Transgender issues facing schools in Queensland

On Tuesday I delivered a paper about legal issues for schools in Queensland, concerning transgender children and parents. Grammar schools will be the subject of the Human Rights Act, although other non-Government schools will not be.

LEGALWISE

12 November 2019

BRISBANE

LAW FOR SCHOOL COUNSELLORS

Legal issues related to supporting students who are transgender and gender diverse or who have transgender and gender diverse parents

By Stephen Page

LAW FOR SCHOOL COUNSELLORS

Legal issues related to supporting students who are transgender and gender diverse or who have transgender and gender diverse parents

By Stephen Page^[1]

Who is covered?

When looking at the LGBTIQ rainbow, it is easy to label people.  What has been described as alphabet soup has morphed from LGBT to LGBTI and LGBTIQ.  There are other variations.  LGBTIQ stands for:

·         Lesbian;

·         Gay;

·         Bisexual;

·         Transgender;

·         Intersex;

·         Queer.

For those who do not fit within what are commonly considered to be gender norms, may identify as transgender, transsexual, intersex, gender diverse, non-binary or queer.  An example of such a person is Norrie.  Norrie wanted to have a birth certificate in New South Wales that did not assign them as either male or female.  Therefore, Norrie challenged the registrar in court.  When the matter came to the High Court[2], the judgment commenced with the prophetic words:

            “Not all human beings can be classified by sex as either male or female.”

Norrie was born in Scotland with male reproductive organs.  In 1989 she underwent a “sex affirmation procedure”.  Norrie considered that the surgery did not resolve her sexual ambiguity.  She applied for her sex to be registered under the Births, Deaths and Marriages Act of New South Wales as “non-specific”.  Initially, the Registrar of Births, Deaths and Marriages was prepared to register Norrie’s birth as non-specific.  The High Court held:

            “The Registrar’s initial determination of Norrie’s application was right.  The appropriate record of her change of sex was from “male” (as it may be taken to have previously been recorded outside of New South Wales) to “non-specific”.  To make that record in the Register would be no more than to recognise, as the Act does, that not everyone is male or female and that the change to be registered was from an assumed registered classification outside of New South Wales as a male to, as Norrie’s application put it, non-specific.”

The High Court held:

            “It was open to the Registrar, in the exercise of the power [under that Act] to register Norrie’s change of sex by recording the change from classification as male to non-specific.  Moreover, there was no reason for the matter to be remitted to the Tribunal to make further the findings of fact in order for the matter to be finally determined.”

Further:

            “The Act does not require the people who, having undergone a sex affirmation procedure, remain of indeterminate sex – that is, neither male nor female – must be registered, inaccurately, as one or the other.  The Act itself recognises that a person may be other than male or female and therefore may be taken to permit the registration sought, as “non-specific”.  I note that under the Australian Passports Act, it is possible to have an Australian passport issue that identifies gender as male, female or not specified.”

As useful as any discussion as to relevant terms is this extract from Wikipedia:

            “Transgender people have a gender identity or gender expression that differs from their sex assigned at birth.  Some transgender people who desire medical assistance to transition from one sex to another identify as transsexual.  Transgender – often shortened as trans – is also an umbrella term: in addition to including people whose gender identity is the opposite of their assigned sex (transmen and transwomen), it may include people who are not exclusively masculine or feminine (people who are non-binary or gender queer, including bigender, pangender, gender fluid, or agender).  Other definitions of transgender also include people who belong to a third gender, or else conceptualise transgender people as a third gender.  The term transgender may be defined very broadly to include cross-dressers (although I would suggest that those who are gay men who dress in drag are not in that category).

            Being transgender is independent of sexual orientation: transgender people may identify as heterosexual, homosexual, bisexual, asexual, or may decline to label their sexual orientation.  The term transgender is also distinguished from intersex, a term that describes people born with physical sex characteristics “that do not fit typical binary notions of male or female bodies”.  The opposite of transgender cisgender, which describes persons whose gender identity or expression matches their assigned sex.

            The degree to which individuals feel genuine, authentic, and comfortable within their external appearance except their genuine identity has been called transgender congruence.  Many transgender people experience gender dysphoria, and some seek medical treatment such as hormone replacement therapy, sex reassignment surgery, or psychotherapy.  Not all transgender people desire these treatments, and some cannot undergo them for financial or medical reasons.

            Many transgender people face discrimination in the workplace and accessing public accommodations and healthcare.  In many places they are not legally protected from discrimination.”

How do you address a transgender student? 

Self-identity is critical to who each of us are as individuals.  As counsellors, I would urge each of you to listen to the students as to how they self-identify.  They may not identify as transgender, but as gender queer or even have no idea as to what they might identify themselves as.  They may call themselves male, female or even “they”.

Oscar Wilde said many years ago that “to assume is to make an ass out of u and me”.  I would urge you not to fall into error by assuming certain things, but instead to ask questions of the students in a non-judgmental and gentle way to be able to work out how they identify. 

Under the International Convention on the Rights of the Child (which I will deal with further below) every child has the right to an identity under article 8.

Anti-discrimination legislation

In Queensland there are two anti-discrimination laws:

·         Commonwealth Act: Sex Discrimination 1984;

·         Queensland Act: Anti-Discrimination Act 1991.

In addition, the Queensland Parliament has enacted the Human Rights Act 2019, which as I understand it is to commence in January. 

I will deal with each of these in turn.

Sex Discrimination Act 1984 (Cth)

The Act prohibits discrimination on a number of grounds including gender identity and intersex status.  Section 5B deals with discrimination on the ground of gender identity:

“(1)     For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the aggrieved person's gender identity if, by reason of:

(a)   the aggrieved person's gender identity; or

(b)   a characteristic that appertains generally to persons who have the same gender identity as the aggrieved person; or

(c)   a characteristic that is generally imputed to persons who have the same gender identity as 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 who has a different gender identity.

(2)        For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the aggrieved person's gender identity 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 who have the same gender identity as the aggrieved person.

(3)        This section has effect subject to sections 7B and 7D.”

Gender identity is defined in section 4 as meaning:

            “The gender-related identity, appearance or mannerisms or rather the 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.”

Section 5C deals with discrimination on the ground of intersex status:

“(1)     For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the aggrieved person's intersex status if, by reason of:

(a)   the aggrieved person's intersex status; or

(b)   a characteristic that appertains generally to persons of intersex status; or

(c)   a characteristic that is generally imputed to persons of intersex status;

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 who is not of intersex status.

(2)        For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of the aggrieved person's intersex status 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 intersex status.

(3)        This section has effect subject to sections 7B and 7D.”

Intersex status is defined in section 4 as meaning:

            “The status of having physical, hormonal or genetic features that are:

(a)   neither wholly female nor wholly male; or

(b)   a combination of female and male; or

(c)   neither female nor male.”

Section 7B provides an exemption as to indirect discrimination based on reasonableness:

“(1)     A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection…5B(2), 5C(2)…if the condition, requirement or practice is reasonable in the circumstances.

(2)        The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:

(a)        the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and

(b)        the feasibility of overcoming or mitigating the disadvantage; and

(c)        whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.”

In effect, if a person is seeking to discriminate based on the reasonableness test, the onus of proof falls on them to prove that the discrimination is reasonable.

This is made plain by section 7C:

            “In a proceeding under this Act, the burden of proving that an act does not constitute discrimination because of section 7B lies on the person who did the act.

Furthermore, section 7D deals with special measures intended to achieve equality.  It provides, relevantly:

“(1)     A person may take special measures for the purpose of achieving substantive equality between:

(ab)      people who are different gender identities; or

(ac)      people who are of intersex status and people who are not.

(2)        A person does not discriminate against another person under section…5B, 5C…by taking special measures authorised by subsection (1).

(3)        A measure is to be treated as being taken for a purpose referred to in subsection (1) if it is taken:

            (a)        solely for that purpose; or

(b)        for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.

(4)        This section does not authorise the taking, or further taking, of special measures for a purpose referred to in subsection (1) that is achieved.”

The Act allows for the operation of State and Territory laws that are capable of operating concurrently with the Sex Discrimination Act: section 10.

One may think on reading section 12 of the Act that there is a difference for students who attend State schools as oppose to religious or independent schools because section 12(1) says:

            “This Act binds the Crown in light of the Commonwealth, except as otherwise expressly provided by this Act, does not bind the Crown in light of the State.”

That view is incorrect because section 21 makes plain that it applies across the board to any educational authority:

“(1)     It is unlawful for an educational authority to discriminate against a person on the ground of the person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:

(a)   by refusing or failing to accept the person's application for admission as a student; or

(b)   in the terms or conditions on which it is prepared to admit the person as a student.

(2)        It is unlawful for an educational authority to discriminate against a student on the ground of the student's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:

(a)        by denying the student access, or limiting the student's access, to any benefit provided by the educational authority;

(b)        by expelling the student; or

(c)        by subjecting the student to any other detriment.

(3)        Nothing in this section applies to or in respect of a refusal or failure to accept a person's application for admission as a student at an educational institution where:

(a)        the educational institution is conducted solely for students of a different sex from the sex of the applicant; or

(b)        except in the case of an institution of tertiary education--education or training at the level at which the applicant is seeking education or training is provided by the educational institution only or mainly for students of a different sex from the sex of the applicant.

(4)        This section binds the Crown in right of a State.”

Educational authority is defined in section 4 as meaning:

            “a body or person administering an educational institution.”

Educational institution is defined in section 4 as meaning:

            “a school, college, university or other institution at which education or training is provided.”

Section 26 provides:

“(1)     It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person, on the ground of the other person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding, in the performance of that function, the exercise of that power or the fulfilment of that responsibility.

(2)        This section binds the Crown in right of a State.”

Section 32 provides:

            “Nothing in Division 1 or 2 applies to or in relation to the provision of services the nature of which is such that they can only be provided to members of one sex.”

Religious Schools

However, section 38(3) provides:

            “Nothing in section 21 renders it unlawful for a person to discriminate against another person on the ground of the other person’s sexual orientation, gender identity, marital or relationship status or pregnancy in connection with the provision of education or training by an educational institution that is conducted in accordance with the doctrines, beliefs or teachings of a particular religion or creed, if the first mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherence of that religion or creed.”

Anyone seeking to rely on this exemption would have the onus of proof to show that the discrimination based on gender identity does so “in accordance with the doctrines, beliefs or teachings of a particular religion or creed” if the discrimination is “in good faith in order to avoid injury to the religious susceptibilities of adherence of that religion or creed”.

This exemption does not apply to intersex students.  If the school believes it has the basis for the exemption but wrongly identifies the student, the school acts unlawfully.

Clearly the exemption does not apply to State schools or independent non-denominational schools.

Anti-Discrimination Act 1991 (Qld)

Section 7 provides that discrimination on the basis of certain attributes is prohibited.  In particular:

            “The Act prohibits discrimination on the basis of the following attributes –

            (m)       gender identity;

            (n)        sexuality;

(p)        association with, or relation to, a person identified on the basis of any of the above attributes.”

Section 8 provides:

“(a)     a characteristic that a person with any of the attributes generally has; or

  (b)      a characteristic that is often imputed to a person with any of the attributes; or

  (c)      an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or

  (d)      an attribute that a person had, even if the person did not have it at the time of the discrimination.

Example of paragraph (c)—

If an employer refused to consider a written application from a person called Viv because it assumed Viv was female, the employer would have discriminated on the basis of an attribute (female sex) that Viv (a male) was presumed to have. “

Section 10 defines direct discrimination:

“(1)     "Direct discrimination" on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

Example —

R refuses to rent a flat to C because—

• C is English and R doesn’t like English people

• C’s friend, B, is English and R doesn’t like English people

• R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality, is correct.

(2)        It is not necessary that the person who discriminates considers the treatment is less favourable.

(3)        The person’s motive for discriminating is irrelevant.

Example—

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.

(4)        If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

(5)        In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.”

Section 11 defines indirect discrimination:

“(1)     "Indirect discrimination" on the basis of an attribute happens if a person imposes, or proposes to impose, a term—

(a)        with which a person with an attribute does not or is not able to comply; and

(b)        with which a higher proportion of people without the attribute comply or are able to comply; and

(c)        that is not reasonable.

(2)        Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example—

(a)        the consequences of failure to comply with the term; and

(b)        the cost of alternative terms; and

(c)        the financial circumstances of the person who imposes, or proposes to impose, the term.

(3)        It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.

(4)        In this section—

"term" includes condition, requirement or practice, whether or not written.

Example 1—

An employer decides to employ people who are over 190cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2—

An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.”

Section 38 provides:

 “An educational authority must not discriminate—

(a)        in failing to accept a person’s application for admission as a student; or

(b)        in the way in which a person’s application is processed; or

(c)        in the arrangements made for, or the criteria used in, deciding who should be offered admission as a student; or

(d)        in the terms on which a person is admitted as a student.”

Section 39 provides:

“An educational authority must not discriminate—

(a)        in any variation of the terms of a student’s enrolment; or

(b)        by denying or limiting access to any benefit arising from the enrolment that is supplied by the authority; or

(c)        by excluding a student; or

(d)        by treating a student unfavourably in any way in connection with the student’s training or instruction.”

Section 41 provides:

“An educational authority that operates, or proposes to operate, an educational institution wholly or mainly for students of a particular sex or religion, or who have a general or specific impairment may exclude—

(a)        applicants who are not of the particular sex or religion; or

(b)        applicants who do not have a general, or the specific, impairment.”

Section 109 of the Commonwealth Constitution says:

            “When a law of a State is inconsistent with the law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”

In other words, where the Commonwealth Act in section 38(3) has allowed exemptions in religious schools in connection with – the exemption would arise both for prospect of students and existing students.  The exemption would, because of section 109 of the Commonwealth Constitution therefore provide protection to those schools from sections 38 and 39 of the State Act. This is made plain, if there were any doubt, by section 106(1)(a) of the State Act:

            “A person may do an act that is necessary to comply with, or is specifically authorised by –

(a)   an existing provision of another Act.”

“Existing provision” means a provision in existence at the commencement of this section, i.e. in 1991.  Section 38(3) of the Commonwealth Act was not in that form in 1991, but considerably later.

However, if funding is provided under a State law, attention needs to be given to section 101:

“A person who—

(a)        performs any function or exercises any power under State law or for the purposes of a State Government program; or

(b)        has any other responsibility for the administration of State law or the conduct of a State Government program;

must not discriminate in —

(c)        the performance of the function; or

(d)        the exercise of the power; or

(e)        the carrying out of the responsibility.”

There has been a small number of cases, all involving prisoners where the Anti-Discrimination Act has been invoked concerning transgender people.  In Sinden v. State of Queensland [2012] QCAT 284, the applicant sought unsuccessfully to contend that the Department of Corrective Services refusal in allowing him to commence female hormone therapy was discriminatory and contravened the Act and in the alternative the failure of the Department before such refusal to cause an investigation to be carried out as to whether there were proper clinical grounds for the applicant to be allowed to commence female hormone medication. 

In Chester v. Detective Senior Constable Jane Barnaby (No. 2) [2014] QCAT 695, the applicant claimed that the Constable was in breach of the Queensland Police Service Good Practice Guide for the interaction with transgender clients and in breach of section 10 of the Act.  The Tribunal found it difficult to understand what the nature of the complaint was except it appeared the applicant was particularly concerned with the manner in which an assault investigation of the manager of Ultratune was conducted.  The applicant contended that it was not impartial.  The best that could be said was that behaviour changed once the applicant told the officer that she was transgender in that she was placed in a padded cell and the officer did not apply Queensland Police Services procedures.  Amongst other complaints, the Tribunal found that there was no evidence at all that the officer engaged in that conduct.

Brosnahan v. Ronoff [2011] QCAT 439 was a case of vilification of a transgender person which judgment started with these sentences:

            “This unfortunate, and all too common, story about the lack of tolerance for members of Queensland’s transgender community begins in the dark hours past midnight on 9 April 2009.  On that event, Ms Jo Brosnahan was awoken by the sound of her neighbour, Mr Jason Ronoff, wrenching the palings off her fence.  Accompanied by a group of apparently intoxicated friends, Mr Ronoff screamed obscenities in Ms Brosnahan’s direction and threatened to burn her house down, while she hid inside, alone in the darkness, fearing for her safety.”

Mr Ronoff was ordered to pay $10,000 including interest as compensation for vilification and $5,000 including interest for compensation for harassment. 

Tafao v. State of Queensland [2018] QCAT 409 involved a transgender woman prisoner in a male prison.  The case is a useful discussion of indirect discrimination.  When born Tafao was identified as male on her birth certificate but had lived as a female since she was 13 or 14.  The applicant had taken hormone therapy since she was approximately 15 and underwent partial gender reassignment surgery in approximately 2002.  The applicant is identified as female on her New Zealand passport.  The applicant was described on the order for transfer of a prisoner as having the male gender.  The approach taken by the prison operator was that prisoners who are transgender are incarcerated at the male prison when they are preoperational and that no-one with a penis goes to a female centre.  The conclusion reached by the Tribunal was that the applicant retained a penis and that was the basis for the applicant’s incarceration at that prison and being described as being in the order for transfer of prisoners being of the male gender.  The applicant was unsuccessful in her claim.

I am grateful to law graduate Alex Ladd for leading me to the QCAT decisions and advising me that unfortunately bullying of transgender students in schools remains rife.

Human Rights Act 1991

The Human Rights Act as I understand it is to commence in January.’

Section 8 provides:

            “An act, decision or statutory provision is compatible with human rights if the act, decision or provision –

(a)   does limit a human right; or

(b)   limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with section 13.

Section 9 defines “public entity”, relevantly being:

·         A government entity within the meaning of the Public Service Act 2008 (section 24);

·         A public service employee;

·         A Minister;

·         An entity established under an Act when the entity is performing functions of a public nature;

·         An entity whose functions are, or include, functions of a public nature when it is performing the functions for the State or a public entity (whether under contract or otherwise).

Example of an entity not performing functions of a public nature for the State –

·         A non-State school is not a public entity merely because it performs functions of a public nature in educating students because it is not doing so for the State.

·         A person who is a staff member or executive officer (however called) of a public entity.

·         An entity prescribed by regulation to be a public entity.

A public entity includes a registered provider when the provider is performing functions of a public nature in the State: section 9(2)(a).

A Queensland grammar school might be a public entity as within section 9(1)(f) it is an entity established under an Act – when the entity is performing functions of a public nature, i.e. educating students.  The Grammar Schools Act 2016 (Qld) has the purpose of maintaining public confidence in grammar schools, which is achieved by regulating the governance and administration of grammar schools.  The following schools are grammar schools under section 6:

·         Brisbane Girls Grammar School;

·         Brisbane Grammar School;

·         Ipswich Girl’s Grammar School including Ipswich Junior Grammar School;

·         Ipswich Grammar School;

·         Rockhampton Girls Grammar School;

·         The Rockhampton Grammar School;

·         Toowoomba Grammar School;

·         Townsville Grammar School.

Under Division 1 – Establishment, section 1 provides for a board of trustees for each grammar school.  It then sets out that a board is a body corporate and may sue and be sued in its corporate name.

It would appear clear in my view that a grammar school in Queensland falls fair and square within section 9(1)(f) and is therefore a public entity when it is educating students.  Other independent schools, such as Catholic schools, do not appear to be established under an Act.  The Education (Accreditation of Non-State Schools) Act 2017 (Qld) provides for accreditation of non-State schools but does not provide for their establishment.  In particular, that Act provides for the establishment of the non-State schools accreditation board whose functions include under section 100(b):

            “to accredit non-State schools”

Therefore while independent schools, including religious schools would not be public entities, grammar schools would be.

Section 10 of the Human Rights Act sets out when a function is of a public nature, providing relevantly:

“(1)     In deciding whether a function of an entity is of a public nature for this Act, any of the following matters may be considered:

(a)   whether the function is conferred on the entity under a statutory provision;

(b)   whether the function is connected to or generally identified with functions of government;

(c)   whether the function is of a regulatory nature;

(d)   whether the entity is publicly funded to perform the function;

(e)   whether the entity is a government owned corporation.

(2)        Subsection (1) does not limit the matters that may be considered in deciding whether a function is of a public nature.

(3)        Without limiting subsection (1) or (2), the following functions are of a public nature —

(b)        the provision of any of the following —

(iv)       public education, including public tertiary education and public vocational education;”

Under section 11 all individuals in Queensland, but not corporations, have human rights.  Under section 12, human rights are in addition to other rights and freedoms under any other law.

Section 12 gives examples of another law:

·         The Commonwealth Constitution;

·         A law of the Commonwealth;

·         The Common Law;

·         Rights under the International Covenant on Civil and Political Rights not stated in this Act;

·         Rights under the Universal Declaration of Human Rights not stated in this Act;

·         Rights under other International Conventions;

·         Other international laws.

An example of another Convention is the International Convention on the Rights of the Child.

Section 13(1) provides:

            “A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.”

The factors are then listed in section 13(2) as to what is reasonable and justifiable.  Section 14 says:

            “Nothing in this Act gives any person or other entity a right to limit to a greater extent than is provided for under this Act, or destroy, a human right of any person.”

Section 15 provides:

“(1)     Every person has the right to recognition as a person before the law.

  (2)      Every person has the right to enjoy the person’s human rights without discrimination.

  (3)      Every person is equal before the law and is entitled to the equal protection of the law without discrimination.

  (4)      Every person has the right to equal and effective protection against discrimination.

  (5)      Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.”

Amongst the rights specifically protected are those in section 17 which provides relevantly:

            “A person must not be –

(b)        treated or punished in a cruel, inhumane or degrading way.”

Section 18(2) provides:

“(2)     A person must not be made to perform forced or compulsory labour.”

Section 18(3) states that “forced or compulsory labour” does not include:

(a)          work or service normally required of a person who is under detention because of a lawful court order or who, under a lawful court order, has been conditionally released from detention or ordered to perform work in the community; or

(b)          work or service performed under a work and development order under the State Penalties Enforcement Act 1999; or

(c)          work or service required because of emergency threatening the Queensland community or a part of the Queensland community; or

(d)          work or service that forms part of normal civil obligations.

Section 21(2) provides:

            “Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Queensland and whether –

(a)   orally; or

(b)   in writing; or

(c)   in print; or

(d)   by way of art; or

(e)   in another medium chosen by the person.”

Section 25 provides:

            “A person has the right –

(a)   not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and

(b)   not to have a person’s reputation unlawfully attacked.”

Section 26 provides:

“(1)     Families are the fundamental group unit of society and are entitled to be protected by society and the State.

(2)        Every child has the right, without discrimination, to the protection that is needed by the child, and is in the child’s best interests, because of being a child.

(3)        Every person born in Queensland has the right to a name and to be registered, as having been born, under a law of the State as soon as practicable after being born.”

The Human Rights Act allows for a declaration of incompatibility by the Supreme Court of human rights with existing legislation. 

Another key to the Act is the conduct of public entities.  Under section 59, a person may seek any relief or remedy in relation to an act or decision of a public entity on the ground that it was unlawful under section 58 or otherwise: sections 59(1) and (2).  The person is not entitled to be awarded damages on the ground of unlawfulness arising under section 58: section 59(3).  However, if the person is entitled to damages otherwise, they would still have the ability to claim them: section 59(6).

Section 58 provides relevantly:

“(1)     It is unlawful for a public entity –

(a)   to act or make a decision in a way that is not compatible with human rights; or

(b)   in making a decision, to fail to give proper consideration to a human right relevant to the decision.

(2)        Subsection (1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, or of the Commonwealth or another State or otherwise under law. 

Example – a public entity is acting to give effect to a statutory provision that is not compatible with human rights.

(3)        Also, subsection (1) does not apply to a body established for a religious purpose if the act or decision is done or made in accordance with the doctrine of the religion concerned and is necessary to avoid offending the religious sensitivities of the people of the religion. 

(4)        This section does not apply to an act or decision of a private nature. 

(5)        For subsection (1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to –

            (a)        identifying the human rights that may be affected by the decision; and

            (b)        considering whether the decision would be compatible with human rights.

(6)        To remove any doubt, it is declared that –

(a)        an act or decision of a public entity is not invalid merely because, by doing the act or making the decision, the entity contravenes subsection (1); and

(b)        a person does not commit an offence against this act or another act merely because the person acts or makes a decision in contravention of subsection (1).”

The Act also allows for the making of human rights complaints to the Human Rights Commissioner (the former Anti-Discrimination Commissioner) for which there may be conciliation of human rights complaints.  One of the powers of the Act is that the Commissioner may publish information about a human rights complaint that the Commissioner has finished dealing with, but must not include personal information about an individual unless the information has previously been published, or given for the purpose of publication, by the individual.  There is no restriction otherwise on publishing the name of the public entity, such as a State school or a grammar school that is involved. 

Treatment for children

In November 2017, a specially constituted five member court of the Family Court of Australia determined the case of Re Kelvin [2017] FamCAFC 258[3].  It was a case arising from an application by the father concerning the administration of stage 2 medical treatment for gender dysphoria for his then 16 year old child Kelvin.  In essence, the question stated for the opinion of the Full Court concerned the effect of the Full Court’s decision in Re Jamie [2013] FamCAFC 110 and the role of the Family Court more generally in relation to stage 2 medical treatment for gender dysphoria and the determination of Gillick competence.

The Court set out in its judgment as to what was gender dysphoria, as defined in DSM-5, treatment guidelines for the care of transgender diverse children at adolescence, in accordance with the WPATH Standards of Care, Version 7 (2011) and the Endocrine Society Treatment Guidelines (2009).

At the time of the judgment it was expected that Australia’s specific guidelines for the standards of care and treatment for transgender and gender diverse children at adolescence were expected to be available in September 2017.  The Court went on to say:

      “Best practice medical treatment for Gender Dysphoria is often following a comprehensive multidisciplinary assessment.  The multidisciplinary treating team may include clinicians with the experience of the disciplines of child and adult psychiatry, paediatrics, adolescent medicine, paediatric endocrinology, clinical psychologist, gynaecology, andrology, fertility counselling and services, speech therapy, general practice and nursing.  These treating professionals need to agree on the proposed treatment plan before it can be implemented.  Medical treatment is only commenced after physical examination and blood tests confirm that the adolescent has entered into puberty.  Best medical practice is that the adolescent and their parents/guardians must provide informed consent.

      The existing Medicare legal structure for stage 1, stage 2 and stage 3 treatment in Australia requires at least one psychiatrist or a clinical psychologist to confirm a diagnosis of Gender Dysphoria in Adolescence prior to medical intervention.

      Stage 1 treatment is “puberty blocking treatment” and the effects of this treatment are reversible when used for a limited time for approximately three to four years.  Gonadotrophin releasing hormone analogue (GnRHa) are used for stage 1 treatment and are administered via injection with the aim of reducing the psychological distress associated with development and progression of the unwanted, irreversible changes of the adolescent’s endogenous (biological) puberty.  It also allows the adolescent time to mature emotionally and cognitively such that they can achieve maturity sufficient to provide informed consent for stage 2 treatment.  Stage 1 treatment is ideally commenced in the early stages of puberty (known as Tanner Stage 2) which can occur from the age of approximately nine to 12 years of age.

      Stage 2 Treatment or “gender affirming hormone treatment” involves the use of either estrogen to feminise the body in those who have a female gender identity or use of testosterone to masculinise the body in those who are male gender identity.  This treatment is ideally commenced at an age where the adolescent is sufficient mature to be able to provide informed consent given the irreversible nature of some of the effects of estrogen and testosterone. 

      The irreversible physiological effects of estrogen are breast growth and decreased sperm production and partially irreversible effects are decreased testicular volume and decreased terminal hair growth.  The irreversible physiological effects of testosterone are facial and body hair growth, scalp hair loss, clitoral enlargement, vaginal atrophy and deepening of voice.

      Stage 2 treatment for Gender Dysphoria may, but does not necessarily, cause long term infertility.  For individuals who are assigned male at birth, estrogen treatment may render the adolescent infertile over time.  However, options are explored with the adolescent regarding their future ability to have biological children prior to the commencement of estrogen use including preserving their fertility using sperm preservation procedures prior to the commencement of estrogen use.

      So that it is clear, stage 2 treatment does not include stage 3 treatment which treatment involves surgical interventions.  Those interventions include:

(a)   chest reconstructive surgery (also known as top surgery)…;

(b)   phalloplasty;

(c)   hysterectomy;

(d)   bilateral salpingectomy;

(e)   creation of a neovagina;

(f)     vaginoplasty.

Failure to provide gender affirming hormones results in the development of irreversible physical changes of one’s biological sex during puberty or the development of changes that lead to the need for otherwise avoidable surgical intervention such as chest reconstruction in transgender males or facial feminisation surgery in transgender females.

The prolonged use of puberty blockers (stage 1 treatment) has long term complications for bone density (osteopenia) namely osteoporosis and bone fractures in adulthood.  Best practice is to limit the time an adolescent is on puberty blockers and then commence estrogen or testosterone.  Delaying stage 2 treatment for those on puberty blockers also results in psychological and social complications of going through secondary school in a pubertal state which is inconsistent with the child’s peers.

The distress caused by Gender Dysphoria can lead to anxiety, depression, self-harm and attempted suicide. 

Individuals with Gender Dysphoria who commence sex hormone therapy generally report improvements in psychological wellbeing.  An affirmation of their gender identity coupled with improvements in mood and anxiety levels typically results in improved social outcomes in both personal and work lives.

For a transgender male, manifestations of increased body hair and deepening of the voice are generally considered by them as positive. 

For transgender females if stage 2 is not administered another risk is linear growth beyond their expected final height.

Some patients receiving treatment for Gender Dysphoria have reported purchasing hormones over the internet or illegally obtaining hormones through prescriptions written for other people.  They have also reported that estrogen and testosterone are cheap and freely available over the internet or through friends or acquaintances.  Accessing hormones in this way is dangerous for several reasons including the risks of complications from blood born viruses such as Hepatitis B, Hepatitis C and HIV contractible with shared use of needles and syringes and the taking of inappropriate dosages of hormones which can be life threatening.”

Kelvin had experienced all aspects of the DSM-5 diagnostic criteria for Gender Dysphoria since he was 9.  In April 2014 when he was in year 8, Kelvin transitioned socially as a transgender person.  Throughout 2015, Kelvin attended upon doctors for referrals for his general health and wellbeing.  In April 2015, Kelvin commenced being named by his preferred name at school.  In that same month he attended upon a psychologist and continued to do so for 10 sessions.  In June 2015, Kelvin attended upon an endocrinologist.  He attended a further appointment with his doctor in August 2016.  In October 2015, Kelvin commenced attending upon an accredited counsellor mental health social worker.  In July 2016, Kelvin attended upon a psychiatrist.  In July and August 2016, Kelvin attended upon a psychologist.

Kelvin’s history of Gender Dysphoria has resulted in significant problems with anxiety and depression including self-harming for which he has been prescribed medication.  His mental health improved since taking steps towards a medical transition.  Kelvin had not undergone stage 1 treatment and as a consequence has experienced female puberty which has caused him significant distress.  Stage 2 treatment is necessary for his ongoing psychological health and wellbeing.  Although they were separated, both Kelvin’s parents supported him commencing stage 2.  Kelvin was 17 and wished to commence stage 2.

The Court noted that between 2013 and 2017 it ended up with 63 cases involving applications of either stage 2 or stage 3 treatment.  In 62 of those cases the outcome allowed treatment.  The most common outcomes were:

(a)          declaring a child Gillick competent to consent (26);

(b)         finding that the child is Gillick competent to consent (22);

(c)          finding Gillick competence and making a declaration (7).

In the one case where an application was dismissed the child was 17 years and 11 months at the time of the hearing.  The application was not supported by evidence that would allow the Court to make a positive finding that the child was Gillick competent.  In 39 of the 63 cases the date of filing of the initiating application was recorded in the judgment and on average took 26 days.

A study undertaken in 2016 found the average delay for families was 8 months from the time the process commenced until the adolescent commenced treatment.  The Court costs over 12 families varied between $8,000 and $30,000. 

The Royal Children’s Hospital Gender Service in Victoria had since its commencement in 2003 received 710 patient referrals including 126 between 1 January and 7 August 2017.  96% of all those patients received a diagnosis of Gender Dysphoria and continued to identify as transgender or gender diverse into late adolescence.  No patient who had commenced stage 2 treatment had sought to transition back to their birth assigned sex.  No longitudinal study is yet available.

The Court came to the conclusion that Court approval is not required for stage 2 treatment where the child is Gillick competent.

The Court said:

      “We think it important to emphasise that the Court in this case is concerned to examine, within the confines of the questions stated, whether there is any role for the Family Court in cases where there is no dispute between parents of a child who has been diagnosed with Gender Dysphoria, and where there is also no dispute between the parents and the medical experts who propose the child undertake treatment for that dysphoria.  To paraphrase counsel for the Royal Children’s Hospital, the question is why should the family of a child in one wing of the Hospital be forced to come to court before recommended medical treatment commences when the family of a child in another wing of the Hospital is not required to do so, in circumstances where both forms of treatment carry a significant risk of making the wrong decision as to a child’s capacity to consent and with both forms of treatment the consequences of a wrong decision are particularly grave.”

Changing identity on birth certificates

The first comment that needs to be made is that each of the States and Territories (and for that matter overseas jurisdictions) regulate their own birth register.  Therefore, it may be necessary for the alteration of a birth register that the person has to do it in the place in which they were born.  This can be problematic.  Recently I saw a transgender client who lives in Queensland.  My client was born in Papua New Guinea and is unable to change the birth register as to the gender marker and, I suspect, their name.

Change of name of adults

There is a fairly straightforward procedure under the Births, Deaths and Marriages Registration Act 2003 (Qld) for the change of names.  In essence there is a form to be filled out and followed through with.  After the new birth certificate has issued, it is then necessary to ensure that any Australian passport is altered.

Of course if a person has multiple citizenships, it may not be possible to alter a foreign passport, so that under the Australian passport he may be recognised as George but under the foreign passport she is recognised as Martha.

Change of child’s name

There are four ways in which a child’s name may be altered:

(1)       By an order of a Court under the Family Law Act 1975 (Cth);

(2)       By an order of a Court in adoption proceedings under the Adoption Act 2009 (Qld);

(3)       By an order of the Court in surrogacy proceedings under the Surrogacy Act 2010 (Qld);

(4)       Following the procedures under the Births, Deaths and Marriages Registration Act 2003 (Qld).

As to the last procedure, this can be done by both parents by filling out a form.  In the alternative, one may do so if they are the only parent shown on the child’s birth certificate or the other parent is dead or a Magistrates Court approves the change of name: section 17.

The child’s change of name cannot occur if the child is 12 or older unless the Registrar is satisfied that the child consents to the change of name or is unable to understand the meaning and implications of the change of name or the Magistrates Court has approved the change of name: section 18.  Although not stated in the statute, it is clear that if a Court orders the change of name through an adoption, surrogacy or family law process, that that will be sufficient, and the consent of the child is not required.

Change of gender

Section 22 of the Births, Deaths and Marriages Registration Act 2003 (Qld) provides:

      “The reassignment of a person’s sex after sexual reassignment surgery may be noted in the person’s entry in the register of births or adopted children register.”

Following the same sex amendments to the Marriage Act 1961, State Parliament has removed the previous requirement under s.22 that the parties be married.

Reassignment of sex for adults

The process is:

(1)            The appropriate form has to be filled out.

(2)            The form is accompanied either by a recognition certificate or statutory declarations by two doctors verifying that the person the subject of the application has undergone sexual reassignment surgery.

(3)            If the person has former names different from the name that is registered at birth – documents evidencing those names.

(4)            If the person was married, either evidence of the death of the person’s last husband or wife or a document evidencing the dissolution of marriage.

(5)            Prescribed identification documents.

The statutory declaration of each doctor must include the following:

·         The full name and residential address of the doctor.

·         A statement of the doctor is:

o   registered under the Health Practitioner Regulation National Law as a medical practitioner; or

o   a registered medical practitioner of the country in which the doctor is registered;

o   the doctor’s Medicare provider number if applicable;

o   the date the doctor physically examined, or performed the sexual reassignment surgery on, the person who had the sexual reassignment surgery;

o   a statement that the doctor has verified the person’s identity.

Sexual reassignment surgery is defined in the dictionary to the Act as meaning:

      “A surgical procedure involving the alteration of a person’s reproductive organs carried out:

(a)   to help the person to be considered a member of the opposite sex; or

(b)   to correct or eliminate ambiguities about the sex of the person.”

On the reading of the definition it would appear that, in the language of Re Kelvin, this would be stage 3 treatment, not just one or two, i.e. that there was in fact surgery not just hormonal treatment undertaken.  The definition of “surgical” in the Macquarie Dictionary[4] defines it as:

(1)            relating to or involving surgery: a surgical procedure;

(2)            used in surgery: surgical instruments.

The definition of surgery in the Macquarie Dictionary is:

(1)            The art, practice, or work of treating diseases, injuries or deformities by manual operation or instrumental appliances.

(2)            The branch of medicine concerned with such treatment.

(3)            Treatment, operations, etc, performed by a surgeon.

(4)            A room or place for surgical operations.

(5)            The consulting room of a medical practitioner, dentist, or the like.

The concept in my view involved an operation, not merely hormonal treatment.

The Queensland requirements have been criticised (even by the UN Human Rights Committee) for their narrow, proscriptive manner, inconsistent with the lives of trans people and inconsistent with international human rights law.

Reassignment of a child’s sex

This may occur in one of two ways.

(1)   The finding of a Court under the Family Law Act 1975; or

(2)            In accordance with the procedures under the Births, Deaths and Marriages Registration Act.

The latter can be done by both the child’s parents or the child’s guardians.  One of the child’s parents can undertake the procedure under the Act if:

·      The other parent is dead;

·      The other parent’s whereabouts are unknown;

·      The other parent refuses to sign the application;

·      The other parent is, for another justifiable reason, unable to apply; or

·      The Magistrates Court orders the reassignment: section 23(2).

Ending relationships

Whether someone is male, female, trans or intersex makes no difference as to how the relationship ends:

• A de facto relationship typically ends at separation, although there is case law from the Family Court that questions when separation occurs in particular cases.  It is not always clear-cut.  A property settlement or spousal maintenance application in a de facto case must be filed within 2 years of final separation. 
• A marriage is only ended with divorce.  In Australia we maintain no fault divorce.  An application for divorce can only be brought no less than 12 months after final separation.  The time limit for property settlement or spousal maintenance to be pursued in Court is different for married couples as oppose to de facto couples: it is one year from when the divorce order is made.  If the parties have never divorced, then the time limit doesn’t start to run. 

If a couple marry (or form a de facto relationship) and one of them later transitions – and they remain together – their marriage or de facto relationship continues.

Parenting Matters

The Family Law Act applies equally whether someone is straight or LGBTI. 

The next person who will be addressing you today is my colleague and friend of over 30 years Kay Feeney, speaking about the Family Law Act.  I will just touch on the Family Law Act very briefly.  The key section with which you ought to be familiar is section 61C:

“(1)     Each of the parents of a child who is not 18 has parental responsibility for the child.

  (2)      Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents.  It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.

  (3)      Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).”

In other words, if a couple (whether married or not) are the parents of a child and one of them transitions – that person still retains parental responsibility for the child (as does the other parent) notwithstanding that they are transitioning.  That parental responsibility only ends if there is a court order to the contrary.  Subject to that court order, both parents retain parental responsibility. 

The Family Court has set out criteria for the appointment of Independent Children’s Lawyers.[5]  Three of the criteria which appears to be relevant if one of the parties has transitioned or is transitioning are:

·         In cases where there is an apparently intractable conflict between the parents.

·         Whether sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge upon the child’s welfare.

·         Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be antisocial to the extent that it seriously impinges on the child’s welfare.

As to the sexual preferences criteria, the Court said this (remembering that it was a case decided in 1994):

            “Disputes of this kind typically raise claims that a homosexual parent and/or their new partner is unfit by virtue of that factor alone.  It is clear, however, following cases…that the nature of a party’s sexual relationships is relevant to the Court’s proceedings only to the extent that it affects the parenting abilities or the welfare of a child in a particular case…The particular kind of acrimony which arises in such cases, considered together with the Court’s obligation to make a decision from the viewpoint of a child’s best interest, may warrant the appointment of [an Independent Children’s Lawyer].  This is so that the impact, if there is any, of a party or partner’s sexual preference can be properly and dispassionately assessed for its relevance to the Court’s enquiry into the best interest of the child.”

Cases between warring lesbian couples or gay and lesbian parents are now relatively commonplace.  The concern I would suggest that the Court has now is the reaction by the other parent and the children to a parent who is transitioning or who has transitioned.

A recent case from England is illustrative of the point: In the matter of M (Children) [2017] EWFC 4[6].

This was a decision of the English Court of Appeal.

In the words of the Court:

            “The father is transgender and left the family home in June 2015 to live as a transgender person.  She now lives as a woman.  Because she is transgender – and for that reason alone – the father is shunned by the North Manchester Charedi Jewish community (the community), and because she is transgender – and for that reason alone – the children face ostracism by the community if they have direct contact with her.” 

Peter Jackson J characterised the practices within the community as amounting to:

“Unlawful discrimination against and victimisation of the father and the children because of the father’s transgender status”.

Peter Jackson J identified 15 arguments in favour of direct contact which he described as “formidable”.  He could identify only two factors that spoke against direct contact.  Of the first, relating to the father’s “dependability”, he found that “…if it were the only obstacle to direct contact, it could probably be overcome”.  That left only one factor, which he described as “the central question”, namely “the reaction of the community if the children were to have direct contact with the father”.

His Honour found:

            “The children will suffer serious harm if they are deprived of a relationship with their father.”

He decided that there should be no direct contact.  First:

            “Having considered all the evidence, I am driven to the conclusion that there is a real risk, amounting to a probability, that these children and their mother will be rejected by the community if the children were to have face-to-face contact with their father.”

Then:

            “I…reject the bold proposition that seeing the father would be too much for the children.  Children are goodhearted and adaptable and, given sensitive support, I am sure that these children could adapt considerably to the changes in their father.  The truth is that for the children to see their father would be too much for the adults.”

And then this:

            “So, weighing up the profound consequences for the children’s welfare of ordering or not ordering direct contact with their father, I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra-orthodox community is so real, and the consequence is so great, that this one factor, despite its many disadvantages, must prevail over many advances of contact.”

The Appeal Judges said:

            “We suspect that many reading this will find the outcome both surprising and disturbing, thinking to themselves, and we can understand why, how can this be so, how can this be right?”

Their Honours ultimately overturned the decision, referring the matter back for further hearing.

One Rabbi, Rabbi Andrew Oppenheimer, described Charedi communities as:

“warm, close-knit and supportive communities for which the teachings of Torah Judaism guide all aspects of their lives… The teachings of the Torah also highlight integrity, respect for others, peace and justice (including respect for the law of a country) and place the family and its welfare at the heart of life…Allegiance to the lifestyle…means of necessity that members have traditional values and seek to guard their children and themselves against what they regard as the dangers and excesses of modern open society.”

Rabbi Oppenheimer was clear that transgender and procedures to achieve sex change violate a number of basic principles in Torah Law, including the prohibition against castration (Leviticus 22:24) and the prohibition against wearing garments of the opposite sex (Deuteronomy 22:5).

Rabbi Oppenheimer said:

            “Where a person decides to take action likely to be irreversible to transgender, Ultra-orthodox community members will invariably take the view that, by embarking on that course, the transgender person has breached the contract which they entered into when they married their wife to observe the Torah and to establish and bring up a family in accordance with its laws.  Furthermore, members of the community will naturally wish to protect themselves and their families from any discussion of the painful issues involved, especially bearing in mind the show of position in the community from the standpoint of open society.  Knowledge of transgender amongst children in the Ultra-orthodox Jewish community is almost non-existent, for the reasons mentioned above concerning their lack of access to Internet and the media.  There is no known precedent in the UK of a transgender person being accepted living in an Ultra-orthodox community.

            The result will be that community members will expect the family of the transgender person to limit their contact with him or her as far as possible.  If the family of the transgender person nevertheless seeks, or is forced, to maintain contact with that person, they will open themselves up to very serious consequences indeed.  The families around them will effectively ostracise them by not allowing their children to have more than the most limited contact with that family’s children.  The impact on the family in such circumstances in terms of socialisation will be devastating. 

            In considering the best interests of the children, the obvious conclusion from the discussion above is that the children of an Ultra-orthodox union cannot and should not be expected to have any direct contact with the father in such circumstances.  It will no doubt be argued against this approach that it is cruel, lacking tolerance, unnecessary and denies the rights of the father.  But Torah law (halacha) has the same approach to English family law in this type of situation, regarding the issues of residents and contact, that the interests of the children are paramount.  In other words, the father is expected to give precedence to the needs of the children over his own needs.”

In the words of the Court, Rabbi Oppenheimer’s chilling explanation as to why indirect contact would not give rise to a risk of ostracism was:

            “It would not enable the children to have “a living relationship”.”

Peter Jackson J’s response to this was brisk:

            “In balancing the advantages and disadvantages of the children being allowed to see their father, I apply the law of the land.  Some witnesses in these proceedings assert that gay or transgender persons have made a lifestyle choice and must take the consequences.  The law, however, recognises the reality that one’s true sexuality and gender are no more matters of choice than the colour of one’s eyes or skin.

            It has also been said that transgender is a sin.  Sin is not valid legal currency.  The currency of the law is the recognition, protection and balancing out of legal rights and obligations.  In this case, to be recognised and respected as a transgender person is a right, as is the right to follow one’s religion.  Likewise, each individual is under an obligation to respect the rights of others, and above all the rights of the children.”

A Rabbi Ariel Abel had a contrasting position.  He emphasised the central importance of honouring one’s parents within Jewish law and tradition.  He said there is scarcely any circumstance in which the obligation to honour one’s father does not apply.  Even if the father is an outright sinner, which is not in his view a consideration in this case, the obligation persists.  In relation to transgender, Rabbi Abel considered that there is a plurality of opinion and that the biblical position may be qualified.  He contends that there is no valid reason why any person should plead Ultra-orthodox faith as a result to disenfranchise a person on the position of the father:

            “There is no legitimate reason to maintain that children who are transgender – parented cannot experience in the Ultra-orthodox community a full and satisfying orthodox Jewish life, physically, spiritually, emotionally and communally.”

On the contrary, there is every reason to reunite parent and child as it is the wellbeing of the nuclear family and not the social preferences of the wider community that truly matter.  He argued that the transgender issue could not be ignored and that parents’ relationships with their children were inalienable. 

Rabbi Abel objected to the concept of the faith as a club from which people could be ejected, although he observed that this evidently happens.  An approach of this kind, practically amounting to a belief, raises itself to the surface, usually in worse case scenarios.  This is a social cultural reality, not a valid orthodox reason for separating children from parents.  There is a lamentable habit of censoring.  Children of divorced parents can be seated separately from other children and he had experience of this, something he described as beggaring belief.  In his view, this should not be accommodated or excused in Jewish or English law.  On the other hand, he had never heard of table ostracism in practice, provided that the contentious matter was treated privately within the family, and not paraded before the community.  However, he accepted that ostracism for these children could very possibly happen if the situation was not managed correctly with professional help.  What was needed was psychological support: religious teachers should be kept out of it.

The Rabbi accepted that the present circumstances would be a challenge to the insular North Manchester Community.  He argued that when it came to matters of life and death, you have to break free and seek to work with the unfamiliar problem. He gave as an example creative arrangements that might be made to allow the father to participate in A’s bar mitzvah.  There are ways, and it can happen if there is a will.  The issues are significant, but not insurmountable.  The community is not monolithic but multifarious.  It will step back if proper arrangements are made by both parents.  If the situation is unregulated, the community will take the matter into its own hands.  If direct contact was ordered, and the law laid down, he did not think that the community would “go to the wire” fighting an unwinnable battle.

Justice Peter Jackson held:

            “Having considered all the evidence, I am driven to the conclusion that there is a real risk, amounting to a probability, that these children and their mother would be rejected by their community if the children were to have face-to-face contact with their father.  I say “driven” because I began the hearing with a strong disposition to find that a community described by Rabbi Oppenheimer as “warm, close and supportive” and living under a religious law that “highlights integrity, respect for others, justice and peace” could tolerate (albeit without approval) these children’s right to and need for a relationship with their father…I have reached a welcome conclusion that the likelihood of the children and their mother being marginalised or excluding by the Ultra-orthodox community is so real, and the consequence is so great, that this one factor, despite its many disadvantages, must prevail over the many advances of contact.

            I therefore conclude with real regret, knowing the pain that it must cause, that the father’s application for direct contact must be refused.”

The Court of Appeal held:

            “The fact is, as the daily business of the Family Division so vividly demonstrates, that we live today in a world where the family takes many forms and where surrogacy, IVF, same-sex relationships, same-sex marriage and transgenderism, for example, are no longer treated as they were in even the quite recent past.

            What are the characteristics of the reasonable man or woman in contemporary British society?  The answer…is:

                        “If the reasonable man or woman is receptive to change he or she is also broadminded, tolerant, easy-going and slow to condemn.  We live, or strive to live, in a tolerant society increasingly alive to the need to guard against the tyranny which majority opinion may impose on those who, for whatever reason, comprise a small, weak, unpopular or voiceless minority.  The quality under the law, human rights and the protection of minorities, particularly small minorities, have to be more than what Brennan J in the High Court of Australian once memorably described as ‘the incantations of legal rhetoric’.”

                        “…First, we must recognise that equality of opportunity is a fundamental value of our society: equality as between different communities, social groupings and creeds, and equality as between men and women, boys and girls.  Secondly, we foster, encourage and facilitate aspiration: both aspiration is a virtue in itself and, to the extent that it is practicable and reasonable, the child’s own aspirations…Thirdly, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead – what kind of person they want to be – and to give it effect so far as practicable to their aspirations.  Put shortly, our objective must be to maximise the child’s opportunity in every sphere of life as they enter adulthood and the corollary of this, where the decision has been devolved to a ‘judicial parent’, is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child’s ability to make such decisions in the future.”

Domestic Violence

The Bryce Taskforce in its historic report “Not Now Not Ever”[7] noted that the law as to domestic violence applied equally to those in LGBTI relationships as those who are not.

The Taskforce stated:

“The true nature and extent of domestic violence suffered by lesbian, gay, bisexual, transgender, and intersex (LGBTI) members of the community remains largely hidden.  Comparatively little data and research exists on the prevalence of domestic violence experienced by people that identify as LGBTI.  While focus on this issue is growing, both in academia and in policy, there is general acknowledgement that this violence is largely under-reported, under-researched, and under-responded…the limited research that does exist suggests that LGBTI people suffer domestic violence at the same rates or perhaps even higher than those in the broader community…similar to those in the broader community, there are social, political and legal impediments for LGBTI people in seeking assistance when suffering domestic violence.  However, there are a number of unique barriers in the LGBTI community, which are broadly reflective of wider issues of stigmatisation and marginalisation.  In particular, homophobia and discrimination are identified in the research as key barriers for LGBTI victims seeking the assistance they require… A lack of awareness, education and training as to the experiences of those in the LGBTI community meant that generally service providers were not able to provide these clients with the support they required.  While the study indicated that LGBTI clients were eventually able to locate appropriate services, this was generally after negative experiences with providers and substantial searching for one that met their needs.  Examples of negative experiences include men unable to locate necessary services or alternative accommodation, and in some instances transgender clients being referred for sexual reorientation instead of domestic and family support.

The diversity and uniqueness of domestic violence experiences in the LGBTI community, as compared to the broader community, is a clear barrier to these victims receiving the support they require.”

In their book “Speaking Out: Stopping Homophobic and Transphobic Abuse in Queensland”[8], authors Alan Berman and Shirleene Robinson noted the extraordinary abuse that LGBTI Queenslanders had received in the previous 2 years: 50% of male, 54% female, 69% of transgender male to female, 28% transgender female to male and 82% of other.

Abuse that had occurred within the last 2 years by sexuality: 56% lesbian, 49% gay, 48% bisexual and 72% other.

This accords with anecdotal evidence that trans people are amongst the most marginalised in the country and that domestic violence rates for trans people are considerably higher than those within same sex relationships let alone the broader community. 

As the Bryce report says so poignantly:

“In October 2014, Queensland was shocked by the death of transgender woman Mayang Prasetyo, who was murdered, and her body subsequently mutilated, by her male partner.  He later killed himself after being confronted by the police.  This murder remains a devastating reminder of the existence in reality of domestic violence for LGBTI people, and the barriers we face as a community in addressing it.  It is critical that the wider community continues to seek out, hear and respond to the voices and experiences of those in our LGBTI community who experience domestic violence, to ensure their stories are not lost.”

Standards of care for the health of transsexual, transgender and gender non-forming people

Standards of care have been published by the World Professional Association for Transgender Health (WPATH).  WPATH noted that:

            “The expression of gender characteristics, including identities, that are not stereotypically associated with one’s assigned sex at birth is a common and culturally diverse human phenomenon [that] should not be judged as inherently pathological or negative.”

WPATH then says:

            “Unfortunately, there is stigma attached to gender non-conformity in many societies around the world.  Such stigma can lead to prejudice and discrimination, resulting in “minority stress”…Minority stress is unique (additive to general stressors experienced by all people), socially based, and chronic, and may make transsexual, transgender, and gender-non-conforming individuals more vulnerable to developing mental health concerns such as anxiety and depression…In addition to prejudice and discrimination of society at large, stigma can contribute to abuse and neglect in one’s relationships with peers and family members, which in turn can lead to psychological distress.  However, these symptoms are socially induced and are not inherent to being transsexual, transgender, or gender-non-conforming.

            Gender non-conformity is not the same as gender dysphoria 

            Gender non-conformity refers to the extent to which a person’s gender identity, role, expression differs from the cultural norms prescribed for people of a particular sex…Gender dysphoria refers to discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth (and the associated gender role and/or primary and secondary sex characteristics)…Only some gender-non-conformity people experience gender dysphoria at some point in their lives.

            Treatment is available to assist people with such distress to explore their gender identity and find a gender role that is comfortable for them…Treatment is individualised: what helps one person alleviate gender dysphoria might be very different from what helps another person.  This process may or may not involve a change in gender expression or body modifications.  Medical treatment options include, for example, feminization or masculinization of the body through hormone therapy and/or surgery, which are effective in alleviating gender dysphoria and are medically necessary for many people.  Gender identities and expressions are diverse, and hormones and surgery are just two of many options available to assist people with achieving comfort with self and identity. 

            Gender dysphoria can in large part be alleviated through treatment…Hence, while transsexual, transgender, and gender-non conforming people may experience gender dysphoria at some points in their lives, many individuals who receive treatment will find a gender role and expression that is comfortable for them, even if these differ from those associated with their sex assigned at birth, or from prevailing them gender norms and expectations. 

            Diagnosis related to gender dysphoria

            Some people experience gender dysphoria at such a level that the distress meets criteria for a formal diagnosis that might be classified as a mental disorder.  Such a diagnosis is not a licence for stigmatisation or for the deprivation of civil and human rights.  Existing classification systems such as the diagnostic statistic or manual or mental disorders (DSM) (American Psychiatric Association, 2000) and the International Classification of Diseases (ICD) (World Health Organization, 2007) define hundreds of mental disorders that vary in onset, duration, pathogenesis, functional disability, and treatability.  All of these symptoms attempt to classify clusters of symptoms and conditions, not the individuals themselves.  A disorder is the description of something with which a person might struggle, but not a description of the person or the person’s identity.

            Thus, transsexual, transgender, and gender-non confirming individuals are not inherently disordered.  Rather, the distress of gender dysphoria, when present, is the concern that might be diagnosable and for which various treatment options are available.  The existence of a diagnosis for such dysphoria often facilitates access to healthcare and can guide further research into effective treatments.

            Research is leading to new diagnostic nomenclatures, and terms are changing in both the DSM…and the ICD.  For this reason, familiar terms are employed in the standards of care and definitions are provided for terms that may be emerging.  Health professionals should refer to the most current diagnostic criteria and appropriate codes to apply in their practice areas.

            The standards of care note that for individuals seeking care for gender dysphoria the variety of therapeutic options include:

·         changes in gender expression and role (which may involve living part-time or full-time in another gender role, consistent with one’s gender identity);

·         hormone therapy to feminize or masculinize the body;

·         surgery to change primary and/or secondary sex characteristics (e.g. breasts/chest, external and/or internal genitalia, facial features, body contouring);

·         psychotherapy (individual, couple, family, or group) for the purposes such as exploring gender identity, role, and expression;

·         addressing the negative impact of gender dysphoria and stigma on mental health;

·         alleviating internalised transphobia;

·         enhancing social and peer support;

·         improving body image; or

·         promoting resilience.

Other options that have been proposed are:

·         in person and online peer support resources, groups, community organisations [such as in Queensland the Australian Transgender Support Association Queensland: ATSAQ] that provide avenues for social support and advocacy;

·         in-person and online support resources for families and friends;

·         voice and communication therapy to help individuals to help verbal and non-verbal communication skills that facilitate comfort with their gender identity;

·         hair removal through electrolysis, laser treatment, or waxing;

·         breast binding or padding, genital tucking or penile prostheses, padding of hips or buttocks;

·         changes in name and gender marker on identity documents.

The standards of care note that gender dysphoria during childhood does not inevitably continue into adulthood.  Rather in follow up studies of pubertal children (mainly boys) who were referred to clinics for assessment of gender dysphoria, the dysphoria assisted into adulthood for only 6% to 23% of children. Boys in these studies were more likely to identify as gay in adulthood than as transgender.  Newer studies, also including girls, show they had 12% to 27% persistence rate of gender dysphoria into adulthood.

In contrast, the persistence of gender dysphoria into adulthood appears to be much higher for adolescence.  No formal prospective studies exist.  However, in a follow-up study of 70 adolescence who are diagnosed with gender dysphoria and given puberty supressing hormones, all continued to actual sex reassignment, beginning with feminizing/masculinizing hormone therapy.

It would appear in clinically referred, gender dysphoric children under 12, the male female ratio ranges from 6 to under 3 to 1 but in those clinically referred, gender dysphoric adolescence older than 12, the female ratio is close to 1 to 1.”

I would urge you to read the standards of care which can be found here:

https://www.wpath.org/media/cms/Documents/SOC%20v7/Standards%20of%20Care_V7%20Full%20Book_English.pdf

Intersex children

Whilst transgender advocates were long critical of the Family Court for being over involved in being insistent on authorising any significant relevant medical treatment for transgender children, intersex advocates have been critical of the Family Court for taking a hands-off approach to medical procedures undertaken for intersex children.

The case that is highlighted is Re Carla (Medical Procedure) [2016] FamCA 7, a decision of the Family Court in Brisbane.  Carla was 5 and about to start school.  She identified as a young girl, although she was born genetically male.  Carla was born with a sexual development disorder described in the judgment as 17 beta hydroxysteroid dehydrogenase 3 deficiency.  In short, in the words of the judge, Carla had minimum in utero exposure to androgens and because such exposure is required for the development of the male internal and external genitalia, it meant that at birth, Carla was markedly undervirilized for a genetic male.  Further, although she had no female reproductive organs, Carla was born with the external appearance of a female child, but with male gonads not contained within a scrotum. 

The parents after obtaining expect medical advice and support, determined to rear Carla as a female and to review that decision in close consultation with the doctors as Carla grew.  Surgery already performed on Carla had enhanced the appearance of her female genitalia.

The parents sought court approval for a procedure involving the bilateral removal of Carla’s male gonads and such further or other necessary and consequential procedures to give effect to that treatment as may be recommended by Carla’s treating medical practitioners.

The court made orders in the terms sought by the parents.  The court found that court sanction was not actually required for parental authorisation of proposed medical treatment, including the gonadectomy, to be administered to the child. 

The criticism that intersex advocates make is that the court should have prevented the treatment from occurring so that the child as he or she grew up was able to identify who he or she actually was and that the gonadectomy may have pre-empted matters and in fact may have led to a tragedy for that particular individual.  In essence, as I understand the criticism, doctors are not always right.  If the evidence from the WPATH standards of care is in any way correct or could be seemed to be translated to intersex individuals, there may be a proportion of intersex children who are operated on to determine their gender when the operation should not have occurred.  You may well be dealing with those children in the future.

The Australian Psychological Society has published an information sheet about children born with intersex variations, which can be found here:

https://www.psychology.org.au/getmedia/2d12b9c7-4a99-4c0b-9ee2-7079c6be3ba8/Children_born_with_intersex_variations.pdf

And finally…

I have no doubt that bullying of transgender students remains rife consistent with the comments by Alex Ladd, as seen in the judgment of Brosnahan v. Ronoff and consistent with the research of Berman and Robinson. 

Schools have a duty of care to their students.  If schools fail to take reasonable steps to prevent bullying of their students (from whatever cause) they and whichever officers of the school (whether a counsellor or a teacher) fail by breaching that duty, be liable to substantial damages in negligence.

Schools should take all reasonable actions necessary to ensure that they are not on the wrong end of such a claim – primarily by stamping out bullying (including by cyber bullying) and when complaints of bullying are made, investigating and acting on them thoroughly.

To do otherwise is failing the very people that parents and society puts those schools in the charge of, namely vulnerable children and young people. 

Stephen Page

Page Provan

family and fertility lawyers

5 November 2019

www.pageprovan.com.au

stephen@pageprovan.com.au

www.facebook.com/Stephen.Page.Lawyer.Brisbane  

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[1] Stephen Page is a director of Page Provan, Brisbane. Stephen was admitted as a solicitor in 1987 and has been a Queensland Law Society family law accredited specialist since 1996. He has spoken extensively about family law, domestic violence and surrogacy issues at local, national and international conferences. Stephen is a Fellow of the International Academy of Family Lawyers (including being a member of its Surrogacy/Parentage Project and LGBT Committees) and of the Academy of Adoption and Assisted Reproduction Attorneys, and is an international representative on the ART Committee of the American Bar Association. Stephen is the founder of the LGBT Family Law Institute in Australia. He is a member of the Equity and Diversity Committee of the Queensland Law Society. Stephen has recently been a panellist about transgender legal issues at the International Bar Association conference in Seoul. Stephen lectures in Ethics and Law in Reproductive Medicine at the University of New South Wales.

[2] NSW Registrar of Births, Deaths and Marriages v. Norrie [2014] HCA 11.

[3] http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2017/258.html

[4] Concise Dictionary Third Edition.

[5] Re K (1984) FLC 92-461.

[6] https://www.judiciary.gov.uk/wp-content/uploads/2017/12/in-the-matter-of-m-20171220.pdf

[7] https://www.communities.qld.gov.au/resources/gateway/campaigns/end-violence/about/special-taskforce/dfv-report-vol-one.pdf – Viewed on 30 January 2018.

[8] (2010) Australian Academic Press