ࡱ> >@= 'bjbj 00  W a mmm8 "x"z"z"z"z"z"z"$a'dz"mz"mm"$$$Xmmx"$x"$$rX!T4" k!d""0"!z''4"'m4"0$z"z""' : Dear 鱨վ, We would like to make a submission to the 鱨վ consultation on the need for federal protection from discrimination on the basis of sexual orientation and sex and /or gender identity. The views expressed in this submission are ours and should not necessarily be taken as a reflection of the views of any institution or organization that we are affiliated with. Discrimination laws generally and focus of submission We consider there are strong reasons for Federal anti-discrimination laws to prohibit discrimination on each of the following grounds: sex and / or gender identity; and sexual orientation. This submission focuses in particular on the importance of combating discrimination on the ground of "sex and/or gender identity". This is not to diminish the importance of addressing discrimination on the ground of sexual orientation, a proposition that we strongly support. However, this issue is not the focus of our submission. New category of discrimination on the basis of "sex and / or gender identity" We consider that a generic title for the whole gender/sex area (ground) should be selected that would supersede the old sex and then variants mode. This should avoid any implication that particular concepts such as "male" and "female" are impliedly prioritized, or the norm. As a starting point, we propose the term "sex and / or gender identity" as a concept that is potentially broad enough to cover: biological sex characteristics (including chromosomal sex, genitals, reproductive organs and capacity); gender identity (that is, how a person perceives their own gender); and gender expression (that is, how an individual's gender is perceived by others). Ideally, legislation would also follow the International Bill of Human Rights mode of including an open category, such as "or other status", so long as that was not limited to identification only by law. Practical arguments for including discrimination on the basis of sex and/or gender identity in Federal laws The issues of discrimination on the basis of biological sex characteristics and gender expression are relatively well understood, at least in so far as they apply to "men" and "women". However, the realities of discrimination against people who are sex and/or gender diverse is little known and poorly understood by members of the public, bureaucrats in decision-making roles, legislators and the judiciary. Unfortunately, discrimination against sex and/or gender diverse people may even be tolerated as acceptable by some people in the Australian community. Every day, people who are sex and/or gender diverse live with the reality of discrimination. At a bureaucratic level, discrimination takes many forms, whether this is sex and gender diverse people having to go through multiple invasive and humiliating interviews with government officials when trying to get their passport updated to reflect their current lived gender; or having awkward and humiliating conversations with receptionists in public hospitals as to why a "man" needs to see a particular gynecologist for a procedure; or even being effectively required to have medically unnecessarily surgical procedures ("reassignment surgery") in order to access an identity document that reflects their current lived gender. For sex and gender diverse people, the best and sometimes only option may be to try to pass as "men" or "women" and thereby avoid unwanted attention. People who "pass" nonetheless live with a daily fear of discovery, and the associated risks of humiliation, violence and social exclusion. If they do not pass they may have to contend with ridicule, humiliation, harassment, vilification and violence in their every day lives. This is unacceptable in Australia in 2010. Legal arguments for prohibiting discrimination in Federal laws State and Territory anti-discrimination laws are not enough to protect sex and gender diverse people from discrimination. There is considerable variation in State and Territory laws, so the protection they provide from discrimination is uneven. Some jurisdictions (for example, WA) continue to require surgical intervention before they will reassign gender legally and even then, the courts can interfere in these very private decisions. These laws are arguably themselves in breach of Australias obligations with regard to ending discrimination and protecting privacy. Further, State and Territory laws cannot remedy discrimination in areas of life that are regulated by Federal laws, such as the issue of passports, the Medicare and PBS systems, the vast majority of employment relationships in Australia, marriage, and family law. Australia has obligations in international law to prohibit and prevent discrimination (Articles 2 and 26 of the ICCPR). While not the direct subject of this consultation, it is nonetheless relevant to note that Australia also has obligations to ensure that no-one is subjected to arbitrary or unlawful interference with their privacy (Article 17(1) of the ICCPR). While anti-discrimination laws cannot end prejudice, hatred or violence they are a powerful statement about community acceptance of difference, and in particular, diversity in sex and / or gender identity. Anti-discrimination laws also provide some legal recourse for sex and /or gender diverse people who can and do encounter discriminatory treatment and practices in many areas of their lives. Action required beyond law The discussion paper asks for views on actions that should be taken to better protect and promote the rights of LGBTI people in Australia. In this regard, we would refer you again to the right to privacy, and the need to put systems, procedures and appropriate training in place to ensure that sex and /or gender diverse people are not unnecessarily humiliated and exposed to arbitrary interferences with their privacy when having to deal with bureaucratic decision making around Federally regulated issues such as passports, Medicare cards, Centrelink services and so on. We would also like to highlight the very real links between community attitudes towards "normality" in sex and gender, and the very real health impacts on sex and/or gender diverse people that result from violence, social exclusion and social isolation. Finally, recent community surveys amongst the sex and gender diverse community in the ACT have highlighted an urgent need for ensuring that sufficient health and support persons are available to all people, irrespective of their sex and /or gender identity. For example, to work effectively with people who are transgender or intersex, health care providers need to approach their clients not only with respect but also with knowledge about their particular social and health needs. In the ACT, there are limited numbers of medical providers with this knowledge, most of whom have "closed their books" to new patients. The practical result is that some sex and gender diverse people in the ACT either do not seek medical treatment, or choose not disclose their full medical history for fear of facing potential discrimination from ill-informed medical practitioners. This raises serious concerns on an individual level but also from the perspective of the need to protect and respect the human rights of all persons in Australia today. Thank you for considering our submission. Very best, Fiona David Peter Bailey Visiting Fellow Professor Centre for International and Public Law College of Law Australian National University Australian National University  See further, the discussion of the Goodwin case in the European Court of Human Rights in David and Blight, Understanding Australias Human Rights Obligations in Relation to Transexuals: Privacy and Marriage in the Australian Context, 9(2) Deakin Law Review, 309.     ),, 1 H }CN%]%k%%%%%%%&&&&&&&&&&''˾jh nUh nh7_h,3CJh,3jh,30JUjh7_hf#0JU h7_hf#h7_hf#5hf# hhf#))*  q r H I _ ` I $ & Fa$gdf# $ & Fa$gdf#$a$gdf#MO%&CD $$"%#%.%$a$gdf#.%/%M%N%l%%%%%&&&&&&&&&&&''gdf#gdf#$a$gdf#.:pf#|. 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