Transgender law changes: ‘There’s no freedom to be a bigot under Australian law’

Tasmania wants to drop gender from its birth certificates and some are worried they’ll get sued if they don’t address people in the right way.

Will you be able to sue someone for not calling you Mr, Ms or X?

One expert believes changes to Tasmania’s anti-discrimination laws could leave people open to legal action.

The changes have been proposed as part of a number of measures including that listing gender on a birth certificate be made optional.

University of Notre Dame senior lecturer Greg Walsh told The Australian the proposed changes to anti-discrimination legislation would add the term “gender expression” into the act, which is defined as including “personal references that manifest or express gender or gender identity”.

“(This) could make it illegal for a person to not accept a transgender person’s gender identity, such as by declining to use their preferred personal pronoun,” Dr Walsh said.

But Maurice Blackburn Lawyers associate Patrick Turner told news.com.au that existing laws already provided the capacity to take action if someone did not use a preferred pronoun.

Mr Turner said an employee whose boss continued to use a different pronoun despite causing distress and being asked to use a different title, could already apply for a Stop the Bullying order under the Fair Work Act.

The federal Sex Discrimination Act 1984 also prohibits discrimination on the basis of gender identity, appearance or characteristics.

“I think it’s an arguable case under existing legislation, if you are referring to someone by a different pronoun that what they requested, they are being denied the quiet enjoyment of work and you are undermining their standing in the workplace, especially if you are doing it in front of a third party and humiliating them,” he said.

At a state level, Mr Turner said Tasmania’s anti-discrimination law also prohibits conduct that “offends, humiliates, insults or ridicules another person” on the basis of gender or other things like sex, age and pregnancy.

He said the new measures simply seemed to clarify the scope of the term “gender identity”.

“What these proposals appear to do, is ensure that ‘gender identity’ encompasses ‘gender expression’, which reflects how in the 21st century people might identify as different genders,” he said.

“There’s no freedom to be a bigot under Australian law and measures that protect transgender Australians are important to ensure an equal, safe and fair society.”

Mr Turner said there didn’t appear to be any additional remedies beyond those that already exist.

The changes to Tasmania’s laws were originally aimed at changing the state’s marriage act to be in line with the legalisation of same-sex marriage, and to eliminate the need for transgender people to divorce if they wanted to change their legal gender.

But Labor and the Greens used the opportunity to propose other amendments that would make it optional to have gender recorded on birth certificates.

Supporters of the same-sex marriage vote gather to celebrate the announcement in a Sydney. Picture: William West/AFP

While it has been possible for a trans person to change the gender on their birth certificate since 2002, Labor MP for Franklin, Alison Standen said most people still find it impossible.

This is partly due to expensive requirements they must fulfil including that they have genital operations, which can cost more than $25,000 and that they be monitored by a psychiatrist for at least a year.

During debate about the amendments in parliament on November 20, Greens MP for Franklin Rosalie Woodruff said she had known a person who had their breasts removed but would still need to have their uterus removed to be eligible to change their gender.

Ms Standen pointed out it had been possible to change gender on a passport without having surgery since in 2011.

“Gender markers have been off drivers’ licences in all states for over a decade,” Ms Standen told parliament. “The world has not ended. No one has lost awareness of their gender.”

She said the amendments did not stop the registrar or health professionals from collecting information about gender or sex, and did not interfere with statistics.

It also allows parents of a child who is not clearly male or female to have 120 days instead of 60 days to make a decision on how to raise the child. This may also avoid imposing avoidable surgeries on the children.

A separate amendment also seeks to protect people from hate speech.

Ms Standen said the Australian Christian Lobby had argued this would allow vexatious litigation but said: “This is simply a lie”.

She said it was simply fixing an error that saw people with gender identity and intersex variations inadvertently left out of section 19 of the anti-discrimination act that governs hate speech when it changed a few years ago.

“They went from protected to unprotected,” she said. “The Anti-Discrimination Commissioner at the time asked this to be fixed. She was told it would be with the next Justice omnibus bill. That was two years ago. Bills have come and gone and it still has not been fixed. This fixes it now.”

Ms Standen said the bar for considering something hate speech was high and was not for “trivial comments”.

“There has been a campaign of misinformation and lies about this. It is not a problem, it repairs a mistake and must be fixed and now is better than some day.”

Tasmania’s parliament was due to finalise changes to their laws by December 9 but the government delayed consideration of the bill in the upper house until March.

The bill has already passed the lower house.

It means the state will be at odds with the Commonwealth requirement for it to allow someone to change gender without divorcing until it can change the legislation next year.

In a tweet Prime Minister Scott Morrison described the plan to remove gender from birth certificates in Tasmania was “ridiculous” and called on Labor to outlaw it.

But Transforming Tasmania spokeswoman Martine Delaney told SBS his comments were “ill-informed”.

Labor’s plan to remove gender from birth certificates in Tasmania is ridiculous. Bill Shorten should step up and commit to put motion to ALP Federal Conference to outlaw it.

— Scott Morrison (@ScottMorrisonMP) November 20, 2018

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