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.