The right for individuals to gain recognition and respect for their gender identity remains uncertain despite a recent court ruling. On 14th August 2009 the State Administrative Tribunal (SAT) decided that two transsexual men would not have to undergo hysterectomies in order to obtain a recognition certificate for gender reassignment. WA Attorney- General Christian Porter is appealing the decision saying, ‘…this decision has said…that a person can be legally male and yet potentially bear children.’
Whilst the SAT ruling clarifies the current provision in the Act it also highlights the need for changes as set out in the review of Equal Opportunity Act in 2007. The WA Equal Opportunity Commission proposed that ‘it should not be a requirement that a person demonstrate that they have a gender reassignment certificate in order to demonstrate their gender identity.’
The recent Australian Human Rights Commission’s (AHRC) concluding paper: The sex and gender diversity project also reflects this. Recommendation 2 of the report states, ‘The definition of sex affirmation treatment should be broadened so that surgery is not the only criteria for a change in legal sex.’
Both men have undergone lifelong challenges to assume their identity ranging from testosterone treatment to bilateral mastectomies. They described to the tribunal the invasiveness and complications of surgeries already undertaken. Additionally, evidence was provided outlining potential limitations a hysterectomy might incur if phalloplasty was to become a feasible option in the future. Due to these factors both men decided against hysterectomies.
Mr. Porter’s concerns relate to the future possibility of the men to stop testosterone treatment and bear children. One of the men stated, ‘That proposition fails to understand the importance of the therapy to [my] health and wellbeing and ongoing existence as a human being; [I] could stop but will not.’ The Tribunal accepted the men’s evidence without reservation.
Having an official record which signifies your identity is taken for granted by most of society. As one blog participant stated in The sex and gender diversity project, ‘Having documents that reflect one’s sense of identity is important for employment, access to healthcare and medicines and also for self affirmation and acceptance by the government that – yes – this is who you really are.’
Experiences of discrimination within the GLBTI community are highly prevalent and as the AHRC’s paper shows a contributing factor is identification records. Graeme Innes, the Australian Human Rights Commissioner, explains ‘while some people who are gender diverse take steps to rectify or come to terms with this…they potentially face the humiliation…of having to argue for their sex or gender…when asked for identification by various official documents.’
The WA Equal Opportunity Commission receives complaints of discrimination from the GLBT community. In 2008-2009 there were 46 enquiries and 11 complaints regarding sexual orientation, gender history and gender identity. It is unlawful to discriminate against a person because of their sexual history, sexual orientation, or the sexual orientation of a relative or friend.
The Equal Opportunity Commission has an enquiry line 08 9216 3900 or you can download a complaint form from their website www.eoc.wa.gov.au.
Monica Kane
Equal Opportunity Commission
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