‘National Transgender Needs Assessment’, School of Sociology, University of New South Wales (2004) 29, in With respect: A strategy for reducing homophobic harassment in Victoria, Joint Working Group of the Victorian Attorney-General's and Health Minister's Advisory Committees on Gay, Lesbian, Bisexual, Transgender and Intersex (GLBTI) Issues (2007).
2.
Note, however, that protection from discrimination in Western Australia is on the ground of ‘gender history’ and therefore limited to those who have undergone sex affirmation surgery.
3.
Equal Opportunity (Gender Identity and Sexual Orientation) Act 2000, No 52 of 2000.
4.
Protection post-affirmation surgery was already available under the ‘sex’ attribute: M v A and U [2007] QADT 8; and under the impairment attribute: Menzies v Waycott [2001] VCAT 13.
5.
Although there is a tendency to conflate the terms, transsexualism and transgenderism are not the same. The person with transsexualism knows they are a member of the sex opposite that assigned to them at birth and takes all steps to correct their sex phenotype so it accords with the sex of their brain. A transgender person simply lives, or seeks to live, as though they were a member of the opposite sex without altering their sex phenotype. For a discussion, see Milton Diamond, Sex and Gender are Different (2002) http://www.hawaii.edu/PCSS/online_artcls/intersex/sexual_I_G_web.html at 2 November 2007.
6.
This is a distillation of the list of ‘specified conduct’ detailed in the Order in Hanover Welfare Services Ltd (Anti Discrimination Exemption) [2007] VCAT 640.
7.
[2007] VCAT640, [4]–[8].
8.
Ibid [9].
9.
Section 17 allows an employer to limit employment to people of one sex if it is a genuine occupational requirement. Section 19 allows an employer engaged in welfare services to limit employment to people with a particular attribute. Section 82 is a broad provision that allows discrimination in the provision of special services, benefits or facilities designed to meet the needs of people with a particular attribute, or prevent or reduce a disadvantage suffered by them in relation to education, accommodation, training or welfare.
10.
[2007] VCAT640 [15]–[17].
11.
For a recent discussion of those few occasions when a person is denied legal status in their contemporaneous sex see GurneyKaren, ‘Bad policy, bad law: The derogation of human rights for people with transsexualism since the “justice” statement’, (2006) 31(1) Alternative Law Journal36.
12.
Re Kevin (validity of marriage of transsexual) [2001] FamCA 1074, [329]; The Attorney-General for the Commonwealth and “Kevin and Jennifer” and Human Rights and Equal Opportunity Commission [2003] FamCA 94, [379].
13.
For example, the Births, Deaths and Marriages Registration Act 1996 (Vic), s 30A(1) provides that an unmarried person, over the age of 18 years, whose birth is registered in Victoria and has undergone sex affirmation surgery, may apply to the Registrar for alteration to the record of the person's sex in the birth registration.
14.
The exception, at least in theory, is the Sex Reassignment Act 1988 (SA) which was the very first such legislation proclaimed in Australia. Section 3 defines a reassignment procedure to mean a medical or a surgical procedure to alter the genitals. This recognises the practical difficulties associated with constructive male affirmation surgeries (metoidioplasty and phalloplasty). In practice, it seems the minimum requirement is at least a radical hysterectomy, also fitting with the Re Kevin requirement that the person is no longer able to function as a member of their former sex.
15.
The fatal extent of the prejudice directed against transgenders, even in supposedly great democracies such as the US, can be gauged from the ‘Remembering Our Dead’ website that chronicles the fate of some of those who died because of their difference: http://www.gender.org/remember/about/core.html at 2 November 2007.
Transgenders and those undergoing treatment for transsexualism are at an elevated risk of suicidal ideation and attempts. For example, in a study examining the relation between sexual orientation and suicidality, 73 transgender respondents were compared to heterosexual females (n = 1,083) and males (n = 1,077), psychosocially matched females (n = 73) and males (n = 73), and homosexual females (n = 256) and males (n = 356). Significantly more (p <.05) transgender respondents reported suicide ideation and attempts than any group except homosexual females. Sexual orientation did not differentiate transgender ideators or attempters from non-ideators or non-attempters. Attempters were more likely than non-attempters to report psychotherapy and psychiatric medications currently and previously as well as difficulties with both alcohol and drugs (attempters and ideators) or alcohol only (attempters): MathyRobin, ‘Transgender Identity and Suicidality in a Nonclinical Sample: Sexual Orientation, Psychiatric History, and Compulsive Behaviours’ (2002) 14(4) Journal of Psychology and Human Sexuality, 47, 47–65.
21.
Miliangos v George Frank (Textiles) Ltd [1976] AC443 at 478, per Lord Simon of Glaisedale, in CSR Limited v Eddy [2005] HCA64 (21 October 2005) para 14.
22.
Authors' emphasis.
23.
Catholic Education Office v Clarke [2004] FCAFC197; State of Victoria v Schou [2004] VSCA71, at [25], per Phillips JA (with whom Buchanan JA agreed).
24.
For example, art 4 of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) recognises that, even if women are given legal (de jure) equality, this does not automatically guarantee they will be treated equally (de facto equality). To accelerate women's actual equality in society and the workplace, States are permitted to use special remedial measures for as long as inequalities continue to exist. The Convention thus reaches beyond the narrow concept of formal equality and sets its goals as equality of opportunity and equality of outcome. Positive measures are both lawful and necessary to achieve these goals.
