Monday, 26 May 2008

Transsexual, Transgender, Transvestite

I am not a lawyer. But...

It seems it's the fashion these days for unqualified people to give their opinions in newspapers, while those who know anything about the issues need not to be consulted. Case in point this story from News.com.
Medical ethicist Dr Nicholas Tonti-Filippini said the decision was astounding.

"I fail to see how it can be in the interests of a young girl to undergo treatment that will change her for the rest of her life," he said.

"Twelve is a time of great uncertainty for a young person . . . I would question whether the medical evidence supports treating (her) in this way."
What the journalists carefully concealed is
...Associate Professor Tonti-Filippini is the Institute Associate Dean (Teaching, Learning and Research)
Which institute? The John Paul II Institute for Marriage and Family. From their website:
He is the subject co-ordinator for:

* JP502 – Philosophical Foundations of Bioethics
* JP540 – Foundations of Christian Moral Life
* JP543 – Theological Bioethics
* JP544 – Beginning of Life Ethics
* JP545 – End of Life Ethics
* JP546 – Current Controversies in Bioethics
* JP547 – Theology and Practice of Natural Family Planning
* JP564 – Educating in Sexuality, Marriage, Family and Life
Concealing his strong and fervent religious affiliation could reasonably be said to be "lying by omission".

While Dr Tonti-Fillipini no doubt knows a great deal about "the Unresponsive State and Comercialization of Human Tissue", there is no evidence that Dr Tonti-Fillipini has had any training, formal or informal, on gender dysphoria, effects of gonadotrophins, or has ever seen a single patient presenting with Gender Identity Disorder. Moreover, he is compelled by his Faith to follow the official Vatican line, regardless of the Science.

Moving right along... another medical practitioner was consulted.
Australian Childhood Foundation chief executive Dr Joe Tucci, a psychologist, said the issue was complex.

"But I would have thought that waiting until the child is older is a more prudent course of action," he said. "Kids can change their minds. Things that seem set in stone when they are 12 will seem very different when they are 18 or 19."
Quite true... which is why the court decision was to allow puberty to be delayed, so the child would be older before having to make irreversible and significant decisions that would affect their whole life. So why did Dr Tucci not realise this? Isn't he an expert on the endocrinology involved? Sadly, not as such... From his bio:
A registered psychologist and social worker, Dr Tucci is an accomplished practitioner-researcher with 15 years experience in child protection and working therapeutically with children and families. He is a Clinical Member of the Victorian Association of Family Therapists and a member of the Australian Association of Social Workers (AASW).
...
Dr Tucci has presented at national and international conferences on family therapy and child abuse, and his writing has been published in both Australian and international academic journals and the broader media.
From all accounts, he has extensive knowledge of dealing with the terrible consequences of child abuse. But as for Gender Identity Disorder, Neurology of the BSTc layer of the Hypothalamus and Limbic Nucleus... not so much. He may well never have seen a patient presenting with Gender Dysphoria, and certainly hasn't got a record of treating dozens or hundreds of them. He is exactly as qualified to comment as a neurosurgeon is to comment about dentistry.

Media Watch, please note.

So, taking these as precedents, I'm going to comment on a court case.

Stuck Between a Frock and a Card Place Nyuk Yuk Yuk! Oh well, could be worse. I'm an inveterate punster myself, and this at least shows some wit.

The issue at hand: what is "transgender"?

The relevant legislation is the NSW Anti Discrimination Act 1977, as amended.
38A Interpretation

A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:

(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or

(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.
Oh yes, and
"recognised transgender person" means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction.
Basically, a "registered transgender person" is a post-operative transsexual that has managed to get their Australian birth certificate in order. Transgender includes RTPs, but does not just include RTPs. Pre-operative transsexuals would be included, for example, as would severely Intersexed people living in one gender role, and post-operative transsexuals born outside Australia, so with no Australian birth certificate. It would include me too, though whether under section (a) or section (c) is arguable. I'd go with (c) myself.

Getting back to the case at hand...
"We were going into the main gaming room and a guard placed his hand on my shoulder and said: 'you are known here as a man, you are not appropriately dressed, I have to ask you to leave,"' Mr Hurst said. The pair were then escorted from the casino.

The conference in the tribunal's Equal Opportunity Division was called after Mr Hurst, of Coogee, who told Ms Hennessy that "I have always regarded myself as a woman and lived my life as a woman," filed an action alleging the casino has discriminated against him because of his sexual gender and was refused service and asked to leave.
...
After hearing that Mr Hurst wanted the matter to go to hearing, Ms Hennessy granted an order to obtain a copy of the casino's security video of the incident.

She also told Mr Hurst that under the Anti-Discrimination Act the tribunal can only hear transgender cases.

"The Anti-Discrimination Act does not protect transvestites, it protects transsexuals, but you said you live as a woman," Ms Hennessy said. "Before the tribunal can hear the case what you have to be able to prove to the court is that sexually you are a transsexual.
Neither of the words "transsexual" and "transvestite" appear anywhere in the legislation, so we have to determine to what extent Ms Hennessy is correct. What is a Transsexual? A Transgendered person? A Transvestite?

Given the print media's propensity to get gender pronouns wrong, to disregard style guides, to omit crucial information (see above) and generally get things hopelessly wrong, I give little weight to such statements as
Paul Hurst lives much of his life as a woman.... For years the transvestite has been known to friends and those who have seen him perform in Darlinghurst clubs as Anne-Maree.... he and a friend again frocked up...Mr Hurst
In order to prove the claim, Paul Hurst would have to prove that "his" life situation met the conditions of "transgender" given above. And contrary to Ms Hennessy's expressed opinion, this has nothing to do with sexuality. Then again, neither does Transsexuality, that's about changing body to match mind.

By "his" testimony, Paul Hurst both identifies as a member of the opposite sex, and lives as a member of the opposite sex. This would be enough to be considered Transgendered by 38A(a). However, mere testimony is not adequate to meet the burden of proof. "He" has not changed "his" name for example, by deed poll. And while some women may sometimes dress as men, say as a condition of attending a parents' funeral, or as a condition of being granted visitation rights to their children, such transvestitism is unusual. If Paul Hurst really identifies as a woman, then habitually wearing male clothing would be seen by "him" as habitually wearing drag. Some women do, but it's not exactly usual, and is strong (but not conclusive) evidence against a female identity.

The casino has the following defences open.

First, that Paul Hurst is not transgendered within the meaning of the act, as "he" does not live as a member of the opposite sex, merely playing at it sometimes, and discarding the role whenever "he" wants to. Now the act does not say that "living as a member of the opposite sex" has to be a permanent arrangement, that a transgendered person has to do that all the time. It is open to the Tribunal to find that as long as the person lives as the opposite sex sometimes, that is enough. That would not include Transvestite fetishists who only dress in private, and don't take on a opposite-sex role, but would include Drag Queens and "part-time" crossdressers who habitually (but not permanently) present as the opposite sex in public. I don't find that a particularly convincing argument though. The intent of Parliament seems quite the contrary. Still, Judges could reasonably rule otherwise.

The second defence is that even if Paul Hurst is transgendered, that the club did not discriminate on the basis that "he" was transgendered, but on the basis that "he" was not: that they had a belief that "he" was a man dressed inappropriately, not a transgendered woman. On the basis of what was said, I think this is proven, barring evidence against it.

However in order for this defence to succeed, they would also have to demonstrate that this belief was reasonable. One cannot justify, say, shooting Methodists simply because of a belief that all Methodists are axe-murderers and that it's self-defence, unless Methodists have a universal history of axe murder. A belief that Paul Hurst was not transgendered would be reasonable had "he" patronised the club as a male, or was known in the area as a male. Sexuality is irrelevant. Lesbians exist.

If it were me, then on the facts before me...

I would rule that Paul Hurst was not transgendered. That "his" appearance in costume was similar to a case of a professional clown appearing at the club in costume, and presenting with the attributes of his professional persona. The club had as much right to refuse "him" service as they would to say, Ronald McDonald or Constable Kenny Koala.

As an alternative, I would say that the casino was not acting unreasonably in the belief that Paul Hurst was not Transgendered, however mistaken that belief might be. That the discrimination was not because they believed "him" to be transgendered, but that they believed "he" wasn't.

I would then state Obiter, as a comment, that discriminating against transvestites goes against the grain for me. And that when no offence to propriety is intended or demonstrated, when it's just like Ronald McDonald attending in costume, the casino's policy, while legally permitted, is just a little bit silly, and shows a complete lack of sense of humour. That to use Australian vernacular, they're up themselves.

13 comments:

Legal Eagle said...

I have written a post on the case of the 12 year old "girl".

I don't know who appointed Dr Tonti-Filippini as a "ethicist", and why he feels he is any more qualified to tell people what to think than anybody else. I'm sure he has never met anyone who has been confused about what their true gender is.

Anonymous said...

Zoe, do you have any insights into why the NSW law was written this way?

Eg, using "transgender" to mean what neither Charles Virginia Prince - the word's coiner, nor Leslie Feinberg - the word's extender-of-meaning, mean it to mean?

It seems all rather bizarre to me, but what do I know?

E said...

The NSW law: drugs are bad, mkay.

I don't know that formal qualifications are critically important, but making an effort to learn about something about which one is about to comment certainly is. Dr Filipini has clearly made no effort whatsoever to educate himself and that is worrying.

E.

Anonymous said...

Wonder what drugs the writers of the NSW law were on? Particularly good ones, no doubt.

A little knowledge about what they were writing a law on would have been a good idea too IMHO.

As for other ignoramuses, what a pity Dr Filipini is so widely quoted in the media!

Anonymous said...

On a similar theme... I have received a letter, on Hon Stephen Smith's Ministerial letterhead and signed by him, that ignores altogether the Grace Abrams AATA decision against DFAT.

Instead, it states "The Department will consider issuing a travel document in their reassigned gender in a limited number of compassionate circumstances, including where the applicant's circumstances prevent that person from obtaining an amended cardinal document (e.g. where the applicant is married).

Nothing to do with the AATA then, and everything to do with whether the DFAT feels compassionate that day or not. In a limited way.

The office of the solicitor who represented Grace Abrams has been notified, will be sent a copy, and will write to the Minister soon.

Zoe Brain said...

I suggest an amendment:

The Department will consider issuing a travel document in their reassigned gender in a limited number of compassionate circumstances, including where the applicant's circumstances prevent that person from obtaining an amended cardinal document (e.g. where the applicant is married)
...but we'll have to be dragged kicking and screaming into court for us to do that.
The Department will also consider not issuing a travel document in the reassigned gender even if the applicant has obtained an amended cardinal document, in an act of complete bastardry - and will then only issue one when faced with legal action. We've done it before. That's what we'd really like to do, and we and you both know it.

I didn't take legal action in my own case on the basis that there had been a change of culture. This letter shows that I was mistaken, and I still haven't received a written apology.

Know any good lawyers?

Zoe Brain said...

As regards the NSW law... I don't think it's that bad.

Clause (a) covers people who have transitioned, and also those who are in the process of transitioning, even if it's only the initial stages. It applies even if the documentation isn't consistent, whether birth certificates, immigration records etc are changed or not. No distinction is made between permanent cross-dressers, and non-op and pre-op transsexuals. Yes, there is a difference, but I can think of no easy legal or even medical test for that. And besides which, permanent crossdressers face exactly the same persecution.

Clause (b) applies to those who have de-transitioned, permanently or temporarily. It arguably applies to those who should transition, but haven't : and are thus living as their birth assigned gender, rather than their actual gender. I don't think that's the intent though. Lacking a clear legal definition of "male" and "female", there can't be a clear legal definition of "opposite sex". In this context, it has to be read as meaning "opposite to assigned sex at birth".

Clause (c) applies to the Intersexed - and borderline cases like mine, where the line between TS with IS complications, and IS with TS complications is blurred.

And the last bit is about perception - women who have PCOS can often be mistaken for transwomen, for example, and discriminated against on that basis.

Anonymous said...

Zoe, you were very much mistaken, as has been everyone who believed that the Grace Abrams AATA decision would mean any kind of positive change in the DFAT's culture and processes.

Anyone who might have believed that the new federal government, and especially DFAT's new minister, Stephen Smith, might have come into office with a positive attitude to all this has also been mistaken.

At DFAT and in the Minister's office it is business-as-usual, as it was BEFORE the AATA decision.

Time to set the lawyers on them, especially those excellent people at ICLC in Sydney who have helped Grace and me too. But this thing has gone way beyond just a regular legal case now. It almost has the dimensions of a class action.

Anonymous said...

Costume? Professional clown? Zoe I'm dissapointed in you.

Clearly a professional clown etc wear a uniform, they don't do things like "I have been going to the casino in drag on and off at least three to four times a week for the past 10 years," in their costumes/uniforms. They don't 'live as' clowns or koalas. Just work as them.

If this person doesn't meet the legal definition of transgender in this state that hardly means they fit into the clown costume analogy, just that they fit into an unprotected class of transgender that isn't legally recognised.

Little wonder so many crossdressers/transvestites stay closeted when there is so much fear of discrimination and violence and clearly a lack of legal protection against discrimination even for a well known crossdressing regular going to attend a drag themed bar!

And people wonder why I'm only 'out' in a cautious and slolwy expnading yet limited capacity in my rural community, I've washed enough spit out of my hair and suffered enough punches to the face for one lifetime so I'm rather cautious about risking any more.

And as I'm not full-time etc it seems it's perfectly legal to discriminate against me if I were to change that.

Oh, and doesn't your 'perception' argument justify a legal discrimination against legally transgendered persons on the basis that it's reasonable to suspect or assume that they are not?

Battybattybats.

Zoe Brain said...

Hi BBB!
Good to have you commenting here. I've been most impressed with the quality of your thought and comments at other places, notably Bilerico.

For the purposes of the law, the statement
I have been going to the casino in drag on and off at least three to four times a week for the past 10 years,
is most germane. "on and off" being the significant phrase.

From my reading of the Act, this isn't good enough to qualify as transgender by the definition in the Act, absent evidence that the person concerned intends to go "full time", and has taken steps to that effect.

Just as important is another phrase from the article,
those who have seen him perform in Darlinghurst clubs as Anne-Maree.

From that view, this is a professional entertainment avatar, for want of a better term. Hence the clown analogy, entertainers who also have a professional avatar or persona distinct from their day-to-day appearance.

On the other hand... this goes beyond that. Clowns do not, as a general rule, appear in clown costume at Casinos and Clubs except when entertaining. It's not clear-cut.

I've washed enough spit out of my hair and suffered enough punches to the face for one lifetime
Those are matters of criminal assault, not discrimination in providing services, and in theory, you should already be protected from that. But we all know that police in rural areas are more likely to lock you up, rather than the thugs that assault you. For "disturbing the peace" or the like.

This transphobic "turning of the blind eye" must cease. And it is transphobia, even if for the purposes of this particular act, you're not transgendered.

From the legal viewpoint, no, you are not protected from being refused service as a "transgendered person", as you're not one by their definition.

I do not say that the definition is "right", just that that's what it is.

Furthermore, I don't say that the law is just in any way. It offends my sense of justice that you or anyone else should not be protected in the circumstances outlined in the article. But that's the law. What say you we try to get it changed?

Oh, and doesn't your 'perception' argument justify a legal discrimination against legally transgendered persons on the basis that it's reasonable to suspect or assume that they are not?

Absolutely. The discrimination must be because they are transgendered, not because you didn't think they were. For example, a CD/TV club could reasonably exclude a totally passable TS woman on the grounds that they genuinely thought she was 46xx, without that being "discrimination on the grounds of her being transgendered".

Anonymous said...

Hi Zoe,
Thanks for the compliments!
I always keep an eye out for your contributions to discussions when and whereever I run into them. They never fail to add much to the discussion. Your surname is well deserved!

"For the purposes of the law, the statement
I have been going to the casino in drag on and off at least three to four times a week for the past 10 years,
is most germane. "on and off" being the significant phrase."

This depends on interpretation of the sentance. Did the on and off refer to going to the casino in drag and in drab (d.r.a.g. dressed as girl, d.r.a.b. dressed as boy for those not up on the jargon) or did it refer to the regularity of the visits, meaning that the pattern of attendance despite fitting those averages was irregular?

"this isn't good enough to qualify as transgender by the definition in the Act, absent evidence that the person concerned intends to go "full time", and has taken steps to that effect."

The act includes "has identified" past tense very specificly, at this site: http://www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/pages/adb_transgender#who
it interprets that wording as meaning "you have lived as a member of your preferred gender in the past" in which case wouldn't someone vascilating, changing their mind etc not still be covered so long as they have, at some time, been full time?

"Those are matters of criminal assault, not discrimination in providing services, and in theory, you should already be protected from that"

Yep, and they may have been just for being a quiet intelligent weird and sensitive teen in a redneck sport-loving town (I'm not really sure how feminine I was externally back then so I can't rule that in or out as a factor) but risking being legally discriminated against, perhaps charged for being inaopropriatly dressed in public and the subsequent stigma not to mention the community-wide outing of that will function as a substantial deterrant for many and a good reason for me to be cautious. Being disabled and reliant on public transport I'm awefully glad being goth isn't as controvertial now as it was when I was fit and able to defend myself.

"But that's the law. What say you we try to get it changed?"

Absolutely!
The next question is, what's the most effective way to do so?

A fully inclusive law that would protect everyone would probably need to include wording like 'gender identity and gender expression and perceived gender identity and perceived gender expression expression'. That would seem to cover everyone including discrimination based on missperception.

Battybattybats

Zoe Brain said...

The most effective way to do it? Well, you'll have to be quick, as the deadline for submissions is the 30th.

Go to the Sex and gender diversity
Issues paper
by the Human Rights and Equal Opportunities Commission.

Please send us your response by 30 May 2008.

Responses can be sent by:

* email to sarah.winter@humanrights.gov.au or
* post to Sex and Gender Diversity Project, HREOC at GPO Box 5218, Sydney NSW 2001.

Go to it. A simple 1 page statement of what your situation is, what you experience in daily life, and what you'd like done about it, would suffice.

Hugs, Zoe

Anonymous said...

Thanks!

Had to write it awefully hastilly but that will make it directly honest and heartfelt at least.

Battybattybats