law without any discrimination,
non-discrimination provides the
foundation for the enjoyment of human
rights. Indeed, equality and non-discrimination, as Shestack wisely
observed, 'are central
to the human rights movement.'[6]
Australian
case law is rather vague, no doubt intentionally so, on what actually
constitutes "discrimination" and a first answer
therefore lies in the
"ordinary common meaning" of the word. This was certainly the view of
the eminent retired Justice of the US
Supreme Court, Mr Charles A
Whittaker. Delivering a Senate speech on the Bill for the US Civil
Rights Act 1964, his Honour said:
The
meaning of the term "discrimination", in its legal sense, is not
different from its dictionary meaning. Webster's New International
Dictionary defines discrimination as: 'A distinction, as in treatment;
esp., an unfair or injurious distinction.'...[T]he word
"discrimination"
has been used in many a court case. What it really
means... is a distinction in treatment...given to different individuals
because
of their [difference]...It means "different treatment." That is
all it means.[7]
The Macquarie Dictionary[8]
gives an almost identical etymology,
defining "discrimination" as 'the making of a difference in particular
cases, as in favour of
or against a person or thing', and provides the
example of 'discrimination against a minority'. Relevant statutes give
further guidance
in this context. The Equal Opportunity Act 1995 (Vic)
defines (direct) discrimination, inter alia, as the treatment of
someone less favourably than another person would be treated
in the
same or similar circumstances.[9]
Intention is irrelevant to the
question of whether discrimination has occurred.[10]
The Commonwealth Acts administered
by the Human Rights & Equal Opportunity Commission are couched
in very similar terms. Specifically
formed by the United Nations to
deal with questions of discrimination, the Sub-commission on the
Prevention of Discrimination and
Protection of Human Rights, early in
its first session, determined not to attempt agreement upon a legal
definition of the term,
"discrimination", merely indicating the
considerations which should be taken into account in framing the
proposed Universal Declaration
of Human Rights.[11]
It described "Prevention of
discrimination" as the prevention of any action which denies to
individuals or groups of people the equality
of treatment which they
may wish. Differential treatment of such groups or of individuals was
justified, it said, when it was exercised
in the interests of their
contentment and the welfare of the community as a whole. A very clear
distinction was made between differentiation
which may be justified in
the interest of true equality, and discrimination which is based upon
'unwanted,' 'unreasonable,' or 'invidious'
distinctions and which is
never justified.[12]
In order to better understand the
meaning of discrimination it is perhaps also important to distinguish
between discrimination, prejudice,
and stereotyping. Basically,
discrimination means that someone is being treated unfairly because of
a certain characteristic (attribute).
Discrimination is based on
prejudice: an attitude or belief which is formed or held without really
considering the facts. Prejudice
means judging in advance.
Stereotyping, on the other hand, involves making global assumptions
without knowing all the facts. A stereotype
assumes that all members of
a group share some general quality. (i.e., they are smart/stupid, they
are monogamous/promiscuous, etc.)
Stereotyping of people or groups can
be derogatory and can lead to prejudice and discrimination.
Discriminatory acts are known to
be more destructive of those
individuals who are already disadvantaged in society. For example, in a
recent dissertation on the meaning
and consequences of discrimination,
US researchers, Michael T. Schmitt and Nyla R. Branscombe explained:
The subjective meaning and consequences of perceived discrimination
depends on the position of one's group in the social structure.
For
members of disadvantaged groups, attributions to prejudice are likely
to be internal, stable, uncontrollable, and convey widespread
exclusion
and devaluation of one's group. For members of privileged groups, the
meaning of attributions to prejudice is more localized.
Because of such
meaning differences, attributions to prejudice are considerably more
harmful for the psychological well-being of
members of disadvantaged
groups than they are for members of privileged groups.[13]
In Victorian communities, minority groups based on sexuality or sexual
identity appear to suffer overt discrimination at least as
severely as
those who are held different by reason of their race or religion. The
research report, 'Enough is Enough', published
by the Victorian Gay and
Lesbian Rights Lobby,[14]
found high levels of
discrimination and abuse on the basis of "sexuality", but even higher
levels on the basis of "gender identity".[15]
People discriminated against
suffer low self-esteem and depressive illnesses, and are unable to
properly contribute to the global
benefit of the wider community in
which they live. The Bracks' Government in Victoria has progressively
moved to provide greater
protection in respect of these attributes,[16]
but it is still a long way from
achieving world's best practice in the area.[17]
Somewhat alarmingly, it even seems
to have taken a backward step by enshrining further discrimination
against people with transsexualism
- those who are most marginalised -
in various legislation enacted by it since the release of its
much-heralded Justice Statement.
Some
are now asking, 'How can this be?' Transsexualism
and the need for documented legal status following affirmation of
sexual identity
Transsexualism is now
regarded by the world's leading experts in the field 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.[18]
People with the condition of
transsexualism are therefore born with both male and female
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.[19]
Transsexualism is about being a
particular sex, not doing it. It is also about recognising gender
norms, not challenging them.[20]
In Australia, the courts have
generally been at the forefront of recognising the right of a person
diagnosed with, and subsequently
treated for, this unusual medical
condition to be accorded legal status as a member of their affirmed
sex. State Criminal Courts
in New South Wales[21]
and Victoria[22]
were the first to consider the
question and both concluded that, post-operatively (but not
pre-operatively), such a person should
be regarded as a member of the
sex they identified with. The question was first dealt with by a court
in the Commonwealth's jurisdiction
when the Full Court of the Federal
Court was asked to determine that an applicant for a social security
benefit, who was a woman
living with transsexualism, should be entitled
to the (lesser) female benefit.[23]
Although extremely sympathetic to
the woman's need, the Court found that, since she had not undergone sex
affirmation surgery, she
remained a member of the male sex under the
common law.[24]
The Full Court continued however,
by confirming that, post-operatively, such a person would be a member
of their affirmed sex for
the purpose:
Whatever may once have been the case, the English language does not now
condemn post-operative male-to-female transsexuals to being
described
as being of the sex they profoundly believe they do not belong to and
the external genitalia of which, as a result of irreversible
surgery,
they no longer have. Where through medical intervention a person born
with the external genital features of a male has lost
those features
and has assumed, speaking generally, the external genital features of a
woman and has the psychological sex of a woman,
so that the genital
features and the psychological sex are in harmony, that person may be
said, according to ordinary English usage
today, to have undergone a
sex change.[25]
The question was again considered in the Commonwealth's jurisdiction
when "Kevin" and "Jennifer" sought a declaration of validity
of their
marriage from the Family Court.[26]
In a judgment that has been
described elsewhere as 'one of the most important cases on
transsexualism ever to come on the scene of
[the international]
jurisprudence',[27]
his Honour, Justice Chisholm said obiter:
In my view the evidence
demonstrates (at least on the balance of probabilities) that the
characteristics of transsexuals are as much
"biological" as those of
people now thought of as intersex. The difference is essentially that
we can readily observe or identify
the genitals, chromosomes and
gonads, but at present we are unable to detect or precisely identify
the equally "biological" characteristics
of the brain that are present
in transsexuals.[28]
On
this basis, Chisholm J held that the factors to be considered in
determining a person's sex include, but are not limited to, the
sex of
the gonads, genitals and chromosomes; any hormonal and surgical
rehabilitative treatment the person has undergone; the person's
perception of their sexual identity (a manifestation of their brain
sex); and the perception of others towards them. [29]
Following the line of precedents
already established in Australia and discussed above, he further held
that, post-operatively, a
person treated for transsexualism is a member
of their reassigned sex.[30]
The process of actually changing
the external biological appearance through hormone medication and
surgery is a long and complex
one, especially for those born with a
female phenotype and male sexual identity. A person in the process of
such change is particularly
vulnerable to discrimination and other acts
grounded in ignorance and prejudice, the more so because their legal
status and physical
reality are contradicted by official documentation.
All States, with the exception of Western Australia,[31]
now provide some form of
legislated protection from discrimination for citizens on the basis of
their "gender identity", and this
protection extends not only to those
undergoing treatment for transsexualism, but also to others with
intersex conditions and those
who identify as "transgender".[32]
The protection also applies after
sex affirmation has been completed and a change in all legal
documentation has occurred. Legal
documentation, and especially a Birth
Certificate in the contemporaneous sex, is a vital part of the process
to restore the dignity,
and assure the privacy and safety of people who
have a transsexual background. The European Court of Human Rights
recently considered
the difficulties of a citizen of the United
Kingdom, a woman with transsexualism, who had been denied legal status
and documentation
in her affirmed sex.[33]
It found this denial of rights
occurred because of the failure of successive governments to legislate
in this area and despite various
prior warnings from the courts that
this was contrary to the intent of the European Convention on Human
Rights which is, itself,
based on the Universal Declaration of Human
Rights of the United Nations. The ECHR held that, by denying the
applicant legal status
as a woman and the appropriate supporting
documentation, it had seriously impinged on her rights to privacy,
dignity and family,
saying: The
stress and alienation arising from a discordance between the position
in society assumed by a post-operative transsexual and
the status
imposed by law which refuses to recognise the change of gender cannot,
in the Court's view, be regarded as a minor inconvenience
. . . No
concrete or substantial hardship or detriment to the public interest
has been demonstrated as likely to flow from any change
to the status
of transsexuals and, as regards other possible consequences, the Court
considers that society may reasonably be expected
to tolerate a certain
inconvenience to enable individuals to live in dignity and worth in
accordance with the sexual identity chosen
by them at great personal
cost . . . the fair balance that is inherent in the Convention now
tilts decisively in favour of the applicant.[34]
Rachael Wallbank[35]
very succinctly distilled the
legal identity issues facing people with transsexualism post
sex-affirmation into the proposition that:
Legally, we need to be able to identify and distinguish between an
individual's predominant biological sex, legal sex and common
law sex
(the sex declared/declarable by a court for certain purposes) in order
to properly consider the legal predicament of people
living with
transsexualism and other intersex conditions... [T]he question of
whether one is able to live a reasonable life as a
male or a female is
ultimately determined by one's brain-sex differentiation rather than
the appearance of one's genitalia and/or
other sexually differentiated
body parts.[36]
Thus a person who is post-operative with transsexualism should be able
to enjoy, in all circumstances, the rights and benefits of
a legal
identity that fits with their contemporaneous common law and
predominant biological sexes. That legal identity is provided
by
amendments to Births, Deaths & Marriages Registration Acts in
all States and Territories allowing an alteration to the record
of sex
on the Register in such cases, and thereby puts an end to the
discrimination inherent in the law. At least it purports to...
Unfortunately, the Devil still pops up to confound people with
transsexualism in the form of ill-considered legislation and
administrative
decisions, as is clearly illustrated by the discussion
below. A
subtle discrimination pre justice statement
Until 1 January 2005, when the Births, Deaths & Marriages
Registration (Amendment) Act 2004 came into operation by virtue of
section 2(2) of the Act,[37]
Victoria alone, of all the States
and Territories, had no specific statutory process in place to provide
for the alteration of details
of the record of sex on the Register in
cases where the individual had been treated for transsexualism. That
fact of itself left
people with transsexualism born in Victoria at a
distinct disadvantage vis-à-vis their fellows born in other
Australian jurisdictions
but, adopting the idiom of our dear friend,
Punch, 'that was only the 'alf of it...' A process to correct the
Register is available
to the Registrar, however, under section 43 of
the principal Act. This provides:
(1) The Registrar may correct the Register- (a) to reflect
a finding made on inquiry under Division 2; or
(b) to bring
an entry about a particular registrable event into conformity with the
most reliable information available to the Registrar
of the registrable
event.
Similar
provisions exist in all the other States and Territories and their
purpose is to provide for a correction of the record for
a mistake of
sexual identification made by the obstetrician or midwife at the time
of the birth or shortly thereafter. It allows
a sexual identity to be
assigned to an infant where doubt exists due to an apparent physical
ambiguity in the reproductive organs,
and for the record of that sexual
identity to be altered in the unfortunate event that further medical
examination determines it
necessary. The
Victorian Registrar, sympathetic to the plight of some intersexed
persons who had been surgically assigned in infancy to a sex
in which
they later felt discordant, absent the specific provisions available
elsewhere in Australia, in recent times used the s43
discretionary
power to change the record of sex of those individuals. This was done
without any pre-requisite that the legal sex
be affirmed by way of a
surgical correction of the phenotype. While the authors accept this was
a humane and sensible answer to the
individuals' predicament, we do
express our view that it was outside the parameters of the discretion
since it was not the record
that was incorrect - it accurately
reflected their assigned sex - rather it was the choice of surgical
procedure performed in their
infancy without their informed consent
that was the source of the mistake. A request for the discretion to be
similarly exercised
in the case of people with another form of intersex
condition, transsexualism, who had taken all steps to correct their
sexual identity
by hormonal and surgical means was, however, rejected
as inappropriate.[38]
The injustice of this
discrimination should be obvious to all - a government cannot fairly
claim that a corresponding phenotype is
mandatory for the legal
assignment of sex of one citizen and yet not require the same standard
of another. But it happened just the
same. Discrimination
enshrined in law post justice statement
The
Births, Deaths & Marriages Registration
(Amendment) Act 2004
With
the coming into operation of the Births, Deaths & Marriages
Registration (Amendment) Act 2004 (Vic)[39]
all Australian States and
Territories except Norfolk Island now have legislation in place to
provide for the correction of an individual's
sex record on the
Register of Births, Deaths & Marriages following their sex
affirmation treatment. Victoria was the very last
to so legislate, more
than 16 years after South Australia's Premier Don Dunstan first set the
example by introducing the Sex Reassignment
Act 1988 (SA).[40]
Even then, in what some might
describe as a contumelious[41]
disregard of the common law rights
already won by people of transsexual background, the Victorian
Government both failed to comprehend
the significant advances in
medical understanding that had occurred in the interim, and to properly
inform itself of changes to the
common law based on those advances that
came about as a consequence of the seminal decisions in Re Kevin, at
first instance and on
appeal.[42]
In consequence, while the Births,
Deaths & Marriages Registration (Amendment) Act 2004 (Vic)[43]
finally granted people with
transsexualism born in Victoria a general right to obtain an alteration
of the record of their sex on
the Register, that right was made
conditional upon the applicant being an adult, unmarried and having
undergone sex affirmation surgery.[44]
The Act also excluded people with
other intersex conditions from its purview on the misapprehension that
the factual and legal circumstances
of these others are somehow
different.[45]
No
provision for the young
The Victorian
Government gave insufficient consideration to the difficult
circumstances of young adolescents with transsexualism who
have been
left in a legal vacuum by their omission from the birth certificate
provisions. That they would be denied the peace of
mind, safety and
privacy of an appropriately corrected Birth Certificate by the
Victorian Act was an issue of importance raised in
the matter of Re Alex[46]
where the former Chief Justice of
the Family Court was highly critical of the failure of most states and
territories to grasp the
welfare ramifications for children and deal
with them. His Honour said:
...[A] young person such as Alex, on the [medical] evidence, would not
be eligible for surgical intervention until at least the age
of 18
years. Thus, for the many purposes for which a birth certificate is
required, a person such as Alex in those jurisdictions
is required to
produce a birth certificate that describes him as a female in
circumstances where in all other respects he is living
his life as a
male...[47]
Reflecting
upon the particular circumstances of this case leaves me anxious about
the detrimental consequences that a young person
such as Alex would
suffer from having to present a birth certificate that is antithetical
to his self-image...[48]
While His Honour's criticisms were directed particularly to Victoria,
all Australian jurisdictions apart from South Australia[49]
and Queensland[50]
currently exclude anyone under 18
years of age from correcting their details, and even Queensland de
facto precludes the change for
most applicants by making surgery a
necessary precedent.[51]
Of all them, South Australia, the
very first to legislate in the area, is the only jurisdiction where
surgery is not an absolute
pre-requisite for re-assignment.[52]
The special needs of the young are
therefore almost totally neglected since medical experts delay surgery
for adolescent transsexualism
whereas, quite perversely, they readily
intervene to rehabilitate the phenotype with surgery when other
intersex conditions are manifest.[53]
The inclusion of Gender Identity
Disorder (GID) in the DSM IV[54]
as a psychopathology descriptive
of transsexualism is now much disputed.[55]
There is an abundance of
literature pointing out that the "distress" supposedly associated with
the condition is far more attributable
to the reactions of others,
especially family and friends, to those who experience it. The
literature, as did the earlier edition
of the DSM, also clearly
distinguishes between those with transsexualism who, post-operatively,
are generally well-adjusted and have
high levels of self-esteem, and
those who are "transgendered" (GIDAANTS),[56]
who are not well-adjusted, and
have low levels of self-esteem and numerous attendant psychopathologies.[57]
Nevertheless, the diagnosis
persists and still holds particular favour with a number of overseas
practitioners involved in the treatment
of children who advocate
aversion therapies rather than sex affirmation.[58]
The contrary view has recently
gained greater favour, however, as researchers like Professor Peggy
Cohen-Kettenis accumulate ever
more convincing evidence that early
hormonal, and even surgical treatment, provide improved outcomes for
children, especially adolescents.[59]
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.[60]
This Act binds the Crown in right
of the Commonwealth, the States and Territories,[61]
and applies, inter alia, to make
discrimination on the basis of age unlawful in the supply of goods and
services.[62]
A person acting in direct
compliance with a law of a State or Territory, however, is exempted
from the provisions by section 39(4)
of the Act. This would appear to
render the Registrar immune from an action based in age discrimination
under the Commonwealth provisions.
The young have been failed, again. No
provision where prior marriage is intact
The
hopes of people who, along with their marriage, had survived their
transition in the face of a largely ignorant and often hostile
response
to it, that the Victorian Government would adopt the position regarding
a prior valid marriage established in Re Kevin were
dashed when the
decision was made to require an applicant seeking an altered record of
sex to be "unmarried".[63]
The applicant who is presently
married now has to decide whether their marriage or their replacement
Birth Certificate is more important
to them and their continued
wellbeing - an impossibly cruel choice after such a long wait. Rachael
Wallbank, commenting on this offensive
inequity,[64]
said: People
with transsexualism and other intersexual people who have undergone
irreversible sex affirmation treatment have only been permitted
to
correct or update the particulars as to their legal identity if they
comply with such inhumane and strange conditions as the requirement
they divorce their life-long spouse... Here married people with
transsexualism fall victim to a misplaced legally expressed homophobia
that fails to appreciate the workings of the marriage law of Australia,
as clarified in Re Kevin, that the validity of a marriage,
and hence
the sex of the parties to a marriage, are to be determined at the date
of the marriage. The 'sex of the parties' means
their common law sex
and does not require or invite some scientific investigation or
argument as to which (or which set) of the sexually
differentiated
aspects of a person determine their possibly multi-faceted biological
sex.[65]
The authors are in strong agreement with Ms Wallbank and echo her
conclusion that: 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.[66]
It was not that the Victorian Attorney-General was uninformed on the
human rights issues at stake. The Equal Opportunity Commission
Victoria, responding to the Attorney-General's Discussion Paper
preceding the proposed legislation,[67]
explained that the introduction of
provisions preventing people of transsexual background who are married
from being able to have
their affirmed sex recorded on their birth
certificates would be discriminatory, would limit the effectiveness of
the proposed reforms
and be contrary to the common law enunciated in Re
Kevin. The Commission also submitted, inter alia, that:
Discrimination against a person on the basis of their marital status is
prohibited under both the Victorian Equal Opportunity Act and the Sex
Discrimination Act 1984 (Cth)... The 2003 Family
Court case of the Attorney-General for the Commonwealth and "Kevin and
Jennifer" and Human Rights and Equal Opportunity
Commission
(Intervener) has clarified that for the purpose of the validity of a
marriage under Australian law, the issue of whether
a person is a man
or a woman is to be determined as of the date of the marriage.
Therefore, the sex of the parties at any time after
the date of the
marriage is not relevant to the validity of the marriage.
The implication of the decision in Re: Kevin and Jennifer is that where
one party to a marriage subsequently undergoes a process
of sex
affirmation, with the result that that party's affirmed sex is the same
as their spouse's sex, the validity of the marriage
will not be
affected.[68]
Undeterred by this, on 11 May 2004, Attorney-General Rob Hulls made it
very clear in his Second Reading Speech on the Bill for the
Amendment
that the Government justified this patently discriminatory provision in
the legislation on the basis of (i) consistency;[69]
and (ii) fear of being seen to
facilitate a same-sex marriage. During the debate, Mr Hulls said:
...this bill requires that a person be unmarried. This is consistent
with the model in other states and territories... The requirement
for
an applicant to be unmarried avoids the question of whether the person
is in a same-sex marriage. An example would be if a person
was born
anatomically female, married a man and then later transitioned to being
male - if that person were to remain married, the
result would be prima
facie a same-sex marriage. Given that marriage is a matter for the
commonwealth government - which, I might
say, has made its views on
same-sex marriages very clear...[70]
In relation to the likely illegality of the
provision, vis-à-vis section 6 of the Sex Discrimination Act
1984 (Cth) ("the SDA") mooted by the Equal Opportunity Commission, the
Attorney-General further stated:
...[W]e have advice that [inconsistency with the SDA] will not have
ramifications in relation to that legislation. If this legislation
in
Victoria did allow a person to be married before transitioning and
changing their birth certificate it may be open to a legal
challenge on
the basis of inconsistency with the commonwealth Marriage Act. While
here in Victoria we are committed as a government
to ensuring that
people in domestic partnerships are treated in the same way as married
people, the inability of a married person
to apply for a changed birth
certificate under this legislation is based on commonwealth law, over
which we in Victoria have no control.[71]
With respect to the Attorney-General and those advising him, the
authors hold the view that enshrining such deliberate discrimination
in
legislation was nothing more nor less than a deliberate abrogation of
the human rights of some members of a class of people for
political,
rather than any legal or medical science considerations. The
Government, in its own words, 'avoided the question' and
decided to
favour consistency with similar legislation existing in the other
States and Territories, rather than consistency with
the common law
position annunciated in Re Kevin where the relevant ratio was distilled
in the statement that 'the sex of a person
for the purposes of marriage
is their sex at the time of the marriage'.[72]
As was pointed out in the authors'
individual submissions to the Victorian Attorney-General and by others,
in Re Kevin Chisholm J
specifically considered the situation where a
person who is already married completes sex affirmation treatment:
What would be the position if the marriage law were to recognise the
re-assignment? The marriage would I think still be valid: its
validity
would be determined as at the date of the marriage, and I would not
think it would become invalid by reason of the reassignment...[73]
The fact is
that the assignment of transsexuals to one category or the other will
inevitably mean that some of the person's characteristics
will be those
of the "other" sex. 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.[74]
The Victorian Government, having finally implemented reforms that were
decades overdue, recognising the contemporaneous circumstances
of a
person post-operative for transsexualism rather than adhering to a
historical mistake, decided to exclude from their ambit those
few who
remain in a valid prior marriage. Apparently blinded to reason by the
fear of being embroiled in the same-sex marriage debate,
the government
created a legal oxymoron 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 other circumstances would be a female for the
purposes of all the laws of Victoria,[75]
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.[76]
Justice, compassion and sense flew
out the window when this became the law in Victoria. It seems not
unreasonable to propose that
denying both the existence of
contemporaneous facts that determine the sex of a person and the
person's consequent right to be recognised
as a member of that sex
under the laws of Victoria for all purposes, solely on the basis of the
person's marital status, is the ultimate
discrimination that anyone
living with transsexualism has been subjected to in the State of
Victoria since the Full Court of the
Supreme Court in R v Cogley[77]
first heralded our steady
departure from the narrow essentialism of Corbett.[78]
It places those married
individuals, and their spouses and children, in the invidious position
of having to choose between their
rights to marriage and family, and
the right of the person with transsexualism to finally achieve legal
status as the sex they know
themselves to be. It is the authors' joint
view that this is not only morally wrong; the offending provision is
clearly ultra vires
the Sex Discrimination Act 1984 (Cth).[79]
The
Sex Discrimination Act 1984, by s6, provides that:
(1) For the purposes of this Act, a person (in this subsection referred
to as the discriminator) discriminates against another person
(in this
subsection referred to as the aggrieved person) on the ground of the
marital status of the aggrieved person if, by reason
of: (a)
the marital status of the aggrieved person; or
(b) a
characteristic that appertains generally to persons of the marital
status of the aggrieved person; or (c) a characteristic that
is
generally imputed to persons of the marital status of the aggrieved
person; the discriminator treats the aggrieved person less
favourably
than, in circumstances that are the same or are not materially
different, the discriminator treats or would treat a person
of a
different marital status.
(2) For the purposes of this Act,
a person (the discriminator) discriminates against another person (the
aggrieved person) on the
ground of the marital status of the aggrieved
person if the discriminator imposes, or proposes to impose, a
condition, requirement
or practice that has, or is likely to have, the
effect of disadvantaging persons of the same marital status as the
aggrieved person.
The section
encompasses discrimination occurring in the supply of goods and
services by virtue of section 22 of the Act. The provision
of birth
registrations and certificates, being a service of government, fall
within its ambit.[80]
The Victorian Births, Deaths
& Marriages Registration (Amendment) Act 2004 is therefore
ultra vires the Sex Discrimination Act in so far as it treats a married
applicant less favourably than it treats one who is unmarried and
because it imposes a condition
disadvantaging persons who are married. [81]
Inconsistencies between State and
Commonwealth laws are dealt with under section 109 of the Constitution.
The section provides that, where a law of a State or Territory is
inconsistent with a valid law of the Commonwealth, the law of
the State
is invalid to the extent of the inconsistency. The Sex Discrimination
Act was enacted by the Commonwealth under the external affairs power
granted it by s51(xxix) of the Constitution and is a valid law of the
Commonwealth.[82]
The object of the Act is to give
effect to certain provisions of the Convention on the Elimination of
All Forms of Discrimination
Against Women[83]
and to eliminate, so far as is
possible, discrimination against persons on the ground of...marital status.[84]
The provisions of s30A of the
Births, Deaths and Marriages Registration Act are therefore not only
inconsistent with the Sex Discrimination Act, but are also invalid in
so far as they purport to deny a corrected Birth Certificate to an
applicant who is married. Once one understands
the full import of the
ratio in Re Kevin, that the sex of a person for the purposes of
marriage is their sex at the time of the marriage,
the
Attorney-General's concerns of inconsistencies between the Victorian
Act and the Marriage Act can be dismissed absolutely on
the basis that
the applicant's sex was correctly identified at the time of the
marriage. Issuing an altered birth certificate to
recognise a persons'
contemporaneous circumstances post-sex affirmation, where the person
remains in a prior valid marriage, cannot
possibly affect the validity
of the marriage since a valid marriage in Australia can only be
dissolved by divorce or the death of
one of the parties.[85]
It
is also very clear that the States have no jurisdiction to legislate to
effect a valid marriage or render it void. As Counsel
for the Bills and
Digests Group of the Australian Parliament wrote in an advice prepared
for the consideration of Members prior to
the passage of the Marriage
Amendment Act 2004: The
Commonwealth's power with respect to marriage comes from s. 51(xxi) of
the Constitution. Section 51(xxi) states:
The
Parliament shall ... have power to make laws for the peace, order, and
good government of the Commonwealth with respect to...
Marriage.
The
effect of the Marriage Act 1961 (Cth) and section 109 of the
Constitution is that the Commonwealth has exclusive jurisdiction over
the formation of marriages in Australia (i.e. there is no room for
States
to legislate).[86]
There is no reason to doubt that the Commonwealth's exclusive
jurisdiction is equally conclusive in the context of divorce and
matrimonial
causes by virtue of the similar operation of s51(xxii) of
the Constitution, the Family Law Act 1975 and s109 of the Constitution.
Certainly, the Scrutiny of Acts and Regulations Committee of the
Victorian Parliament had no doubt when, in the context of redundant
and
unclear legislation, it recently reported on the assumption of these
particular powers by the Commonwealth:
...by the 1950s there was a growing demand for a uniform, national
approach to marriage and divorce law. These demands culminated
in the
enactment of a uniform divorce law, the Matrimonial Causes Act 1959,
and two years later, a uniform marriage law, the Marriage Act 1961.
These new Commonwealth Acts superceded and replaced the state laws in
the same areas.... Over the next years the Commonwealth increasingly
legislated in the family law area, this intervention reaching its high
point with the introduction of the Family Law Act 1975. This massive
step forward towards a uniform national family law effectively ended
any large-scale state involvement in the area....
It is in this context
- one of Commonwealth supremacy in the family law arena - that we now
turn to the individual Acts under consideration...[87]
Yet the Attorney-General for Victoria, just a few months earlier, after
first optimistically repudiating any inconsistency between
his
legislative proposal and the Sex Discrimination Act, told the Victorian
Parliament during his Second Reading speech on the 2004 Bill:
If this legislation in Victoria did allow a person to be married before
transitioning and changing their birth certificate it may
be open to a
legal challenge on the basis of inconsistency with the commonwealth
Marriage Act.... the inability of a married person to apply for a
changed birth certificate under this legislation is based on
commonwealth law,
over which we in Victoria have no control.[88]
One has to wonder what might have been behind the
decision to opt for political pragmatism in the construction of this
supposedly
"beneficial" legislation: was it same-sex politics; was it
simply poor advice; or was it the consequence of deep prejudices
inherent
in those who made it? Whatever; like the marital woes of our
unhappy couple, Punch and Judy, these particular marriage difficulties
will undoubtedly continue until a better understanding of the issues is
reached and despite those now rather hollow promises contained
in the
Attorney-General's Justice Statement. The
forgotten few - the old, the sick...and men?
In
the same way the Births, Deaths & Marriages Registration
(Amendment) Act 2004 excludes those who are too young or are not
"unmarried"
from obtaining an alteration of their record of sex on the
Register, so it also excludes those who are unable, by reason of
contra-indicating
medical conditions or their age are unable to undergo
the necessary surgical procedures even though they fit the medical
diagnosis
for transsexualism. Of greatest concern, however, is the
failure of the legislation to take proper account of the particular
difficulties
associated with surgery for men with transsexualism. The
legislation, unlike the original South Australian provisions, takes no
account
of changes to the reproductive organs initiated by medical
treatment alone, and specifically requires 'a surgical procedure
involving
the alteration of a person's reproductive organs carried out
for the purpose of assisting the person to be considered to be a member
of the opposite sex'.[89]
This severely limits access to
Birth Certificates reflecting their contemporaneous sex by men with
transsexualism because the relatively
primitive multiple phalloplasty
procedures and high complication rates render the requisite alteration
of reproductive organs a slow,
painful, dangerous and costly process.
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.[90]
The
Victorian Government was well aware of the difficulties its legislative
proposals would create for men, but pursued them regardless.
Instead of
being prepared to stand up for the human rights of all men with
transsexualism by following the South Australian "medical
or surgical"
model, or taking responsibility for the outcomes of their narrow
legislative reform, the government opted to put the
onus back on
medical practitioners as is evident from the contribution by the
Parliamentary Secretary for Justice, Ms Jenny Mikakos
MLC, in the
Second Reading debate where she said:
What I have learnt during the course of being involved in the
development of this bill is that sex affirmation surgery is a complex
matter, and it can encompass a range of surgical procedures. It will be
the task of medical experts to determine when a person has
had an
adequate amount of surgery for the purposes of the bill. While the
provision sets a legal standard, I am confident that the
medical
profession will use the scope available to assess individual patients.[91]
In drafting these provisions, the Government simply created another
legal oxymoron. A man with transsexualism born and living in
Victoria
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. So much
for the oft-repeated justification for the discriminatory
provisions
inherent in this Act that:
National consistency is important to ensure mutual recognition of an
amended Victorian birth certificate and so that the same rights
and
obligations apply to people living in the various Australian
jurisdictions and those born interstate.[92]
The
Corrections and Major Crimes (Investigative Powers) Acts (Amendment)
Act 2004: Another cause of discontent
The
continuing failure of the Bracks' Government to act to protect
prisoners experiencing transsexualism from predation by other inmates
and to respect their fundamental dignity within the prison system was
recently highlighted by the introduction into Parliament of
the
Corrections and Major Crimes (Investigative Powers) Acts (Amendment)
Act 2004 that, inter alia, gives unfettered power to the Secretary of
the Department of Justice to deny any prisoner the right to change
their
name.[93]
The Bill received its first
reading on 10 November 2004, and was given its second reading just one
day later. The Office of Corrections
already treats women who are
pre-operative with transsexualism differently than any other service
provider is required to by law.
[94]
Some of these have been on
cross-hormones for 10 years or more and have had facial feminisation
surgery and breast augmentation,
but have not undergone sex affirmation
surgery or sorted their legal documentation because of their degrading
circumstances involving
prostitution and an associated drug habit.
Corrections, however, classifies them as men and places them in the
male prison system;
their experience of transsexualism is all but
erased by an uninformed regime.[95]
Their fate is determined according
to an unwritten policy that, "if it's got tackle, it's a bloke".[96]
If the same thing happened in a
department store or a lawyer's office or even a police station, it
would be regarded as unlawful
discrimination and the Government would
condemn it.[97]
In the world of Corrections,
however, it's par for the course and no such cry is raised against it.[98]
In a further perverse application
of logic, because these prisoners are deemed "vulnerable" they are
placed in the "Protection" unit
of the respective prison - along with
convicted sex offenders and often in the same cell with up to three
such men.[99]
It is hard to escape the
conclusion that the authorities take the view that the offender has
been a street worker anyway, so it's
okay for them to face the
inevitable prospect they will be raped in these circumstances.[100]
That this is a clear abrogation
of the duty of heightened care reposed in a corrections authority has
apparently not yet crystallised
in the mind of the responsible
Minister. [101]
Prison,
at least, gives these prisoners some time out. They can sort through
their issues and commence those steps that might build
their
self-esteem and have some chance of making it on the outside, including
the correction of their status details on legal documents
- that is,
they could. While the extraordinary new measure is ostensibly directed
to assist the Office of Corrections manage one
particular prisoner,
Paul Denyer, who is likely to be declared a vexatious litigant,[102]
it has potentially serious
ramifications for others who have a very genuine reason for pursuing
such an application. Denyer is a
convicted multiple murderer of women.
His crimes have been callous and sadistic in the extreme.[103]
He has variously sought to be
recognised as a practising Muslim and Christian; he has committed
serious crimes even while incarcerated.
No right-thinking person could
believe his present claims of a female sexual identity and all decent
people would support the Government
in its rejection of his sick claims
in this regard. From the now very considerable information publicly
available about Denyer, it
is patently obvious that he is not genuinely
experiencing transsexualism, but is instead a sexual sadist gaining
gratification from
fetishistic cross-dressing fantasies in association
with multiple other psychopathologies. The
authors' concerns are not with the Government's desired outcome, the
denial of Denyer's application, but with the process and
its no doubt
unintended effects. The ultimate determination of his, or any other
prisoner's, psychological or physical state should
be a question for
medical experts and not one for administrative bureaucrats.
The legislation as it is now framed, by section
47I(2), requires the Secretary to consider various issues before
determining to grant
an application by a prisoner to change their name,
including whether such a change would: constitute a threat to prison
security;
jeopardise the safe custody or welfare of any prisoner; be
used for an unlawful activity or purpose; or be regarded as offensive
to a victim of crime or an appreciable sector of the community. But
there are no safeguards whatsoever in the event the Secretary
determines to refuse such an application. There are no proscribed
matters to be considered in such an event and no internal review
or
appeals processes, either. This
is bad policy and bad law. It leaves the most vulnerable prisoners in
the system - those who are genuinely experiencing transsexualism
and
who are often also devoid of the medical care and protection to which
they are entitled - without an avenue of recourse. The
decision as to
whether or not a particular convicted prisoner is experiencing
transsexualism should be informed by medical experts
and their rights
to an identity should not be abrogated on the whim of a bureaucrat.
Deciding a claim of transsexualism on medical
grounds protects the
Government through its Department, and the rare prisoner who may have a
valid diagnosis of transsexualism. How
did they get it so wrong? Conclusion
The Victorian Government had
a marvellous opportunity to develop and implement world's best practice
legislation to protect the rights
of people with transsexualism to
safety, dignity, privacy and family. Those responsible for the Birth
Certificate legislation had
the advantage of the erudite judgement in
Re Kevin and the very latest medical information on the transsexual
condition to inform
them and guide them in the process. They opted
instead for a conservative, indeed repressive construction that found
more comfort
in 'consistency' than the 'justice, compassion and sense'
mooted by Chisholm J, and failed their most vulnerable citizens in the
process. The name change provisions incorporated into the Corrections
Act 1986 reflect a disconcerting inability in government to deal with
interest groups and understand the issues that are their concern. The
apparent determination to press ahead with the legislation in its
present form, rather than inserting a small amendment requiring
that a
diagnosis of transsexualism first be excluded is indicative of a
government that is losing its way. Announcements of great
intentions
and glossy publications are one thing, but a real determination to
enhance human rights requires a lot more than fine
words and pretty
graphics. It is very much the case that the proof is in the substance
and not the form. Negative discrimination
of any kind is no longer
acceptable in a humane society cognisant of its international and
domestic responsibilities. Like the spectre
of the Punch and Judy Show,
it is an anachronism of our time. The Victorian Government as a whole
should take heed; that hollow ringing
sound isn't our two puppets
engaged in another round of domestic violence but it just might be the
Attorney-General's Justice Statement
sounding its death knell.
Notes
[1] Victorian Government,
'Attorney-General's Justice Statement', (2004) http://www.justice.vic.gov.au/CA2569020010922A/page/Listing-Home+Page+News-Attorney-General's+Justice+Statement:+New+directions+for+the+Victorian+Justice+System+2004-2014?OpenDocument&1=Home~&2=~&3=~&REFUNID=~
[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] Ibid.
[4] Ibid.
[5] Justice Statement, n1 above, 18:
Establish a process of discussion and consultation with the Victorian
community on how human rights
and obligations can best be promoted and
protected in Victoria. This includes the examination of options such as
a charter of human
rights and responsibilities, new approaches to
citizenship and to modernising anti-discrimination law, reducing
systematic discrimination
and strategies to promote additional change.
[6] Jerome Shestack, 'The Jurisprudence
of Human Rights', in Theodor Meron (ed), Human Rights in International
Law: Legal and Policy
Issues, (1984), 101.
[7] 110 Cong. Rec. 5863-5864 (1964),
partially quoted in Regents of University of California v. Bakke, [1978] USSC 145; 438
U.S. 265, 415, 5
[7] L.Ed.2d 750 (1978) (Stevens, J.,
concurring in the judgment in part and dissenting in part).
[8] Macquarie University, The Macquarie
Encyclopedic Dictionary (1995) ISBN 0 949757 56 X, 264.
[9] Equal Opportunity Act 1995 (Vic) Act
No.42 of 1995, s8(1).
[10] Ibid, s8(2).
[11] Warwick McKean, Equality and
Non-Discrimination Under International Law, (1983 Oxford University
Press ISBN 0198255195), 82.
[12] Ibid, 83-6.
[13] Michael Schmitt and Nyla
Branscombe, 'The Meaning and Consequences of Perceived Discrimination
in Disadvantaged and Privileged Social
Groups', In W. Stroebe &
M. Hewstone (Eds.), European Review of Social Psychology (2002), Vol
12, 167-199. Chichester , England
: Wiley.
[14] VGLRL, Enough is Enough: Report
into Discrimination and Abuse Experienced by Gay Men, Lesbians,
Bisexuals and Transgender People
in Victoria, (2000) Victorian Gay and
Lesbian Rights Lobby, Melbourne ISBN 0 646 39795 8.
[15] Ibid, 5-8, 15.
[16] The Equal Opportunity Act was
amended in 2001 to add "sexual orientation" and "gender identity" to
the list of attributes protected under the Act, and a major
revision of
statute law resulted in the removal of almost all provisions from
Victorian legislation discriminating against same-sex
couples.
[17] For example, while protections
based on race, religion and sex extend to harassment or vilification,
no such protections exist in
Victoria in regard to sexual orientation
or sexual identity. This is not the case in many other States. In New
South Wales, for example,
a successful action was launched against
members of the media over their derogatory comments concerning
homosexual men.
[18] See for example, Zhou, Hofman,
Gooren and Swaab, 'A sex difference in the human brain and its relation
to transsexuality' (1995)
378 NATURE, 68-70; Kruijver, Poole, Zhou,
Hofman, Gooren and Swaab, 'Male-to-female transsexuals have female
neuron numbers in a
limbic nucleus', (2000) 85(5) JCEM, 2034-2041; Dick
F Swaab, Book Review - Sexual Differentiation of the Brain', Akira
Matsumoto
(ed.), CRC Press, Boca Raton, Florida, 1999, (2003) 32(6)
Archives of Sexual Behaviour, 585:3; Carina Dennis, 'Brain development:
The most important sexual organ', (2004) 427 NATURE, 390-392 http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?cmd=Retrieve&db=PubMed&list_uids=7571001&dopt=Abstract&holding=f1000;
GIRES, 'Atypical Gender Development - A Review',
(2004) Gender Identity
Research & Education Society, UK, http://www.gires.org.uk/Web_Page_Assets/frontframeset.htm
[19] See Karen Gurney, 'Twisting the
Knife', [2004] DeakinLawRw 18; (2004) 9(2) Deakin Law Review 339.
[20] Ibid, 350.
[21] R v Harris and McGuiness (1988) 17
NSWLR 158, 194.
[22] R v Cogley [1989] VicRp 70; [1989] VR 799.
[23] Secretary, Department of Social
Security v SRA [1993] FCA 573; (1993) 118 ALR 467.
[24] Ibid, 15 per Black CJ.
[25] Ibid, 21.
[26] Re Kevin (validity of marriage of
transsexual) [2001] Fam CA 1074.
[27] In Re: Michael J Kantaras v Linda
Kantaras [2003] Case No. 98-5375CA. 511998DR005375xxxWS, 6th Circuit,
Florida, 673.
[28] Ibid, 272.
[29] Ibid, 329.
[30] Ibid.
[31] Western Australia's protection
from discrimination is limited to "gender history" and only applies to
a person after sex affirmation
surgery.
[32] The authors regard "transgender"
as something of a nonsense since the term's popular meaning varies
according to usage in any particular
place and it has not been properly
defined by either medicine or the law. The term was originally coined
by Charles (Virginia) Prince,
a cross-dresser who lived as a woman but
had no desire to be, or any belief he actually was, a woman. Prince was
a heterosexual,
married man who found the "transvestite" label
pejorative. He actively excluded people with transsexualism from his
cohort of cross-dressers
because he understood the considerable
difference they represented. See discussion in Dallas Denny,
'Virginia's Ordeal: S.P.I.C.E.
Organisers should be ashamed' (2000) 89
Transgender Tapestry, 21.
[33] Christine Goodwin v the United
Kingdom [2002] Application No. 28597/95.
[34] Ibid, 74, 77, 91, 93.
[35] Legal Counsel for "Kevin" and
"Jennifer".
[36] Rachael Wallbank, 'Re Kevin in
Perspective', [2004] DeakinLawRw 22; (2004) 9(2) Deakin Law Review 461, 467.
[37] It is interesting to conjecture
why a piece of much overdue remedial legislation assented to on 1 June
2004 was not separately and
expeditiously proclaimed by the Victorian
Government, but rather was allowed to finally come into operation by a
delayed process
involving only the effluxion of time.
[38] See, for example, the submission
to the Victorian Government from the Australian WOMAN Network,
'Transsexualism and the Case for
Correction of Birth Certificates in
Victoria', (2002) AWN, Australian W-O-M-A-N Network Birth Certificate
submission
[39] Births, Deaths & Marriages
(Amendment) Act 2004, Act No.29/2004.
[40] Sex Reassignment Act 1988 (SA),
Act No.49 of 1988.
[41] Victoria v Horvath [2002] VSCA
177, 60 Winneke P, Chernov and Vincent JJA: 'Contumelious' is not a
word which enjoys wide currency in modern society but, when used
in the
context in which the law uses it, is calculated to describe conduct
which is disgraceful, humiliating or contemptuous of the
rights of
others.'
[42] Re Kevin (validity of marriage of
transsexual) [2001] FamCA 1074; Attorney-General for the Commonwealth v
Kevin and Jennifer and the Human Rights and Equal Opportunity
Commission [2003] FamCA 94.
[43] Births, Deaths & Marriages
(Amendment) Act 2004, n39.
[44] Ibid, s30A(1).
[45] See the Second Reading Speech:
Births, Deaths & Marriages Registration (Amendment) Act 2004,
Hansard, Victorian Legislative Assembly,
11 May 2004, 1107 where the
Attorney-General gave a specific assurance to people with intersex
conditions, who had been incorrectly
assigned to a sex in their
infancy, that the existing use of an administrative discretion (s23A)
to correct their birth certificates
would continue. In practice, the
grant of the discretion is not conditional on sex affirmation surgery.
[46] Re Alex: Hormonal Treatment for
Gender Identity Dysphoria [2004] FamCA 297.
[47] Ibid, 234.
[48] Ibid, 236.
[49] Sex Reassignment Act 1988, n40
above, s7(3)(b).
[50] Births, Deaths & Marriages
Act 2003 (Qld), No.31, 2003.
[51] Ibid, s22.
[52] Sex Reassignment Act 1988, n40
above, s3 provides that - " reassignment procedure " means a medical or
surgical procedure (or a combination
of such procedures) to alter the
genitals and other sexual characteristics of a person, identified by
birth certificate as male or
female, so that the person will be
identified as a person of the opposite sex and includes, in relation to
a child, any such procedure
(or combination of procedures) to correct
or eliminate ambiguities in the child's sexual characteristics.
[53] The special problems of infants
born with atypical genitalia, both those who are satisfied with their
assigned sex and those who
are not, are expounded on numerous websites,
including: http://www.intersexualite.org/;
http://www.bodieslikeours.org/;
and http://www.kindredspiritlakeside.homestead.com/
[54] APA, Diagnostic and Statistical
Manual of the United States DSMIV TR, published by the American
Psychiatric Association, Washington
D.C., 1994, updated 2000.
Classification code 302.85 in adolescents or adults, or code 302.6 in
children.
[55] See especially, Herbert Bower,
'The Gender Identity Disorder Classification in the DSM-IV: A Critical
Evaluation', (2001) 35(1) Australia
& New Zealand Journal of
Psychiatry, 1-8; Ken Hausman, 'Controversy Continues to Grow Over DSM's
GID Diagnosis', (2003) 38(14)
Psychiatric News, 25; APA, 'Sexual and
Gender Identity Disorders: Questions for DSM-V', (2003) Transcript of
the session at the 2003
Annual General Meeting of the American
Psychiatric Association, http://www.tsroadmap.com/info/div-44-roundtable.html
[56] Gender Identity Disorder
Adolescents and Adults Non Transsexual: DSM III
[57] Miach P et al, 'Utility of the
MMPI-2 in assessing gender dysphoric patients', (2000) Journal of
Personality Assessment, 75, 268-280;
Mikael Landen, Transsexualism.
Epidemiology, phenomenonology, aetiology, regret after surgery and
public attitudes, (1999), Institute
of Clinical Neuroscience,
Göteborg University, Sweden ISBN 91-628-3879-6; Haraldesen
& Dahl, 'Symptom profiles of Gender
Dysphoric Patients of
Transsexual Type Compared to Patients with Personality Disorders and
Healthy Adults', (2000) 102 Acta Psych
Scand.
[58] B Meyenburg, 'Gender identity
disorder in adolescence: outcomes of psychotherapy', (1999) 34(134)
Adolescence, 1999 Summer edition,
305-13; George A Rekers, 'Gender
Identity Disorder', in Rekers, G (ed) (1995) Handbook of Child and
Adolescent Sexual Problems (Lexington/Jossey-Bass/Simon
&
Schuster; Heino Meyer-Bahlburg, 'Gender Identity Disorder in Young
Boys... A Parent- and Peer-Based Treatment Protocol', (2002)
7(3)
Clinical Child Psychology and Psychiatry.
[59] Peggy Cohen-Kettenis,
'Post-operative functioning in a group of adolescent transsexuals', http://www.pfc.org.uk/congress/abstract/abs-015.htm;
Peggy T Cohen-Kettenis & Stephanie H M Van Goozen, 'Adolescents
who are Eligible for Sex Reassignment Surgery: Parental Reports
of
Emotional and Behavioural Problems', (2002) 7(3) Clinical Child
Psychology and Psychiatry; Domenico Di Ceglie, 'Gender identity
disorder in young people' (2000) 6 Advances in Psychiatric Treatment,
458-466; Peggy Cohen-Kettenis, Stephanie van Goozen, 'Pubertal
delay as
an aid in diagnosis and treatment of a transsexual adolescent', (1998)
7(4) Eur Child Adolesc Psychiatry; Louise K Newman,
'Sex, Gender and
Culture: Issues in the Definition, Assessment and Treatment of Gender
Identity Disorder', (2002) 7(3) Clinical Child
Psychology and
Psychiatry.
[60] Age Discrimination Act 2004 (Cth),
No.68 of 2004.
[61] Ibid, s13.
[62] Ibid, s28.
[63] Births, Deaths & Marriages
(Amendment) Act 2004, n39 above, s30A(1).
[64] Rachael Wallbank, 'Re Kevin in
Perspective', [2004] DeakinLawRw 22; (2004) 9(2) Deakin Law Review 461, n36 above.
[65] Ibid, 466.
[66] Ibid.
[67] Equal Opportunity Commission
Victoria, Submission in Response to the Attorney-General's Discussion
Paper: Changes to Birth Certificates
for Transsexual People, (undated).
[68] Ibid.
[69] Mr Hulls neglected to point out
that, being the very last of the States and Territories to act to
rectify the neglect of human rights
for people living with
transsexualism, the second Brack's Government was alone in having the
advantage of the guidance flowing from
the Full Court of the Family
Court's confirmation of the decision at first instance in Re Kevin and
apparently ignored it for pragmatic,
not legal reasons.
[70] Second Reading Speech, Births,
Deaths and Marriages Registration (Amendment) Act 2004, Hansard of the
House of Assembly of the Victorian
Parliament, 11 May 2004,1107.
[71] Ibid.
[72] Re Kevin [2001] FamCA 1074, n42
above at 330.
[73] Ibid, 303.
[74] Ibid, 305.
[75] Births, Deaths & Marriages
(Amendment) Act 2004, n39 above, s30G.
[76] As mentioned in the paper, this
requirement that a person of transsexual background applying for a
corrected birth certificate be
'unmarried' is found in the legislation
of all States and Territories. It is an issue that has been on the SCAG
(Standing Committee
of Attorneys-General) agenda for many years without
resolution or action. The difference here is that Victoria, alone, had
the full
benefit of the statement of the common law represented by Re
Kevin confirmed on appeal.
[77] R c Cogley [1989] VicRp 70; [1989] VR 799, n22
above.
[78] Corbett v Corbett (otherwise
Ashley) 1983 p
[78] (Probate, Divorce and Admiralty
Division, UK). The exclusive "test" to determine the sex of a person
formulated in this UK decision
by a single judge took on an immense,
and many believe, undeserved importance in common law jurisdictions.
Ormrod J held that for
a person to be accepted as a member of a
particular sex, the sex of all three of gonads, chromosomes and
genitals must be congruent.
He also held that the psyche had no place
in such a determination. The decision has been used to deny the sexual
identity of many
people born intersexed, not just those with
transsexualism. Although Corbett was much criticised in many quarters
over the years,
it took the incisive reasoning of Chisholm J, in Re
Kevin, to finally expose the intrinsic flaw in Ormrod J's logic and to
formulate
an inclusive alternative based on current science.
[79] Sex Discrimination Act 1984 (Cth),
Act No.4 of 1984.
[80] IW v City of Perth & Ors
[1997] HCA P37/96.
[81] As are similar provisions in the
corresponding Acts of all the other States and Territories.
[82] Ansett Transport Industries
(Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237 at 4
per Barwick J.
[83] Sex Discrimination Act 1984 (Cth);
s3(a).
[84] Ibid, s3(b).
[85] Family Law Act 1975, s48(1). See
also the discussion in E. Mills, Family Law, (2001) Butterworths
Tutorial Series ISBN 0 409 31341, [4.1.3].
[86] Ian Ireland, 'The High Court and
the Meaning of Marriage' in Section 51(xxi) of the Constitution, (2002)
Research Note 17 2001-02 , Parliamentary Library, Parliament of
Australia, 12 February 2002.
[87] SARC, 'Report concerning the
Maintenance Act 1965, Marriage Act 1958 and the Perpetuities and
Accumulations Act 1968', The Commonwealth Steps In, (2004) Scrutiny of
Acts and Regulations Committee, Parliament of Victoria, No.81 Session
2003-2004,
http://www.parliament.vic.gov.au/sarc/Redundant%202004/introduction.htm
, November 2004, 17.
[88] Second Reading Speech, Births,
Deaths and Marriages Registration (Amendment) Act 2004, n70 above,
1107.
[89] Births, Deaths and Marriages
Registration (Amendment) Act 2004, n39 above, s4.
[90] While psychiatric assessments to
differentially diagnose transsexualism are conducted by the Monash
Gender Dysphoria Clinic under
the auspices of the Monash Medical
Centre, both male and female surgeries are only available in the
private system at very substantial
cost. The private hospital that has
been accommodating men for surgery has also notified the surgeon that
it no longer wishes to
do so - either another consequence of the
litigation or the insufficient funds returned by long-term surgical
inpatients.
[91] Second Reading Speech, Births,
Deaths and Marriages Registration (Amendment) Act 2004, Hansard of the
Legislative Council of the
Victorian Parliament, 25 May 2004,
1067-1068. Ms Mikakos has been very sensitive to the plight of people
with transsexualism and
her response here is perhaps more suggestive of
an expression of Cabinet solidarity rather than an individual
conviction.
[92] Ibid, 1068.
[93] Corrections and Major Crimes
(Investigative Powers) Acts (Amendment) Act 2004 (Vic).
[94] The Equal Opportunity Act 1995, n9
above, s6(c) adds "gender identity" as an attribute protected under the
Act and protection is extended to the provision of goods
and services
by s42, whether or not the goods or services are provided for payment.
[95] Richard Edney, 'To Keep Me Safe
From Harm? Transgender Prisoners and the Experience of Imprisonment',
[2004] DeakinLawRw 17; (2004) 9(2) Deakin Law Review 327.
[96] Karen Gurney, 'If it's got tackle,
it's a bloke!' Online Opinion, Tuesday 07 December 2004, http://www.onlineopinion.com.au/view.asp?article=2817
[97] Compare, for example, the (very
positive) Victorian Government response to recent Opposition cries that
a woman with transsexualism
should not have been accepted into the
Victoria Police recruiting program.
[98] The present Minister for
Corrections, the Hon Andre Haermeyer MP, never responds to written
concerns about the plight of the most
vulnerable in his prisons system
- the young, the feminine or those with transsexualism. His Department
is similarly recalcitrant,
having consistently failed to implement a
policy for the management of transsexual and intersex prisoners despite
various undertakings
given to the Equal Opportunity Commission and the
Victorian Civil and Administrative Tribunal.
[99] Steve Butcher, 'No Safety-Surety
on Gang-Rape for Transgender Prisoner', The Age, 4 August 2001, ftp://www.theage.com.au/
[100] Richard Edney, n95 above, 331.
[101] Ibid, 332; L v Commonwealth
(1976) 10 ALR 269.
[102] Denyer has made numerous EO and
FOI applications and the Government has indicated its desire to have
Denyer declared a vexatious
litigant similar to another multiple
murderer, Julian Knight. See, for example, Andrea Petrie and Chee Chee
Leung, 'State turns down
triple murderer's bid for sex change', The
Age, 9 January 2004, http://www.theage.com.au/articles/2004/01/08/1073437410826.html?from=storyrhs
[103] The serial murders that led to
Denyer's incarceration are chronicled in Paul B Kidd, 'All about Paul
Denyer', (1993) Court TV's Crime
Library, http://www.crimelibrary.com/serial_killers/predators/paul_denyer/1.html
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