28 March 2011

Naming and claiming

With the ACT Law Reform Advisory Committee inquiry into legal recognition of transgender and intersex people underway it is interesting to see plans by 'Still Fierce and Allied Organisations' for what is described as the "first ever ISGD rally" in Canberra on 11 May. Naming has consequences in law and as a basis of political activism.

The ISGD rally encompasses "Intersex, Sex &/or Gender Diverse" people - a group that overlaps with the more traditional LGBTQI denomination - and is apparently under the auspices of Sex & Gender Education Australia, the Australian Health & Education Centre, the Australian Federal Greens Party, the Australian Socialists Alliance, the Femme Guild Sydney, the Scarlet Alliance and Equal Love Canberra.

The organisers -
call upon intersex, sex and/or gender diverse (ISGD) people and their families and allies to rally outside Federal Parliament on May 11th, 2011 to highlight the need for the Australian government to address the inequalities in law and human rights suffered by these groups of people.
Still Fierce - "a community-based collective that aims to promote the interests of the ISGD community, and create an inclusive space for ISGD folk to meet, network, socialise and engage in ISGD activism and education" - indicates that ISGD includes -
people who may be who may be intersex, transexed, transsexual, transgender, genderqueer, androgynous, without sex and/or gender identity, and people with sex and gender culturally specific differences.
The collective calls on the federal and state governments to "implement the recommendations of the 2009 Australian Human Rights Commission's Sex Files Report, review inequalities in the law for ISGD people and to outlaw unethical medical practices forced on intersex children".

It demands "Equal rights for ISGD People", through an ambitious agenda, in particular -
1 Implementation of the following AHRC Sex Files (2009) recommendations -
R1: Marital status should not be a relevant consideration as to whether or not a person can request a change in legal sex.

R2: the definition of sex affirmation treatment should be broadened so that surgery is not the only criteria for a change in legal sex.

R3: evidentiary requirements for legal recognition of sex should be relaxed by reducing the quantity of medical evidence required and making greater allowance for people to self-identify their sex.

R4: The special needs of children and young people who wish to amend their documents and records should be considered.

R5: A person over the age of 18 years should be able to choose to have an unspecified sex noted on documents and records.

R6: Information on the process and criteria for the legal recognition of sex should be easily accessible and user-friendly.

R7: Documents of identity and processes required for the legal recognition of sex should not reveal personal information about a person’s past identity in relation to sex.

R8: Laws and processes for the legal recognition of sex should use empowering terminology.

R9: Where possible, sex or gender should be removed from government forms and documents.

R10: The federal government should consider development of national guidelines concerning collection of sex and gender information from individuals.

R11: The federal government should take a leadership role in ensuring a nationally consistent approach to the legal recognition of sex in accordance with the recommendations of the AHRC. We as ISGD people do not want a national board that acts to police people’s sex and/or gender. The states and governments work cooperatively with state and territory governments through the Council of Australian Governments (COAG) process to amend their respective legislation and policies in line with the AHRC recommendations, particularly in relation to birth certificates or identity documents.

R12: The federal government should consider establishing a national office to advise and assist the public and federal government in relation to changing legal recognition of sex, as an alternative or precursor to the national board put forward in Recommendation 11. in the AHRC report,

R13: In the event that Recommendation 11 fails to result in sufficient support from state and territory governments, the federal government should consider legislation to: amend the Sex Discrimination Act 1984 to ensure that the protection against marital status discrimination applies in the context of married persons seeking to amend their birth certificates, to effectively override existing discrimination under state and territory births registration legislation or establish a minimum national standard in respect of legal recognition of sex in documents and government records in line with the AHRC recommendations.

R14: The federal government should harmonise policies, procedures and legislation relevant to the legal recognition of sex in federal documents and records.

R15: The federal government should take immediate steps to ensure that all federal government departments and agencies provide clear and accessible information relevant to legal recognition of sex in documents and records and how those documents and records can be amended, such as by including a page on the department or agency’s website dedicated to this topic.
2 Legal protection against enforced medical treatment of ISGD children - Prohibition of enforced non consensual surgery, hormones or other treatments on ISGD children who are not in a life-threatening situation until they are old enough to give informed consent, in other words cognitively aware, not age specific. This must also include psychiatric or psychological treatment.

3 Federal antidiscrimination laws protecting all ISGD people - Requirement for a future Bill covering anti-discrimination law protecting intersex, sex and/or gender diverse people ...
1. Such a Bill must protect all Australians not just special interest groups.

2. The Bill must include protection against discrimination on the grounds of being intersex, sex and/or gender diverse.

3. Protection must be extended to the workplace.

4. Protection must be extended to all public places without exception.

5. Only private dwellings should be exempt and anytime the public is invited in they are no longer deemed private.

6. The Bill needs to state that some people are physiologically intersex and intersex is determined by a persons’ personal physical experience. Some people have sex diverse features that they are other than stereotypically male or female although they may not have a medical diagnosis of intersex. Neither should be hierarchical.

7. The Bill needs to recognise that gender diverse presentation is a normal part of a multi-faceted healthy culture.

8. People need to be able to bring complaints for sex and/or gender discrimination.

9. The present system at the AHRC is little more than window dressing when Attorneys General refuse to attend conciliation and the AHRC exempts itself from its own guidelines. Any future system needs to compel government departments to attend conciliation; since Australian governments are presently by far the greatest discriminators against ISGD people and anything less would be a farce.

10. Complainants need to be able to bring cases against private individuals, hospitals, medics, corporate bodies, educational institutions, clubs, and government departments. In short, the whole of society.

11. Applicants need the ability to bring cases without the burden of costs should they lose otherwise it just becomes a rich mans' law.

12. Cases for discrimination on the grounds of being intersex sex and/or gender should not be confused with sexuality.

13. The laws should not get into a redundant class system of labels of who is included under the Act because all Australians need to be protected from such discrimination.

14. Such a complaint involving violence should be treated as a hate crime.

15. For a person suffering discrimination as a child, their guardian needs to be able to bring a case on their behalf.

16. Adults need to have the ability to bring cases for the mistreatment they suffered as children including forced medical treatment administered against their interests and without their permission. The second arm of this clause also needs to be that adults can bring cases for medical treatment denied them as children including hormones and surgery for transitioning children. Children also need to able to have a court-appointed guardian to help them access treatment when it is refused, including emancipation from their families.

17. Any appeals process needs to be presided over partly by members of the public. The present system is incestuous between government departments.

18. The applicant needs to have people from special interest groups on such an appeal panel who have a common understanding of the issues involved.

19. The present situation in Australia that allows butchering of intersex children, labelled as necessary surgery, singles intersex out as category needing positive discrimination measures.

20. We suggest that the AHRC and attorney generals FAG follows the thinking of the Sex Files Report and use the phrase sex and/or gender diverse (SGD) people, plus the word intersex (ISGD). In total this would be protection against discrimination on the grounds of being Intersex, Sex and/or Gender Diverse.

21. Government-funded educational institutions need to be compelled to teach about the whole spectrum of human sex and/or gender diverse identities.
4 Full Medicare funding for medical and psychological procedures needed by any ISGD people - Presently pregnancy, menopause, andropause and reproductive technology, are all fully funded by the Medicare system but establishment and maintenance of sex and/or of gender identity is not which is sex discrimination. All Medicare items need to patient specific not sex specific. All ISGD people should have the right to claim needed treatments as fully funded Medicare items on a parallel means tested basis as with pregnancy, menopause, andropause and reproductive technology.

5 Full Marriage rights for ISGD People - Legal marriage needs to be between consenting adults regardless of their sex and/or gender

6 Enshrinement of the right to establish sex and/or gender identity in federal law - Federal protection needs to be in place to protect the right to legally establish a sex/or gender identity other than on the original birth certificate for all ISGD people.