Sunday, 30 March 2008

Report: All Love is Equal

At a time when the Federal Government is thinking about changes to Federal laws to ensure that they do not discriminate against same sex people, it is timely to remember the report "All Love is Equal" by the Gay and Lesbian Rights Lobby.

To see the report click here- 1.66MB.

Tuesday, 25 March 2008

Victorian relationship register on the way

The Bill to establish a relationship register in Victoria (along the same lines as the one in Tasmania) passed the lower house last week.

For a comment on the Bill, click here.

California court considers same sex marriage

The California Supreme Court heard oral arguments in In re Marriage Cases, which challenges the constitutionality of state laws that discriminate against same-sex couples in marriage. The challenge was lead by the US National Center for Lesbian Rights legal director Shannon Minter.

To hear the oral arguments, click here.

Monday, 24 March 2008

Why handling your own property settlement is a bad idea

Why handling your own property settlement is a bad idea

It looks bad, and it probably won't save money. Based on an article by English District Court judge Stephen Gerlis in The Times
Heather Mills is representing herself in her divorce proceedings against Sir Paul McCartney. It is an unusual move in a big-money case, but increasingly common in the family law courts.


There has been a lot of comment on the decision by Heather Mills to represent herself in the property proceedings against her estranged husband, Sir Paul McCartney. It is most unusual in a significant case involving such large sums. However, in more modest cases in which the availability of legal aid is limited, the family courts are seeing it happen with more frequency. But it remains a risky strategy. Here’s why:

1. You probably won’t understand how the court will reach its decision. The Family Law Act (or for de facto matters State and Territory legislation such as the Property Law Act 1974 (Qld)), under which these matters are decided, doesn’t speak of “common sense”. Instead, there are no less than four factors the court will take into consideration in its deliberations and the catch-all of “all the circumstances of the case”.

2. You won’t be aware of judicial guidelines. The Family Law Act hardly provides a definitive accounting mechanism under which these matters are worked out. Rather, the court relies heavily on guidelines laid down in major cases as to the approach that should be taken. To this must be added the important reservation that, in any event, each case will depend on its own facts.

3. “Big money” cases are a breed of their own. Forget what you've read. These cases have introduced important concepts into property settlement disputes such as “special contributions”, which are now trickling down into more modest disputes. But these concepts are not easily absorbed and understood by those who are not divorce lawyers.

4. You will be facing those who know what they’re doing. Bearing in mind that that the court does not approach these matters from a simplistic point of view, it follows that there are those who are well qualified and handsomely paid to understand how the system works and what the likely outcome will be.

5. Cross-examination is an art, not a science. Watching Perry Mason will not turn the man or woman in the street into a fully-fledged trial lawyer. There is only so much advocacy that can be learned from books. The rest is experience and flair, which can only be honed into something serviceable after several years in the business. Effective cross-examination is an art that very few are able to master to a high standard. Anything less than that standard is likely to fail to produce success. At worst, it could be repetitive and annoying.

6. Poor presentation is likely to antagonise the judge. There is no jury to impress, only one judge. His or her patience is not likely to be unlimited. Although considerable latitude may be afforded to a litigant in person, it is not the judge’s job to make up for any deficiencies there may be in presentation and argument. There is a way of doing things; you will not know that way unless you are a family lawyer. So you automatically start from a disadvantage.

7. Emotion has very little to do with it. The parties’ feelings are not mentioned in the Family Law Act as a consideration to take into account when deciding these matters. Indeed, conduct of the parties is only relevant, if it is economic, or if non-economic that there are special circumstances.

8. It’s a false economy. It will probably come as no surprise that the most common excuse for not employing a lawyer is that the spouse cannot afford it. That may be short sighted. A good lawyer ought to be able to achieve a result that is fairer and better value than a litigant struggling to do so on their own. Add to that the possibility that failure to understand and comply with court orders may result in orders for costs being made against that party and the numbers start to mount up. It’s also the lawyer’s job to try to broker a settlement in order to avoid the expense of protracted proceedings and a costly trial. Trying to do so on your own can be difficult.

9. Achieving a settlement may be harder. The court strives to encourage the parties to settle rather than go to trial. The problem is that without knowledge of what the court is likely to order if an agreement cannot be reached, a litigant in person will not be in a position to ascertain what the risks are and what kind of deal would be reasonable or unreasonable. That knowledge can only be ascertained by being familiar both with the law and the current thinking of the appellate courts, which does tend to change.

10. It just doesn’t look good. Being on your own can send out all the wrong signals: that you’re not taking the matter seriously, determined to be obstructive, penny-pinching, unwilling to compromise, just downright difficult. Is this really the impression you want the court to have?

In matters such as these, parties should give themselves the best chance. Deciding to represent yourself hardly does that. Don’t you deserve better?


Original article:



click here

Monday, 17 March 2008

Focus on transgender rights 6: discrimination not sex but marriage

In AB v Registrar of Births, Deaths and Marriages, AB was a post-operative, married male to female transgendered person who, after being refused a change to the gender on her birth certificate due to her being married (although separated), sought an order that the Victorian Act had discriminated against her in breach of the Commonwealth Sex Discrimination Act.

Her application was refused 2-1 by the Federal Court. The nubs of the cases were:

"AB contended that the prohibition against discrimination on the ground of marital status ....... gave effect to the Convention [for the Elimination of Discrimination Against Women] because: (1) the Convention was not solely concerned with discrimination against women on the basis of sex or with inequality between men and women; and (2) the Convention required parties to take appropriate measures to advance the status of women, and to reduce discrimination against them by eliminating practices reflecting stereotypical views. AB submitted that, if the Convention were only concerned with discrimination on the basis of sex, then there would be no need for arts 7 and 8 to specify that rights granted to women should be on equal terms with men. AB further submitted that arts 1, 2, 7 and 16 of the Convention imposed a secondary obligation, which was "to prohibit all forms of discrimination against women, which include[d] discrimination on the basis of marital status". That is, according to AB, the Convention imposed an obligation to eliminate discrimination on the ground of marital status per se in so far as the act of discrimination affected a woman.

"AB argued that, by virtue of s 22 of the [Sex Discrimination Act], the Commonwealth Parliament had made a legislative judgment that there was an obligation under art 5 of the Convention to prohibit discrimination against women on the basis of marital status. This was because s 22 gave effect to art 5 by proscribing discrimination on the ground of marital status to "nip in the bud" prejudices against women. Further, so AB submitted, if the Registrar’s arguments were accepted, then many provisions of the SDA would protect only against "discrimination, or unequal treatment, of women on the grounds of sex".

"The Registrar joined with AB in submitting that altering a birth registration could properly be regarded as a helpful activity and, therefore, a service for the purpose of s 22. Essentially, the Registrar’s submission was that a prohibition against married persons securing an alteration of their birth registration after gender reassignment surgery had nothing to do with remedying disadvantage against women. The prohibition reflected a decision taken by the Victorian Parliament concerning the institution of marriage. The criterion of marital status operated as a neutral criterion.

"The Registrar’s case was that s 22, when read with s 9(4) and (10), prohibited discrimination on the ground of marital status "if, and only if, the imposition of such a prohibition ... (a) operated on the facts ‘in relation to discrimination against women’ as that phrase is defined in art 1 of ... [the Convention]; and (b) would ‘give effect to’, in the sense of implementing Australia’s obligations under, [the Convention]". According to this analysis, there were two critical questions: first, did the Registrar’s conduct in refusing to alter the record of AB’s sex involve discrimination against women? Secondly, would prohibiting the Registrar’s conduct give effect to the obligations that Australia assumed under the Convention? The Registrar argued that the first question should be answered in the negative because the applications of a married man and a married woman would both be refused. Further, the Registrar said that the second question should be answered in the negative also because the obligations that Australia assumed under the Convention were concerned only with discrimination against women as compared to men. The Registrar submitted that, aside from art 2, s 22 was incapable of giving effect to arts 1, 5, 6, 7, 8 or 16 because their subjects were "quite distinct from the provision of services of the kind under consideration in this appeal". The appeal could only succeed, so the Registrar argued, if the Court held that s 22, when read with s 9(10), extended to "discrimination by the State of Victoria on the ground of any person’s marital status". The Registrar submitted that there were no textual or contextual indicators that the Convention sought to prohibit discrimination on the ground of marital status per se. Thus, so the Registrar submitted, the Convention imposed obligations to eliminate discrimination between women on the basis of marital status only for the purpose of ensuring equality of women with men.

"The Registrar contended that s 22 imposed a legitimate and effective prohibition on the conduct of the Crown in right of the State where that conduct directly (on the basis of sex and pregnancy) or indirectly (on the basis of marital status or family responsibilities) treated a woman less favourably than a man would be treated in the same or similar circumstances. The Registrar further argued that the Commonwealth Parliament had made "express choices about what fields of activity it will regulate, which actors it will regulate and to what extent it will regulate those actors in the chosen fields of activity".

"The Registrar submitted that the Commonwealth Parliament had not sought to implement the Convention’s obligations by enacting gender-neutral anti-discrimination legislation. This possibility was denied by s 9(4) and (10), which made it clear that s 22 operated only in relation to discrimination against women, as defined in art 1 of the Convention. The Registrar invited the Court to compare these application provisions with those in s 12 of the Disability Discrimination Act 1992 (Cth). The Registrar submitted that the expression "in relation to discrimination against women" in s 9(10) of the SDA was either a limitation or "a declaration by the Parliament of the subject matter and the scope of the Convention"."

The court went on to say:

"The importance for persons like AB of recognizing their identity through the issue of a birth certificate cannot be underestimated. It is also important for the communities to which they belong. This is inherent in the statements by the European Court of Human Rights in Goodwin at [77] and [100] that:

"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 arising from a formality. A conflict between social reality and law arises which placed the transsexual in an anomalous position, in which he or she may experience feelings of vulnerability, humiliation and anxiety."

...


"There have been major social changes in the institution of marriage since the adoption of the Convention as well as dramatic changes brought about by developments in medicine and science in the field of transsexuality. The Court has found ... that a test of congruent biological factors can no longer be decisive in denying legal recognition to the change of gender of a post-operative transsexual. There are other important factors – the acceptance of the condition of gender identity disorder by the medical professions and health authorities ..., the provision of treatment including surgery to assimilate the individual as closely as possible to the gender in which they perceive that they properly belong and the assumption by the transsexual of the social role of the assigned gender.


"This last-mentioned reference to the institution of marriage is apposite in the present context. The history of the Births, Deaths and Marriages Registration (Amendment) Bill 2004 (‘the Bill’) in Victoria shows that the State did not extend the benefit of the new legislation to married persons, because it was concerned to avoid conflict with the Commonwealth over the issue of "same sex" marriages, since at the Commonwealth level, the Government had opposed this possibility. The perceived difficulty would arise where, after a valid marriage, a party to the marriage sought recognition of a transsexual identity....

"The terms of ss 30A and 30C(3), as well as statements in the course of the second reading of the Bill, show that Pt 4A was deliberately limited to unmarried persons, in order to avoid conflict with the Commonwealth Government, which was then perceived as subscribing to a conception of the institution of marriage that would not allow for a married person to have a record of their sexual identity altered. Thus, Pt 4A enables the Registrar, upon application, to alter the sex in an unmarried post-operative transsexual person’s birth registration and issue a new birth certificate reflecting this alteration. The Registrar has no comparable power in the case of a married person, irrespective of whether the identity recognition sought is from a male-to-female or a female-to-male person. The adoption of marital status in Pt 4A as a criterion for eligibility is thus designed to serve a different purpose from the use of marital status as an indirect form of sex discrimination. In Pt 4A, the marital status criterion is intended to avoid colliding with a particular view of the institution of marriage....

"The fact that the prohibition in the State Act may, as in this case, prevent a married person, who has undergone sex affirmation surgery, from having her birth registration altered from male to female, does not affect th[e] conclusion. The State Act would operate in precisely the same way in the case of a married person who has undergone the surgery and seeks to have their birth registration altered from female to male. In this case, the criterion for discrimination is not sex, but marriage."

Focus on transgender rights 5: Re Alex

Re Alex concerned a 13 year old who in the eyes of the law and anatomically was a girl, but who had been diagnosed with gender dysphoria and identified as male.

The matter came before then Chief Justice Nicholson in the Family Court:

"No surgical intervention is sought or indeed contemplated by any of the parties or witnesses while Alex is under the age of at least 18 years.

" The key issue before me is whether I should authorise medical treatment involving the administration of hormonal therapies that will begin what is colloquially described as a “sex change” process. In order to reach this decision I must be firmly satisfied upon clear and convincing evidence that the proposed treatment is in Alex’s best interests...

"The application was brought by Alex’s legal guardian with a view to the commencement of treatment coinciding with Alex beginning secondary school. Alex wants the proposed treatment to start as soon as possible. All of the evidence before me supports such intervention. It indicates that hormonal treatment would be in Alex’s best interests and would benefit Alex’s mental and emotional health. Some differences emerged, however, among the experts as to the precise course and timing of the hormonal treatment."

In authorising treatment, the court dealt at length with evidence about gender dysphoria, and the possible impacts on Alex if the treatment were commenced or not. The court went on to say:

"The proposed treatment is uniformly recommended by the expert witnesses. It is in keeping with Alex’s wishes and will facilitate his socialisation into his chosen identity from the outset of his secondary schooling. In the past, Alex has been depressed and self-harming when he has thought that his deep wish to present as male has not been taken seriously. Those who know him well are supportive of the treatment that is proposed and concerned about self-harming conduct if he is unable to embark on the proposed treatment....


"I have canvassed above the physical consequences arising from each stage of treatment and I am satisfied that Alex has the capacity and indeed does in fact know the side effects that may arise and further that he wishes the proposed treatment with knowledge of such risks. The social implications of the proposed treatment are that Alex will face challenges in his chosen identity in respect of peer relationships, possible bullying and ostracism, but I am satisfied that impressive steps have been taken to anticipate such risks.


"On the other side of the balance, if treatment is not permitted there is consistent concern that Alex will revert to unhappiness, behavioural difficulties at home and self-harming behaviour. Socially, he will be significantly ill at ease with body and self-image during his period of adolescent development until he is competent to make his own treatment decision. Transition into a male public identity will be more difficult than if it occurs at the commencement of secondary school....

" I would also be concerned that his education and residential arrangements and his developmental socialisation would be jeopardised to his long term detriment if authorisation of the proposed treatment were refused.


"One important risk that Alex himself understands is that he will need to continue the hormonal treatment and may as an adult wish to have further interventions, all of which will require payment. The evidence persuades me that appropriate arrangements are in place for any transfer of the medical management of his case, and that Alex will have access to the caregiver payments which his aunt has set aside for him to meet the costs of continued treatment after the Applicant’s guardianship comes to an end."

The Human Rights and Equal Opportunities Commission supported the treatment. The court said:

"In its written submissions, the Commission said:




“3.8 ...fundamental human rights are denied when lesbians, gay men and transgender people are not given equal protection without discrimination by the law, or are unable to express their identity through means such as identifying themselves to friends or neighbours, socialising together in public social venues, or openly cohabiting with a partner.

"Article 8(1) of the [Convention on the Rights of the Child] also provides children with the right to preserve their “identity”. The concept of “identity” is not defined in the [Convention], although three elements of identity are listed by way of example - nationality, name and family relations. Sexual identity and gender identity are arguably within the scope of Article 8(1)...” (footnotes omitted)


"The Commission then observed that there is no single definition of “transgender identity” but, referring to s 38A of the Anti-Discrimination Act 1977 (NSW), noted that the definition of transgender person there included a person “who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex”. The Commission described this definition as ‘inclusive’ in the sense that it is not restricted to persons who have undergone or wish to undergo medical or surgical treatment to reassign their gender . It was submitted that an ‘inclusive’ definition is to be preferred to a definition that draws a distinction between transgender persons who have undergone medical or surgical treatment and those who have not, and that this definitional approach “is in keeping with the sentiment” expressed by the Full Court in Re Kevin (Validity of marriage of transsexual) (No 2) .... The Full Court there posed what it termed the “rhetorical question” of why surgery should be a pre-requisite to establish the fact of a change of sex.


"The Commission’s submission continued:


“3.12 On the basis of the above, it is submitted that:

(a) A child has a right to live with a transgender identity, free from discrimination, under international human rights law;
(b) It is in the child’s ‘best interests’ to have that right respected;
(c) A child’s right to live with a transgender identity should not be limited by a narrow definition of ‘transgender identity’ that relies on medical or surgical intervention. There is a right to choose how that identity is expressed;
(d) It follows that respecting a child’s right to live with a transgender identity does not, of itself, decide the issue, one way or the other, of whether the authorisation of a medical procedure is in the child’s best interests. The latter is a separate yet contextually related question to be decided by the Court, based on its assessment of the child’s best interests, and taking into account the right of a child to express their wishes and to be heard...”

"I agree with the submission as a matter of general principle, and in the present case, it weighs in favour of authorisation as being in his best interests.


"I would however, add the following caveat to Commission’s submission - that it is necessary in each case where the wishes of a child or young person are seen to be significant, and not just medical procedure cases, to give careful consideration to the evidence and opinions concerning the bases for such wishes and the weight they should be accorded ..."

Focus on transgender rights 4: Transgender gets passport without "right" birth certificate

In Abrams v Minister for Foreign Affairs and Trade,

the Administrative Appeals Tribunal has held that it may not be necessary to obtain a birth certificate showing the correct gender when applying for a passport. It did so when Grace Abrams, who had undertaken gender reassignment surgery from male to female, applied for a passport.


The problem was that Grace was married. Because NSW law (as in all States) required her to be unmarried to enable change of gender on the birth certificate, the gender shown on the certificate was that of her birth- male, not female.


In addition to her own evidence, Grace was able to show from medical certificates, drivers licence, Medicare card, bank accounts and third party identification, that she had undergone gender reassignment surgery, and was female.


The AAT found that Grace’s inability to provide a birth certificate from the Registrar of Births, Deaths and Marriages that recorded her female gender, when it was prevented by state legislation, was not a valid ground for rejecting her passport application, where her identity could be satisfactorily established by other means. The Department was directed to issue her passport.


Note: In Queensland, if the person lives and was married overseas, the person may still be able to obtain a birth certificate showing their correct gender, despite the legislation stating quite the contrary, due to an administrative ruling some years ago by the then Attorney-General, Rod Welford.

Focus on transgender rights 3: Getting married

The test for getting married, which is of a man and a woman to the exclusion of all others for life, was set out in The Mariage of Kevin and Jennifer, a decision of the Family Court, later upheld on appeal.

The then Howard Government did not appeal the matter to the High Court.

Before Kevin and Jennifer, the law had been based on old English cases, in which the gender of a person was assigned at birth, not how they were recognised or perceived themselves.

Thus, on this view of the law, it was entirely legal for a male to female transgendered woman to marry another woman, because in law it was recognised as a man and a woman.

Kevin and Jennifer sought a delcaration that their marriage was valid. The court stated:

"The husband was identified as a girl at birth and named Kimberley (not the real name). His genitalia and gonads were female, and he had and continues to have female (XX) chromosomes. However for as long as he could remember, he perceived himself to be male. Despite pressure to dress and behave as a girl, he wore boys’ clothes whenever he could, refused to play with girls’ toys, had many attributes of a boy, and saw himself as a boy, while growing up. He described his adolescence, and the feminisation of his body, as a “time of pain and dread”. He was harassed at times at school because of his male attitude and appearance. During his adolescence and early adult years he kept most of his thoughts to himself and felt extremely alienated from people.

"From 1994 he generally presented as a male, wearing trousers and shirts to work. In mid 1995 he saw an article about sex reassignment treatment, and he had feelings of relief and excitement upon learning of other people like him, and of how they had "discovered the medical means to express their true sex as men.” He embarked on hormone treatment in October 1995. This led to coarse hair growth on his face, chest, legs and stomach, and a deeper voice. In November 1997 he had surgery to reduce his breasts to male size. In September 1998 he had further surgery: a total hysterectomy with bilateral oophorectomy. The surgery constituted "sexual reassignment surgery” within the meaning of Section 32A of the Birth Deaths and Marriages Registration Act 1995 (NSW). As a result, his body was no longer able to function as that of a female, particularly for the purposes of reproduction and sexual intercourse.

"The parties met in 1996, and Kevin told Jennifer of his transsexual predicament. She perceived him as a man, and supported his desire “to bring his body into harmony with his mind”. They started living together in February 1997 and agreed to marry. In May 1997, Kevin changed his given name from Kimberley to Kevin. In September 1997 the couple applied successfully to an IVF program and Jennifer became pregnant by an anonymous sperm donor. The expert team concluded that Kevin "should be considered male biologically and culturally" and that the parties should "be considered a heterosexual couple with infertility consequent to absent sperm production".

"In March 1998 Jennifer changed her family name to Kevin’s. In October 1998 Kevin obtained a new Birth Certificate on which his sex was shown as male. Jennifer gave birth to a male child in November 1999. In August, having disclosed the relevant medical history to the marriage celebrant, they were married and a marriage certificate was issued.

"At the date of the marriage Kevin's male secondary sexual characteristics were such that he would have been subject to ridicule if he had attempted to appear in public dressed as a woman; he could not have entered a women’s toilet; and he was eligible to receive an Australian passport showing his changed name and stating his sex as male. He has been treated as a man for a variety of legal and social purposes, including his employer, Medicare, the Tax Office and other public authorities, banks, and clubs. Evidence from numerous family, friends and work colleagues testified to his acceptance as a man and to the acceptance of him as a husband and father.

"Psychiatric examination of Kevin revealed, in summary, that there was no evidence of psychosis or delusional disorder; that Kevin “presented as an intelligent, emotionally warm man who would be accepted socially as completely masculine”; that his “brain sex or mental sex" was male; and that he "is psychologically male and that this has been the situation all his life". "

The court held,granting a declaration that the marriage was valid:

1. For the purpose of ascertaining the validity of a marriage under Australian law, the question whether a person is a man or a woman is to be determined as of the date of the marriage.

2. There is no rule or presumption that the question whether a person is a man or a woman for the purpose of marriage law is to be determined by reference to circumstances at the time of birth...

3. Unless the context requires a different interpretation, the words “man” and "woman" when used in legislation have their ordinary contemporary meaning according to Australian usage. That meaning includes post-operative transsexuals as men or women in accordance with their sexual reassignment.

4. The context of marriage law, and in particular the rule that the parties to a valid marriage must be a man and a woman, does not require any departure from ordinary current meaning according to Australian usage of the word “man”.

5. There may be circumstances in which a person who at birth had female gonads, chromosomes and genitals, may nevertheless be a man at the date of his marriage....

6. In the present case, the husband at birth had female chromosomes, gonads and genitals, but was a man for the purpose of the law of marriage at the time of his marriage, having regard to all the circumstances, and in particular the following:-

(a) He had always perceived himself to be a male;
(b) He was perceived by those who knew him to have had male characteristics since he was a young child;
(c) Prior to the marriage he went through a full process of transsexual re-assignment, involving hormone treatment and irreversible surgery, conducted by appropriately qualified medical practitioners;
(d) At the time of the marriage, in appearance, characteristics and behaviour he was perceived as a man, and accepted as a man, by his family, friends and work colleagues;
(e) He was accepted as a man for a variety of social and legal purposes, including name, and admission to an IVF program, and in relation to such events occurring after the marriage, there was evidence that his characteristics at the relevant times were no different from his characteristics at the time of the marriage;
(f) His marriage as a man was accepted, in full knowledge of his circumstances, by his family, friends and work colleagues.

Focus on transgender rights 2: Anti-discrimination exemption against pre-op transgenders

In Hanover Welfare Services Ltd (Anti Discrimination Exemption), The Victorian Civil and Administrative Tribunal held that it was appropriate to discriminate in part:

"where appropriate, in the best interests of the women accommodated at either of the facilities mentioned ............., to refuse to provide accommodation there to a person who identifies as a male-to-female transsexual or transgender person unless and until that person provides to the Applicant a medical certificate certifying that that person has had gender reassignment surgery
"

The Tribunal went on to say:

"Hanover does not consider that this would mean that such a certificate would be required from all transgender people who require such accommodation. It would only be required in a relatively few cases. Even if such accommodation was refused because a person did not provide the required medical certificate, Hanover says that it will provide them with alternative accommodation, either in one of its services or by arrangement with another welfare provider. If such a person was to access any other women’s services provided by Hanover, that person would be accommodated as a woman, if that were what that person wished. No medical evidence would be required."

Focus on transgender rights 1: Transgendered wins recognition as woman

The Social Security Act positively discriminates in favours of gays and lesbians by failing to recognise same sex relationships, as it only recognises "marriage like relationships".

This was recently highlighted in Scafe and Another v Secretary, Department of Employment and Workplace Relations, a decision of the Administrative Appeals Tribunal.

Samantha Scafe,, a male to female transgendered person, who was pre-operative, was found to be able to keep Centrelink benefits because her relationship with her female partner was not a "marriage like relationship" because it was a lesbian relationship.

The Department opposed Samantha receiving any benefits, because it held the view that she was male, that the relationship was therefore a heterosexual one, and was a marriage like relationship.

Her doctor said in evidence:

"I consider Ms Scafe to be a true male-to-female transsexual , and in the time I have known her she has been living full-time in a female role and has been taking the female hormone, oestrogen.

Given that she has been taking oestrogen for many years, I believe that her penis would now be non-functioning with regards to sexual intercourse. This is, of course, one of the intended results of hormonal therapy.

The loss of sexual function in her genitalia may well be irreversible, as this may occur after many years of oestrogen therapy. The only way to determine this in a practical sense is to have a period of time off therapy, and to assess the return of function – if any – of her penis (and testicles). This would not be recommended, however, due to the detrimental effects this would have on Ms Scafe’s psychological health.

The other physiological effects of her hormonal therapy include breast growth, a reduction in hair growth on the face and body, reduction of hair loss on the scalp, and a change in body fat distribution to a more female form. Some of these effects are irreversible after some months or years on therapy.

Ms Scafe tells me that she had a skin infection with the bacterium Staphylococcus aureus (‘Golden Staph’) in 2001 and that she was advised that subsequent genital surgery (sex reassignment, or ‘realignment’, surgery) would be dangerous in the future because of the risk of incurring infection with this organism. Should this bacterium remain present in Ms Scafe, such surgery would, in my opinion, pose a significant risk to Ms Scafe. Her other medical conditions of obesity, asthma, diabetes mellitus, and hypertension would also pose significant and potentially life-threatening risks should major surgery be undertaken. In addition, she also advises me she has chronic hepatitis C infection which would pose a small risk of transmission to a surgeon. Given these factors, I would seriously doubt that any surgeon would be willing to undertake such major surgery on Ms Scafe currently, or in the foreseeable future.”

The Tribunal held:

"Ms Scafe is unable, for sound medical reasons, to have the genital surgery for gender realignment. Ms Scafe is, we accept, psychologically, socially and culturally a woman and has taken all the physiological steps that she can take to become a woman."

The Tribunal cited an earlier decision of the Federal Court, which said in part:

" Negative attitudes towards transsexuals are based fundamentally on religious and moral views and assumptions which are slowly changing in modern society. There is an increasing awareness today of the importance of the right to privacy, and growing tolerance of a person’s identity. But where the psychological sex and the anatomical sex of a person do not conform to each other it seems to me that the sex of a person must be determined by the anatomical sex. The day may come when the same result may be achieved by chemical treatment as is now achieved by surgery, but this has not arrived yet. I do not rule out the case where a person may achieve the anatomy of the other sex through chemical treatment if that ever becomes possible; but the evidence in this case and the material which is before the Court do not support the conclusion that this stage has been reached. When it does, the result may be different."

The Tribunal went on to say:

"Furthermore, the Full Court ... selected sexual anatomy as the controlling consideration when determining gender.... Although Lockhart J envisaged the future possibility of a gender reassignment being effected by new chemical treatments, his Honour observed that the evidence before the Court did not indicate that such a chemical reassignment had taken place in that case. In Ms Scafe’s situation, on the other hand, there have been manifest physical changes in her appearance and physiology as a result of extensive oestrogen hormone treatment.
The present case, therefore, is not one in which it is appropriate to frame the question of gender as turning on whether primacy should be given to anatomical as opposed to psychological characteristics, which was the approach taken in SRA. We are of the view that such a dichotomy oversimplifies the issue.
There is much to be said for the view that, in reaching a conclusion as to the gender of an individual, consideration should be given to and a determination made in light of all the characteristics of that person, including behavioural and psychological matters and social circumstances. The individual should be evaluated as a complete human being, taking into account their full range of behaviour, physiology, psychology and any other relevant features and characteristics.

"In this case, the evidence indicates that the sexual and reproductive functions of Ms Scafe’s genitalia have probably been lost as a consequence of the chemical changes effected by extensive and lengthy hormone treatment. This means that anatomical attributes which were treated as determinative in .... have been rendered non-functional, and probably irreversibly so. The qualifier “probably” is used because the evidence indicates that to make a conclusive determination of whether sexual and reproductive functions have been irreversibly lost would require both a cessation of hormone treatment and consideration of whether such functions were restored; a process which the evidence shows could be psychologically damaging for Ms Scafe.

"The consequences of the hormone treatment upon the sexual and reproductive functions of Ms Scafe in this case are similar to those which would arise if the male genitalia had been surgically removed, namely the destruction of Ms Scafe’s sexual and reproductive functions as a male. This consideration points to a conclusion that surgical intervention should not, of itself, be finally determinative of gender, and calls into question the cogency of treating the presence of male genitalia as the deciding factor of gender when those organs do not function sexually or reproductively. Finally, it was not disputed in this case that Ms Scafe lives psychologically as a woman. She socialises as a female; presents in identity and dress as a female; and is considered by the community to be part of a lesbian couple.

" In light of the circumstances of this case, there is support for the view that it would be appropriate for a court to consider whether the decisive weight given to anatomy by the Full Court in SRA as the essential and determinative factor of a person’s gender should be revisited in the context of the hardship and psychological difficulties borne by Ms Scafe and persons like her, who have lived much of their lives regarding themselves as trapped in the body of a person of the opposite sex..."

"If we were unconstrained by the authority ..., we would accept the submission that, in the circumstances of this case, Ms Scafe’s gender is female.
However, although there are grounds for distinguishing the circumstances and reasoning in [that case] from the present case, we consider that the unanimous and clear statements of the Full Court of the Federal Court that a completed surgical reassignment is necessary for an alteration of gender must be treated as determinative of the outcome in this case. Accordingly, we find that Ms Scafe is to be treated as a male for the purposes of the Act....

"We do not consider that the Australian community would regard the present relationship as one “resembling marriage”. That view is fortified by the exclusion of same sex couples from the ambit of a marriage-like relationship.
We do not accept the Secretary’s view that the perception of Ms Scafe and Ms Smith is irrelevant. That perception, and the perception of their friends and associates, is made relevant by e.g. s 4(3)(c) and (e) of the Act. That perception of the relationship is that it is a lesbian relationship, not a marriage-like relationship.
It follows in our view, as a matter of statutory construction, that a same sex marriage cannot amount to a marriage-like relationship, a conclusion which is supported in this case by the community perception of the relationship between Ms Scafe and Ms Smith.

"Whilst it is, strictly speaking, unnecessary to determine the question of whether in fact the relationship is “marriage-like”, we will deal with the arguments of the parties and indicate our conclusion.

"There is no dispute about the factual components of the relationship which are set out at some length in the findings of the Social Security Appeals Tribunal. The financial aspects of the relationship and the nature of the household, viewed alone, might perhaps point towards the existence of a marriage-like relationship. And that is true of some aspects of the nature of the commitment that evidently exists between Ms Scafe and Ms Smith. But the other features enumerated in s 4(3) of the Act, particularly the nature of the household, the social aspects of the relationship and the sexual relationship between Ms Scafe and Ms Smith, do not do so. They point to a same sex relationship.

"Viewing the relationship as a whole we could not conclude that it is a marriage-like relationship. Were it to be necessary to apply a description to the relationship, having rejected the description marriage-like relationship, we would describe it as a same sex relationship."

Tuesday, 11 March 2008

Greens propose relationship equality Marriage Act

Senator Nettle of the Greens has introduced to the Senate the Marriage (Relationships Equality) Amendemtn Bill 2008 which would change the definition of marriage from "a man and a woman" to "two people".

The stated objects of the Bill are to:
"(a) remove from the Marriage Act 1961 discrimination on the basis of sexual orientation and gender identity; and
(b) permit marriage regardless of sexual orientation and gender identity."

US: State Department ends HIV discrimination

This article is form Lambda Legal, which seeks legal equality in the US for LGBTI people:

We were headed to trial in less than two weeks, set to challenge the U.S. State Department's blanket ban on hiring people with HIV to be Foreign Service Officers.
But today the State Department has lifted the ban.
It has issued new guidelines for people living with HIV under which it will evaluate them on a case-by-case basis, as the law requires. This is a huge victory for people living with HIV.
"At long last,the State Department is taking down its sign that read 'People with HIV need not apply,'" says Lambda Legal's HIV Project Director, Bebe Anderson.
We've been fighting this case on behalf of our client Lorenzo Taylor for the past five and a half years. We also waged a massive public advocacy campaign, collecting 17,000 signatures from people around the country who spoke out against this policy. Today we can all take heart that the State Department heard our voices.
Partly due to the new guidelines, Lorenzo has decided to settle his lawsuit. "I wanted to serve my country as a Foreign Service Officer, but was told, 'Sorry we don't need your kind,'" Lorenzo says. "Now people like me who apply to the Foreign Service will not have to go through what I did. They and others with HIV will know that they do not have to surrender to stigma, ignorance, fear, or the efforts of anyone, even the federal government, to impose second-class citizenship on them. They can fight back."
Lorenzo's case is a stark reminder of the type of discrimination that people with HIV continue to face in the workplace.

HREOC urges government to “go further” to combat gay and lesbian discrimination

Australian Human Rights Commissioner, Graeme Innes, has written to the federal Attorney-General, Robert McClelland, encouraging the Government to change more federal laws that discriminate against gay, lesbian and transgender people and to take strong steps to change associated discriminatory behaviour in our society.

“The focus of our Same Sex: Same Entitlements report last year was on financial and work-related legislation that discriminates against same-sex couples and their children,” said Commissioner Innes.

“We identified 58 discriminatory laws in the report, but as the Attorney-General is reported to have said, there are many other pieces of federal legislation covering other areas of life in Australia that also discriminate against people who are gay, lesbian and transgender.”

In his letter, Commissioner Innes urged the government to change all such laws.

“Removing discrimination from all legislation - not just the 58 financial and work-related laws we identified - will be a much welcomed measure, but it is equally important that, as a society, we take steps to change discriminatory behaviour,” said Mr Innes.

“We encourage the government to play a leading role in stamping out discriminatory behaviour.”

Mr Innes said that sexuality discrimination legislation would be an initiative that, if introduced by the federal government, would provide strong benchmarks and guidelines to the community about behaviour that is discriminatory toward gay and lesbian people.

Mr Innes said that he spoke to many people before and after taking part in the 30th Gay and Lesbian Mardi Gras in Sydney on the weekend and the same questions were asked over and over again: When will the discrimination be removed from the 58 laws and when will all discrimination against gay, lesbian and transgender people be addressed?

“The Human Rights and Equal Opportunity Commission (HREOC) is not asking for any special treatment for people who are gay and lesbian”, Mr Innes said. “We are merely drawing attention to the fact that all Australians should be able to enjoy the same human rights in the same way, and while these people cannot, we are endorsing and supporting discrimination.”

Sunday, 9 March 2008

The more things change........

It was said that Kevin Rudd was Howard lite. However, one area in which there was a clear differentiation between the ALP and the Coalition was that with the exception of superannuation, Howard refused to implement the HREOC report that showed systematic discrimination at a Commonwealth level against same sex couples.

Labor said that it would. Now the Attorney- General Robert McClelland has signalled that he will identify the discriminatory pieces of legislation and introduce a bill to remove the discrimination. This approach has the bipartisan support of Opposition Leader Brendan Nelson. it appears now with Howard gone that the Opposition wants to move forward too.

Except for marriage- both major parties remain opposed to allowing same sex marriage or civil unions.

McClelland has now identified 100 pieces of legislation that discriminate...

One of those is no doubt the Judges Pensions Act. Justice Michael Kirby reportedly wrote to John Howard last year seeking to remove the discrimination that would prevent his partner Johan van Vloten from collecting a pension in case Justice Kirby died first.

Justice Kirby turns 70 in approximately one year,which is the statutory retirement age for Commonwealth judges. Let's see if the Rudd Government can change the laws before then.

My apologies...

I apologise to all - I have been snowed under with work for months and only now am able to come up for air- PHEW!

I will have a lot of posts in the next week.

Cheers

Stephen Page