Questioning Transphobia

Media Release: CONSORTIUM OF TRANSGENDER & INTERSEX ORGANISATIONS WELCOME HISTORIC HIGH COURT DECISION IN AUSTRALIA

Thursday, 6th October 2011: A consortium of organisations representing transgender and intersex people around Australia today welcomed the High Court of Australia’s decision to uphold the appeal of two trans men who challenged the interpretation of the West Australian Gender Reassignment Act (2001), saying that they hoped the decision would set a precedent for the way similar laws around the country would be applied.

Sally Goldner, spokesperson for TransGender Victoria said “The High Court ruled that the law should be applied in a beneficial way that makes life easier, not harder for people, and therefore that there was no justification for requiring people to have costly and unnecessary surgeries in order to have their sex recognised.”

Goldner added that the decision “is in line with the findings of the Australian Human Rights Commission’s Sex Files Report in 2009 which recommended that surgery should not be considered a necessary pre-requisite for the legal recognition of a change of sex.”

Aram Hosie, spokesperson for the WA Gender Project said “Previously transsexual people in Western Australia, as in other parts of the country, have been unable to legally amend their sex without invasive, medically unnecessary surgeries that may be unwanted, impractical or unattainable.”

“This has resulted in difficulties in proving ones identity on essential documentation, a loss of privacy, and the risk of exposure to discrimination, harassment and sometimes even violence.”

Hosie added that “in Western Australia in particular, a person’s inability to legally amend their sex leaves them without any legal discrimination protections.”

“The High Court’s decision will now make it much easier for transsexual people in Western Australia to obtain documentation that accurately reflects their identity and physical appearance. In turn, this will further help those same people to more easily obtain discrimination protection under West Australian law.”

Peter Hyndal, spokesperson for A Gender Agenda said he hoped that the decision would “set a precedent about the way that laws governing the recognition of sex in Australian should operate, and so help make life easier for transsexual men and women in Western Australia and the rest of the country.”

“To this end, we call on other State and Territory Governments around Australia to reflect the High Court’s decision in their interpretation and administration of the law and to act on the recommendations of the Australian Human Rights Commission Sex Files report” Hyndal added.

“We would also like to acknowledge that this historic case would not have been possible without the generous pro bono support of Freehills. Freehills commitment to this case over more than three years demonstrates their support for human rights in Australia, and we are very grateful for their efforts. We congratulate AH and AB – and also people like Conor Montgomery in NSW – for their courage and determination in tackling unfair situations. They make a huge difference for the lives of many other people in standing up for what they believe.”

- ends -

The full high court decision is available online at:
http://www.austlii.edu.au/au/cases/cth/HCA/2011/42.html

—————

Cross-posted at Bird of Paradox

I hesitate to jump into these shark-infested waters, but here goes.

I certainly have my own opinion on the “transsexual” vs. “transgender” debate that has ignited many a flame war on the internet over the last few months between those who want to separate our community based on those who have had or, at least, want to have, SRS, from everyone else, but I’m not going to express that here. Instead, I’m going to take a position that I’ve never seen expressed by anyone else, although some have come close. My position comes from my background as an attorney and my understanding of how anti-discrimination laws are written and are intended to operate.

Here’s what I know to be true: the dispute about who is transsexual and who isn’t is irrelevant to the fight for protections for transsexual, transgender, genderqueer and every other gender variant or gender nonconforming person in this country. Why? Because of how anti-discrimination laws are written for both practical and constitutional reasons.

Read the rest of this entry »

This article in The New Mexico Independent seems to offer good news for the state’s trans people:

The New Mexico Motor Vehicles Division in July established a new form to help facilitate changing a person’s gender designation on a drivers license. In doing so, the MVD clarified that gender surgery is not a requirement for a person seeking to change their gender. All that is required is the signature of a medical provider or clinician, stating their opinion that the person will not change their gender again in the foreseeable future.

Alicia Ortiz, deputy director of the MVD, said this week the new form should make things like traffic stops less of a problem for transgender people, who might not have changed their gender marker before due to lack of standard procedures at the MVD. The new form standardizes the process by which gender can be changed throughout the department.

Although the MVD looks to be playing it down as a simple administrative change to make bureaucrats’ lives easier, it seems as though there will be a very real benefit to trans people. OK, so it doesn’t sort out the problems of SS no-matches, but it certainly seems like a step in the right direction.

“Many [trans people] can’t afford surgery, so to require that is discriminatory economically,” [said Adrien Lawyer, executive director of the Transgender Resource Center of New Mexico]. “This new policy relies on a person’s own interpretation of their gender, whether they are living their life as a male or female.”

“Document mismatch is a big problem for transpeople,” he continued. “For instance, I have a beard now so if I have an identification saying I’m female, it’s difficult.”

Jordan Johnson, interim director of Equality New Mexico adds:

“We have some of the best laws when it comes to gender identity expression [...] and many people move here from outside because there’s a sense of protection … you see more people comfortable about being able to express they are a transgender person. This is a really progressive thing that is happening for this community.”

[...]

Examples of laws that protect transgender people in New Mexico are an employment non-discrimination law that protects a person from losing their job while they are transitioning from one gender to another. Additionally, a hate crimes statute that increases penalties for people who target people for characteristics like race, ethnicity, or sexual orientation. A law that Equality New Mexico would like to see pass is a “safe schools” bill that would establish anti-bullying procedures within the schools.

I don’t know if there are any drawbacks to this change regarding gender markers in drivers’ licenses, but superficially at least, it seems to me like a definite move forward; one which I can only hope less progressive states will follow.

From a press release by the Equality Network about Scotland’s new hate crime law, which will come into effect tomorrow, 24 March 2010:

[...] The new law is called the Offences (Aggravation by Prejudice) (Scotland) Act. It will mean that homo/biphobic, transphobic and disability-prejudice crime is properly recognised as hate crime.

This is the first transgender-inclusive hate crime legislation in Europe, and has the most inclusive definition of transgender identity in any European legislation.

From tomorrow, any criminal offence which is partly or wholly motivated by prejudice on grounds of disability, sexual orientation or transgender identity, will be dealt with as a hate crime all the way through the system.

The offence could for example be an assault, or vandalism, or verbal threats and abuse which can be charged as breach of the peace, or any other crime. If the person committing the offence uses homo/biphobic, transphobic, or disability-prejudice language, or if there is any other evidence of their prejudiced motive, that makes it a hate crime.

If anyone witnessing a crime thinks it was a hate crime, the police must record it as a hate incident. If there is any evidence of the hate motive, for example prejudiced language was used, it will be charged as a hate crime. If the person charged is found guilty, the hate motive will be taken into account in sentencing – and the court must say publicly what difference the hate motive made to the sentence. [...]

Barely a week after the news of the granting of a ‘Sex Not Specified’ Recognised Details Certificate in place of a birth certificate to norrie mAy-Welby, SAGE Australia and others are reporting that:

The Attorney General of NSW has pressured the NSW registery of Births, Deaths and Marriages to revoke the Sex Not Specifed status of Norrie May Welby. The inhumane actions and total lack of understanding by the Attorney General in this matter has led to the lodgement of an offical complaint to the Australian Human Rights Commission under the 1984 Sex Discrimination Act. [Via]

Both Norrie and SAGE issued statements yesterday, March 18, 2010, at a press conference held at the Offices of the Australian Human Rights Commission where a complaint was lodged against the NSW Attorney General’s Office for sex discrimination under the 1984 Sex Discrimination Act. (Direct link to PDF copy of the statements here).

From norrie’s statement:

I am devastated by the news. It is a hideously humiliating position to find myself in and makes a mockery of my human rights that I feel have been completely violated by the Attorney General’s Office.

[...]

I am being discriminated against because my sex is not the same as the average male or female but I am still a human being and entitled to protection under the law.

My complaint also cites breaches of Articles 1 and 2 of the United Nation’s Charter of human Rights of which Australia is a signatory. My right to socially differentiate myself is being interfered with by the state. Also I am being harassed by the Rudd Government because of my sex. I will continue to fight for my right through the courts to identify myself in society as the person I truly am ‘Sex Not specified’

Tracie O’Keefe’s statement for SAGE suggests that this is nothing other than “a cruel, viciously and politically motivated attack on [norrie's] identity by the Attorney General to woo right-wing voters in a year when the Rudd Government proposes to fight an election” and adds:

In 2009 the Australian Human Rights Commission released its report on the legal disadvantages of sex and/or gender diverse people in Australian society – The Sex Files – and made recommendations for changes in government policy and laws. The government has done very little to implement these changes and still sex and/or gender diverse people are often stuck in a legal disadvantaged situation that would not apply to any other sector of society.

In the report the AHRC recommended that people like Norrie be allowed to have identities that do not specify their sex/or gender. However it seems the Attorney General has dismissed these recommendations and human rights are way down his list of priorities, far below appeasing right-wing Labor party supporters. This is a scandalous abuse of power.

I last posted here about Christie Elan-Cane’s continuing fight for legal and social recognition outside the societal gender system in the UK in May 2009 and am interested to see the latest update on per LJ.

Per has obtained the support of Baroness Sarah Ludford (Liberal Democrat MEP for London) and she has recently tabled a written question to the European Commission asking whether the Commission considers that EU legislation sufficiently protects citizens who identify as non-gendered or differently to that registered at birth, and whether there are any plans to revise EU Directives in a more gender neutral way.

The question was tabled after Christie approached Baroness Ludford to request her support and assistance in taking the issue forward to Europe (armed with the ‘Sex Not Specified’ initiative that has taken place in Australia), as per felt that the pace of progress in the UK has been intolerably slow to date and seems unlikely to change any time soon.

Having started the process, per will nevertheless continue per fight here in the UK in the hope that the proposed changes to existing legislation might eventually bear fruit, although this might be overtaken if per campaigning directly at the European Parliament succeeds.

I have always tried to stress the point that legal recognition and equality of treatment for the most marginalized human beings who lead a socially invisible existence outside the gendered societal structure is a HUMAN RIGHTS ISSUE whereas the perception within the United Kingdom tends towards designating anything ‘trans related’ into a ‘health issue’. The pathologisation (and resultant stigmatisation) of what is fundamentally an innate inability to conform within a gendered societal structure is something I totally oppose.

Christie adds that it could take up to six weeks before per receives a response from the Commission, and per next step will be decided upon after that.

Interesting post in The Scavenger, although I’ve not seen it reported anywhere else.

Norrie, a member of Sex and Gender Education (SAGE), a lobby group campaigning for the rights of all sex and gender diverse people has been issued with what is understood to be the world’s first ‘Sex Not Specified’ Recognised Details Certificate in place of a birth certificate.

This means that Norrie (also known as norrie mAy-Welby) – a resident of Sydney, NSW – is legally recognised as neither male nor female according to the Australian government.

For a long time after transitioning, Norrie had felt uncomfortable identifying as either male or female and now describes hirself as an androgynous human.

Having gender markers as part of our legal identity is a problem for everyone facing gender discrimination, and anyone who does not fit the standard options of male or female.

Not everyone does, you know, with one in a thousand people being born with an intersex condition, and other people of sex or gender diversity, such as transsexuals in transition, or bigendered people who may identify as either male or female or both, according to the situation or time of day.

Having received a medical declaration that Norrie is neither male nor female – zie has no gonads, an atypical hormonal system and hir psychological identity was neuter -

NSW Births Deaths and Marriages then issued the ‘Sex Not Specified’ Details Recognition Certificate in accordance with recommendations made by the Australian Human Rights Commission’s 2009 report on the legal rights of sex and gender diverse people proposing a greater scope of legal recognition be used beyond male and female for certain individuals.

This is thought to be the first such legal documentation issued anywhere in the world and as Tracie O’Keefe, spokesperson for SAGE Australia, says:

“This decision now has fundamental ramifications for neuter and intersex identified individuals in that they no longer have to be forced to live as male or female.”

“Furthermore it is an enormous legal breakthrough for the rights of intersex children whose doctors and parents are confused about their sex at births and that they could be registered as ‘Sex Not Specified’ until they decide what sex would be right for them.”

“Many intersex children have been forced into male and female identities, when not medically necessary, which they later felt were incorrect, including unnecessary brutal surgery to give them stereotypical looking genitalia, often leaving them without sensation or function.”

I don’t think there can be any doubt that this is an important step on the path to securing the full human rights so often denied to intersex people by the medical profession’s enforced normalisation in its attempts to impose binary conformity on everyone.

You may remember Sass Rogando Sasot’s moving speech at the UN, “Reclaiming the lucidity of our hearts”, which I linked to here in December last year. She’s now forwarded the following email with approval to repost, which I do.

It’s a more extreme (but not uncommon) illustration of what Sass calls one of the 21st century dilemmas faced by many transsexual people the world over; that of the chasm that too often exists between our real lives and our legal documentation, and the impact this discrepancy can, and does, have on us.

As an aside, it’s worth noting that the situation was only addressed here in Britain six years ago with the passing into law of the Gender Recognition Act – and even then, the process of obtaining a Gender Recognition Certificate is not the simple process that some people seem to think it is. Before 2004, in the eyes of the law, transsexual people in Britain simply did not exist. The character Mr. Bumble in Charles Dickens’ Oliver Twist may well have had a point when he said “the law is a [sic] ass — a idiot”; unfortunately it’s an ass with a powerful kick.

“You cannot renew your passport as you can’t have dual identity,” said a staff of the Philippine Embassy in Berlin to Jenny T. Ramsey. Jenny didn’t do anything illegal. She’s not pretending to be somebody else, deceptively living two lives. She just epitomizes two of the inconveniences of being a human of transsexual experience: 1) Having a legal sex that doesn’t match one’s actual, lived, and to be a bit scientific about it, neurological sex; and 2) Having a legal name that doesn’t match one’s actual, everyday name. But Jenny’s case is in an entirely different level. And I reckon that, given that there are just very few countries in the world that legally affirms the gender identity of transsexual people, this is one of the 21st century dilemmas of transsexual people: Jenny currently has two legal sexes and two legal names from two different countries.

Jenny is one of the four original founders of the Society of Transsexual Women of the Philippines. Sometime in 2003, Jenny went to Germany to study; she lived in Erfurt with her German partner. In 2006, Jenny decided to undergo sex reassignment surgery in Thailand. During this time, transsexual people (at least, post-op transsexual women) have successfully petitioned local courts in the Philippines to legally change their sex and name. One of them even got married in a civil wedding in the Philippines. But unfortunately, in October 2007, the Supreme Court of the Philippines rendered a decision that this can no longer be done unless Philippines Congress passes a law that would allow such changes. This was known as the Mely Silverio Decision.

Because of the Silverio Decision, Jenny decided to file a petition to change her name and sex from male to female in a German court. She was represented by a top-notch lawyer in Germany. On 23 July 2008, Amskerich Ehrfurt granted Jenny’s petition. It was a groundbreaking case in Germany as Jenny was, as far as we know, the first non-German citizen to be able to change her legal sex and name in Germany. Sometime last year, another Filipino was able to change his legal sex and name in Germany, this time from female to male.

After more than five years of being together, on 2 April 2009, Jenny and her German boyfriend married. Afterwards, Jenny was granted a temporary residence permit with her female name on it. Then Jenny inquired with Ausländer Behorde (German immigration) about what would happen when she travels abroad: Would she use her Philippine passport, hence would travel as “male”? The immigration officers discussed this among themselves and provided this solution: They issued Jenny a Reiseausweis für Ausländer (Travel document for foreigners) bearing her female sex and name. According to www.duesseldorf.de, this passport is a temporary passport and is only issued in very exceptional cases.

On 28 January 2010, Jenny went to the Philippine Embassy in Berlin to renew her Philippine passport. To make sure that Jenny is not illegally staying in Germany, they asked her to show her visa. Jenny showed her temporary residence permit and Reiseausweis für Ausländer. The discrepancy between Jenny’s identity in her Philippine-issued documents and German-issued ones led to the confiscation of Jenny’s passport (though they told her that they are just getting it for “safekeeping”). They said they will raise this issue with the Department of Foreign Affairs of Manila (DFA) and wait for a decision. Given that it’s national election season in the Philippines, this will mean Jenny has to wait.

When in Rome, do what the Romans do – but which Rome?

But wait for what? What could be the possible decision of DFA? I can think of two possible scenarios: 1) DFA honors the change of legal sex and name of Jenny and issue her a Philippine passport bearing a female sex and name. Or 2) DFA doesn’t recognize the decision of the German court and issue Jenny a Philippine passport bearing a male sex and name. Because of the Silverio Decision, Scenario 2 is more probable to happen than Scenario 1. If Scenario 2 happened, I would like to ask the DFA a glaring WHY?

In July 2009, 67 Filipinos were arrested in Saudi Arabia for crossdressing. In reaction to this, Silvestro Bello, a cabinet secretary and top aide of the Philippine president, pulled the when-Rome-do-what-the-Romans-do card and was quoted saying, “When [Filipinos] enter their host country, they should know the culture of their host country.” Crossdressing is a crime in Saudi Arabia. The 67 Filipinos were sentenced to imprisonment and flogging but were pardoned and released.

Now, why am I bringing this up? Pardon my legal ignorance but it seems to me that the Philippines is more bent on honoring and respecting a ridiculous, dehumanizing law, such as the anti-crossdressing law of Arab countries than honoring and respecting a life-affirming legal procedure such as the legal change of sex and name that was granted to Jenny by a German Court.

Yes: It’s such a shame that it’s not Jenny’s mother country that has showed care, compassion, and consideration to her humanity. Well, this just proves that no matter how familiar a place is to you, sometimes it just don’t feel like home. Jenny now considers Germany as her home now as this is the country where she can live her real life, socially and legally. And to the Philippine Embassy in Berlin: It’s not Jenny’s fault that she currently has a dual identity: It’s the fault of the Philippine government as it refuses to recognize and affirm transsexual people’s reality.

During our phone conversation, Jenny and I were musing about what is her legal status now, given that her Philippine passport was confiscated (okay – was kept for “safekeeping”). She’s not yet a German citizen. The Philippine embassy won’t yet issue her a new passport as they don’t want her to have a dual identity. Is she currently a stateless person? A refugee? A possible asylum seeker? We don’t know. All we know is Jenny is willing to renounce her Philippine citizenship anytime.

After all, who needs a citizenship that doesn’t legally affirm your reality?

—————

Curtsey to the TGEU listserv for the heads-up

—————

Cross-posted at Bird of Paradox

Apparently there’s actually a little wee bitty bill also being debated in New York at the moment as well as the gay marriage one.  No really, I kid you not.

GENDA is in the New York Senate (it’s passed the Assembly right now).  GENDA would include trans people into New York’s human rights protections.  Like most anti-discrimination legislation, this will protect people from being fired, being denied housing, ejected from restaurants, harassed and arrested for going to the toilet.

Now, this bill needs as much support as the gay marriage bill.  I’m pro-gay marriage as far it goes (lesbian relationship here), but there are other important things that need attention and political action.   As we saw in New Hampshire, trans rights bills are suffering from a lack of support across the board, but most sorely from GLB(t) organizations.  GENDA needs a push to get there..  right now.

Cos you know, so what if you can get married if you can be legally discriminated against for employment, housing, and going to the bloody toilet?

h/t The Curvature