Abstract
The United States is witnessing a wave of laws targeting transgender people, ranging from prohibitions on participation in sport, denial of access to gender affirming health care and regulating bathroom access and what people wear. This anti-trans trend that we are seeing in the United States is sending shock waves through the trans community in Australia. Is Australia going to follow the US ‘hate manual’? Are trans and gender diverse people here at risk of being persecuted, vilified and discriminated against in the same way? This article considers the gaps in Australia’s protection of the human rights of trans and gender diverse people and identifies where our laws need to be strengthened to ensure we follow a path of inclusivity and respect, not hate and division.
Trans people are extraordinary, strong, intelligent, persistent and resilient. We have to be. And we will not stand for the picking and choosing of rights.
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– Grace Dolan-Sandrino
The United States (US) is witnessing a targeting of trans and gender diverse (TGD) people at a pace and intensity never seen before. The Trans Legislation Tracker website
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is currently monitoring 658 anti-trans bills, across 43 US states. This is the fifth consecutive record-breaking year for the total number of anti-trans bills being considered in the US. The subject matter of these bills include: • • • • •
So far 45 bills have passed, while 125 remain active. A whopping 488 have failed, but not without first causing enormous harm to TGD people through the high-profile vilification they received from their elected representatives and the media.
There appears to be a coordinated approach behind this wave of anti-trans Bills in the US, driven by the so-called ‘religious right’. Research reveals how the evangelical voting bloc, which was essentially non-existent in the 1960s, became the single most important interest group for any Republican candidate in the 1980s, and is behind the current Republican support for anti-trans legislation.
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The religious right have an interest in keeping the base riled up about one thing or another, and when one issue fades, as with same-sex relationships and same-sex marriage, they’ve got to find something else. It’s almost frantic.
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Targeting the TGD community has filled the void left after the religious right lost the marriage equality battle. There are signs that the same strategy is being deployed in Australia, with the Australian Christian Lobby’s website having pages dedicated to ‘transgender’ and ‘gender ideology’ both of which contain disinformation such as, Proponents would have us believe that ‘gender is fluid’, ‘everyone is on a spectrum’ and it’s possible for female to become male and male become female. But it’s a cruel lie. Politically and culturally, this ideology is creating a prison for desperate children, consigning them to lifelong medical interventions, plastic surgery, and hormone dependence, all in an attempt to maintain a façade that denies scientific reality and leaves a trail of regret and devastation. It’s a modern-day tragedy.
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Thus, while Australia has recently seen many advances that have improved respect for the rights of LGBIQA+ people, ranging from marriage equality, expunging convictions for consensual gay sex and apologies for past wrongs. For the trans and gender diverse community, the story is quite different, with respect for their fundamental human rights deteriorating rather than improving.
One Nation MP Mark Latham’s Education Legislation Amendment (Parental Rights) Bill 2020 (NSW) is just one example of politicians seeking to use the law to discriminate against TGD persons. The object of Latham’s proposed legislation was to ‘prohibit the teaching of the ideology of gender fluidity to children in schools’. 6 The Bill was ultimately unsuccessful, as was Tasmanian Senator Claire Chandler’s Sex Discrimination and Other Legislation Amendment (Save Women’s Sport) Bill 2022 (Cth). However, these legislative initiatives illustrate how vulnerable TGD people are to targeted discrimination by our lawmakers and shed light on why TGD people suffer from anxiety and depression at far higher rates than the cisgender population. 7 The chronic stress that trans people are subjected to leads to negative health outcomes, including increased risk of eating disorders, self-harm and suicide. 8 The extent and causes of this harm was well documented in the recent Victorian Coroner’s findings into the suicides of five young trans women between September 2020 and May 2021. 9
In light of these developments, it is time to ask whether Australian laws adequately protect TGD people from legislative attacks and widespread vilification of the kind that has become commonplace in the US, and which appears to be creeping into Australia.
Australian laws protecting TGD persons
Unlike the US, Australia has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). 10 This international treaty does not explicitly mention sex, gender or gender identity. It simply addresses discrimination against women. The question is therefore: Are trans women considered women under international human rights law?
In the early years of this treaty, there was an apprehension that the ‘CEDAW woman’ was assumed to be heterosexual, able bodied, married (or likely to marry), and to have, or want, children. 11 However, the jurisprudence coming from the CEDAW Committee in more recent years indicates that this is a misapprehension, and the CEDAW Committee now accepts that trans women are women and therefore entitled to all the rights and protections of that treaty.
For example, in 2022, the CEDAW Committee considered a complaint from a lesbian in Sri Lanka who asserted that she was being discriminated against on the basis of her sexual orientation. Although the case had nothing to do with discrimination on the basis of gender identity, the CEDAW Committee seized the opportunity to state that ‘the rights enshrined in the Convention belong to
Although there are some dissenting voices within the UN regarding the recognition of trans women as women, most notably the UN Special Rapporteur on violence against women and girls, 14 the trend is clearly towards CEDAW being an inclusive international instrument that protects the rights of all women, not just cisgender women.
Australia has sought to give effect to CEDAW in our domestic law via enacting the Sex Discrimination Act 1984 (Cth) (SDA). In 2013, this legislation was significantly improved by the addition of provisions prohibiting discrimination on the basis of sexual orientation, gender identity and intersex status. 15
Section 4 of the SDA defines gender identity as ‘the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.’ In the recent case of Tickle v Giggle, 16 the Federal Court of Australia had the opportunity to clarify how the SDA’s prohibition on gender identity-based discrimination should be interpreted and applied. The Court was required to determine whether the owner of the App, Giggle for Girls, breached the SDA when it excluded Roxanne Tickle, a trans woman, from the platform which was marketed as being exclusively for women. 17 In August 2024, Justice Bromwich, in a lengthy judgment, found that Tickle was subjected to indirect discrimination when she was ousted from the platform on the basis that she did not have the appearance of a cisgender woman. Giggle for Girls was ordered to pay her $10,000 in compensation as well as legal costs. A detailed analysis of that decision is beyond the scope of this article, but it is worth noting that Bromwich J provides much needed clarification of the meaning of ‘sex’ in the SDA, finding that sex is not immutable. The Tickle v Giggle judgment ‘means it’s unlawful for a person to make decisions about whether someone is, or is not, a woman based on the sex that was originally recorded on their birth certificate, or based on how feminine they appear.’ 18
Regardless of the ultimate outcome of this case (it is subject to appeal), the SDA needs reform. The Act currently provides religious exemptions which allow faith-based educational institutions to discriminate against trans people – students and staff – on the basis of their gender identity, sexual orientation or sex characteristics. The Australian Law Reform Commission has recommended that religious exemptions be removed from the SDA, but the federal government appears unlikely to act on this recommendation in the near future. 19
Notwithstanding the decision in Tickle v Giggle, Australia continues to suffer from an ad hoc approach to protecting TGD people from discrimination at the state and territory level, with the result that the extent to which TGD people are protected depends on a ‘geographical lottery’. For example, Tasmania has never had religious exemptions for educational institutions in its anti-discrimination law and, since 2022, Victoria has prohibited discrimination on the basis of gender identity by religious bodies and schools. Contrast this with New South Wales (NSW) and Western Australia (WA), where religious schools can discriminate against TGD persons with impunity. TGD people are entitled to consistent respect for their human rights, not the patchwork quilt approach they currently endure.
What needs to change
There are several areas where law reform and other measures would significantly improve the lives of TGD people, and six are singled out here for further consideration.
1. Improving processes for changing birth certificates
Having ID that matches a person’s identity has many legal benefits as well as being vital for the health and wellbeing of TGD people. Being able to change the name and sex marker on a birth certificate is generally a pre-condition to changing other official documents, such as a driver’s licence. Notwithstanding the importance of having legal documents that match a person’s gender identity, whether and how a person can change their birth certificate depends on where they were born. A person born in NSW, for example, can only change the sex marker on their birth certificate if they can produce evidence that they have undergone a ‘sex affirmation procedure’, which is a surgical procedure to alter a person’s reproductive organs. This requirement must be removed. It is requiring TGD persons to undergo surgery, with all the attendant risks, and which may not be affordable or desirable from the perspective of the individual.
Western Australia had the Gender Reassignment Board for decades. To change the sex marker on a WA birth certificate, a person was required to produce a ‘gender recognition certificate’ which was only provided by the Board following proof that a person has undergone a ‘reassignment procedure’. This requirement has been described as a ‘cruel legal process’ 20 and ‘humiliating and inhuman’. 21 In September 2024, this archaic requirement of a medical or surgical reassignment procedure, and the Gender Reassignment Board, were both abolished. 22
Contrast NSW and WA with Queensland, which last year enacted the Births, Deaths and Marriages Registration Act 2023 that took effect in June 2024, and which removed the requirement for a person to have undergone sexual reassignment surgery before they could change the sex recorded on their birth certificate, instead establishing a new framework based on a person’s self-declaration of their lived identity. 23
2. Prohibiting conversion practices
Conversion practices involve interventions aimed at changing a person’s sexual orientation or gender identity. 24 These practices have been ‘rejected by the medical mainstream because they are based on the obsolete pathologisation of non-normative’ sexual orientations and gender identities. 25
In Australia, conversion practices have been banned along the length of the east coast – Queensland, the Australian Capital Territory (ACT), NSW and Victoria – but are still permitted in the rest of the country. Tasmania, WA and South Australia (SA) are all considering reforms, but need to move expeditiously to stop this practice which continues to inflict lasting harm and violates international human rights law. 26
It is vital that the bans on conversion practices precisely set out the prohibited behaviours and are developed in collaboration with survivors of these practices. 27 It is not sufficient to just prohibit conversion practices by registered professionals, such as psychologists and psychiatrists, in counselling and health care settings. This is because faith-based organisations are responsible for many of the conversion practices inflicted on TGD persons. Therefore, it is essential that the legislation be drafted to effectively prohibit conversion practices in all settings.
In the US, there is an increasing link between conversion practices and forced detransition initiatives. Organisations that promote conversion practices are lobbying legislators to enact laws that effectively force trans adults to detransition. This is done by prohibiting trans adults from accessing essential hormones and has already happened in Florida. 28 Although there is no evidence that campaigns to force detransition are being pursued in Australia, it is something that we must be alert to.
3. Increasing access to health care and coverage by Medicare
A perennial problem for TGD people is accessing appropriate health care. They face significant barriers, including the cost of treatment, shortage of doctors with relevant expertise and pervasive discrimination and stigmatisation. 29 Many TGD persons are unable to safely access health care, and a binary gender lens continues to permeate through the provision of health services. 30 The dearth of appropriate training for health care professionals leads to them having a lack of confidence in how to meet the unique needs of TGD people. 31
Another barrier to access is ‘the shortage of surgeons willing and able to provide gender-affirming surgery, and the costs associated with such surgery given that it is not generally covered by Medicare and therefore can be prohibitively expensive.’ 32 These barriers do not just make it difficult for TGD people to access appropriate health care, they also constitute a breach of human rights. In particular, Article 12 of the International Covenant on Economic, Social and Cultural Rights (which Australia ratified in 1975) provides that everyone has the right to the enjoyment of the highest attainable standard of physical and mental health. Australia has much work to do before this right is fully implemented for TGD persons.
4. Tackling online hate
Transphobic speech on social media is both relentless and harmful, and reached fever pitch during the Paris Olympics when Algerian boxer Imane Khelif was falsely accused of being a trans woman. The Online Hate Prevention Institute seeks to reduce the risk of suicide, self-harm, substance abuse, physical abuse and emotional abuse that can result from online hate. It observed the increase in hate speech during this time, including inciting violence against trans women. 33
Unfortunately, there is a lack of consistency between how different states and territories regulate hate speech and online hate speech. 34 While most jurisdictions prohibit vilification on the basis of race, the same cannot be said for vilification based on gender identity. The Commonwealth, Victoria, WA and SA do not have any protections for hate speech directed at TGD persons.
It is acknowledged that there are complexities around regulating online hate speech. However, what is clear is that conduct which is criminal offline should not escape criminality simply by moving to the online environment. Thus, there needs to be consistency between what is permissible in the physical world and what is permissible online.
The appellate decision of the ACT Civil and Administrative Tribunal in Rep v Clinch (Appeal)
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provides some much-needed clarity as to what constitutes hate speech towards trans women. The Tribunal stated that it is necessary to distinguish between, on the one hand, the many postings which are only insensitive, disrespectful, offensive, or insulting comments, or even just express hatred, revulsion, contempt or ridicule, but fall short of vilification, and, on the other hand, those postings which in addition are also likely to incite hatred, revulsion, serious contempt, or severe ridicule on the basis of gender identity and therefore amount to vilification.
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Applying this principle, the Tribunal found that nine out of 50 Facebook posts that were the subject of the proceedings amounted to vilification and ordered the Respondent to pay $5000 in compensation. The Tribunal undertook a detailed examination of each and every post, and explained its basis for finding that each did, or did not, amount to vilification.
5. Protecting TGD students in schools
One of the issues addressed frequently in anti-trans Bills in the US relates to trans children in schools. There is a moral panic around the need to protect ‘innocent children’ from learning about diverse sexualities and genders. We have seen similar moral panics in Australia.
One of the casualties of the marriage equality campaign was the defunding of the Safe Schools program. Significant research preceded the development of this program, including that sexuality and gender diverse students have poorer physical, mental and academic wellbeing outcomes and that students who perceive their school environment as inclusive have improved overall wellbeing. 37 This research was not enough to save Safe Schools in the face a fear mongering campaign alleging that the Safe Schools program indoctrinated students with ‘radical gender ideas’. 38 In 2017, Safe Schools lost its government funding, and was replaced with generic anti-bullying campaigns. 39
There are clear research findings that TGD young people in Australia experience high levels of mental distress, including self-harming (79.7 per cent), suicidal thoughts (82.4 per cent), and attempting suicide (48.1 per cent), and that these outcomes correlate with negative experiences such as peer rejection, bullying and discrimination within educational settings. 40 Given this knowledge, it is vital that we take action to make schools safe spaces for TGD students and that all students learn respect for diverse genders and sexualities.
In addition to reintroducing the Safe Schools program, the federal government, as noted above, should implement the Australian Law Reform Commission’s recommendations, as set out in its report Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws. 41 This comprehensive Report recommended the repeal of s 38 of the Sex Discrimination Act 1984 (Cth), which allows educational institutions established for religious purposes to expel a student, or refuse to enrol a student or otherwise discriminate against a trans or gender diverse student so long as it is done ‘in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed’. 42 In August 2024, Anthony Albanese announced that he would not be implementing the Report’s recommendations because there was not bipartisan support for the reforms. Thus, there appears to be little prospect of schools, particularly religious schools, becoming a safer space for TGD persons, anytime soon.
6. Awareness-raising campaign
Reforming the law is only one piece of the jigsaw puzzle. Creating a society where trans and gender diverse people are free to live their lives with dignity and equality, will take more than just enacting new laws, or repealing old ones. Hearts and minds also need to be changed. One way of achieving this is through awareness-raising campaigns that increase understanding and respect for TGD people. The Victorian government has taken the lead in this area with its ‘The Unsaid Says A Lot’ campaign. 43 Scan the QR code below to view the powerful video that highlights the many instances of discrimination that TGD people experience on a daily basis.
Victoria is also demonstrating leadership with the appointment, in August 2024, of trans man, Joe Ball as the Commissioner for LGBTIQA+ Communities. Having a trans person in this highly visible role will raise the profile of TGD people and the issues they face.
Conclusion
Implementing the six initiatives outlined above will help Australia to become a global leader in protecting the rights of TGD people, rather than a follower of the US model of bigotry, hatred and vilification. Australia needs to be vigilant about not adopting the US ‘hate manual’, and instead pave its own path towards inclusivity.
Trans and gender diverse people are a very small minority and thus a convenient group to focus on; an easier target than the LGBTIQA+ community as a whole. However, they are also the ‘canary in the coal mine’ and, if the fundamental human rights of TGD persons in Australia can be wound back, then every minority’s human rights are at risk.
Footnotes
Acknowledgment
The authors would like to thank the anonymous reviewers for their insightful comments which helped improve this article. Any errors remain the authors’ alone.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
