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BY Rhys mackintosh, hayton lam and indigo hemingway

To what extent should NSW and Australia change legislation to reflect changing understandings of transgender identity?. BY Rhys mackintosh, hayton lam and indigo hemingway. Secondary Research – Current Situation.

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BY Rhys mackintosh, hayton lam and indigo hemingway

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  1. To what extent should NSW and Australia change legislation to reflect changing understandings of transgender identity? BY Rhys mackintosh, hayton lam and indigo hemingway

  2. Secondary Research – Current Situation • Federal policy – A person may change federal government paperwork and documents with a note for a medical practitioner, a valid passport with their gender or a birth certificate (Australian Government Guidelines on the Recognition of Sex and Gender). • State policy – To change one’s gender on a birth certificate (NSW) they must be over 18, have undergone sexual reassignment surgery (SRS) and be unmarried (Births Deaths and Marriages Registration Act 1995 (NSW), ss. 22). • Most surgeries related to gender such as SRS only partially covered by Medicare and vary between surgeons. Most cosmetic aspects are not covered (OutinPerth 2012).

  3. Literature Review Should legal recognition of gender be changed? Should the laws regarding transgender bathroom use be changed? The general media’s view is that it should, with the inclusion of gender-neutral bathrooms. They believe that this policy should be extended to schools as well. People such as Dr Michelle Telfer, director of Melbourne's Royal Children's Hospital's Gender Service believe about this. The opposition includes Dr David van Gend, president of the Australian Marriage Forum states that by making such policy, we would be “collaborating with a child’s delusion” and that “we must strive to help the young person come back to reality”. (Washington Post 2016), (ABC 2017), (McAvan 2016). • Some believe that the SRS requirement is discriminatory, is too expensive a cost for recognition and isn’t necessary. Supported by Emily McAvan of SBS, Jillian Triggs of the AHRC and Aram Hosie of the Lancet. • Australia Christian Lobby Tasmania Director believes: “When gender is defined solely as how one feels about oneself as male or female with no clear basis in genetics or sexual development, the term ‘gender’ loses any concrete reference to objective biological reality.” • (McAvan 2016), (Gleeson 2016), (Resiner et al. 2016), (ACL 2016).

  4. Literature Review Should SRS be fully covered by medicare? Should srs be available to people under the age of 18? The current laws on this allow children to have a choice at mature age and the parliamentarians support this. On the other hand some believe that transgenderism is a ‘social fad’ and that prepubertal children have no idea about their gender. Supported by John Whitewall and Miranda Devine. (Devine 2017), (Law and Religion 2016). • Some believe that the requirement of SRS means it should be covered due to the harms without the surgery, such as in the defence force. Supported by Marise Payne and Shelly Argent. • Pauline Hanson and the current Medicare administration take the alternative view as they do not believe it is a necessary procedure for the taxpayer. • (OutinPerth 2012), (Karp et al. 2017).

  5. Survey Results - Currently the prerequisite for changing one's gender on a birth certificate in NSW includes sexual re-assignment surgery. Do you agree with this requirement? Student responses – 53 Teacher responses – 9

  6. Survey Results - What do you think the requirements should be to change one's gender on all legal documents? Student responses - 53 Teacher responses - 9

  7. Survey Results - Do you think Medicare should cover the full costs of sexual re-assignment surgery? Students responses – 53 Teacher responses – 9

  8. Survey Results - To what extent should Australia change its legal terms and legislation to reflect the changing understandings of gender identity? Student responses – 53 Teacher responses – 9

  9. Interviews • We had five questions: • 1. To what extent should New South Wales and Australia change its legislation to reflect the changing understandings of transgender identity? • 2. Currently the prerequisites for changing one's gender on a birth certificate in New South Wales include sexual reassignment surgery. Do you agree with this requirement? Why (not)? • 3. What do you think the requirements should be to change one's gender on all legal documents and why? • 4. Do you think Medicare should cover the full costs of sexual reassignment surgery and should it be available to people under the age of 18? • 5. Do you agree with the current policies regarding transgender bathroom use (none) and should they be able to access their bathroom of choice?

  10. Interviews: Andrew Bolt – slightly altered questions • Q1: I am not aware of any changes being necessary   • Q2: I guess so, but would not die on a ditch defending it. Is your gender what biology says it is or what you say it is?  I tend to defend science, myself. Else what does the term mean? • Q3: I would go with what is on the birth certificate for preference, just to be clear what we are talking about. But I would not be hardline about it.   • 4. Do you think Medicare should cover the costs of sexual reassignment surgery? • If it relieves a real medical suffering, as established by professionals.

  11. Interviews:Liz – Case manager from the Gender Centre • Q1: To allow them to change their gender instead of going through expensive SRS or unnecessary surgery. • Q2: They find this ridiculous. To have one piece of paper to reflect their true self. Their finances cause challenges, the exposure, the public attention it will draw to their lives, it screws their private life. • Q3: The immigration requirement. A simple medical report signed by the doctor. It’s possible to exploit things, so some measure of accountability is needed. Government generated, one page form for a doctor to sign. Its easy, works and is simple. Something similar for other legal documents. Banks, for example, do recognise passports and change of names. • Q4: P1: Yes, it should be covered. Creating strains because of mental health and the cost of these surgeries, removing the cost would alleviate these kinds of things and make it available. Transition is an individual journey. Training and education too.P2: Accessible but there should be frameworks about it. • Q5: I do agree with it. The increasing possibility of unisex should be more explored. More education should be available.

  12. Interviews: Jackie Lyne – Legal Officer from Anti-discrimination Board of NSW • Q1: NSW perspective. Transgender provisions were introduced in 1996, reflected community understandings of transgenders at that time. The NSW government is out of date with its understanding of sex and gender issues. Like to see law reforms to bring more transgender provisions up to date and about gender identity. • Q2: ADB view. I think that obviously that needs to be changed to be away from traditional practices, accessibility and necessity is an issue. Essentially what people judge with gender is how they see them, not what’s under their clothes. People transition in different ways. Treatments such as hormones should be sufficient, it would preferable to have a doctors note. • Q3: Legal authority in UK/Canada that suggests a statuary declaration should be enough. I shouldn’t judge legal status, but we would like it to be not arduous or intimidating. Transition is not a decision made lightly and requiring multiple pieces of documentation of the gender they identify and live as is excessive. • Q4: P1: Its not something the board has given considerate thought to. The Commonwealth Government is in charge of Medicare, we haven’t provided advice about Medicare. Pass. • Q5: In most situations, a rule saying that a transgender person has to bathroom to use the biological gender is hard to reason and explain. We always encourage people to use the bathroom they identify as. On the whole, there are cubicles made available for most people. The Anti-discriminatory Act allows people to decide what bathrooms they can use.

  13. Ms Mynott– Legal Studies Teacher • Q1: Two-tiered law system where we have common and statute law.Parliament passes legislation but judges also have power to make laws - common law system. High court law making overrules everything else. Under common law, we do have recognition of transgenders, but Parliament is lacking. “Family Court” defines gender at the time of marriage rather than birth. Legislation is lacking in gender spectrum and it’s a problem that should be changed but if you look at the global scale, we are quite progressive. Changes are needed but Australia is more progressive common law-wise. • Q2 + Q3: No, primarily its impractical. The surgery is not that good, especially from female to male. I don’t like how the government dictates that you must have SRS, it’s a many-year process. You should live full-time as that gender. As a feminist, I do have a problem with male-to female transsexuals; the performance of femininity is weird. But I do believe there is a biological problem, with mismatching but there shouldn’t be a requirement of surgery. • Q4: P1: Yes? Full costs: I think Medicare should cover the full cost of other surgeries. Counselling, doctor visits and things like that should be covered. So, to the extent of any other medical procedure it should be covered. It is a necessary surgery, not a cosmetic surgery. P2: Yes. Because, you have a better outcome if all this intervention happens before puberty (physical appearance). People can consent to any medical treatment at age 14. Surgery is different but anyone over 14 can have a conversation with the doctor and they are not allowed to tell their parents. The full on SRS on a teenager…I don’t think there is a law against it, but I wouldn’t recommend it with the pain and things. • Q5: Yes. I don’t know why it bothers people, but I don’t get the bathroom thing. My understanding is that this is more of a thing in America; predator myth is among them. I have no issue with unisex bathrooms; I think males have more problems with that. There’s lots of places where bathrooms are unisex. I understand in school; place to hide and retreat. It doesn’t make sense for public, adult worlds though. Yes, I think transgender people should access the bathroom of their choice. We should stick with the anti-discrimination in NSW and extend it federally. Unisex bathrooms is the way to go. 

  14. Conclusion • Conducting primary and secondary research allowed us to gain a reasonable understanding of the public perspective on current transgender legislation, giving us a good indication on how to answer our focus question. • As in the literature review, we uncovered several key themes through secondary research. Ultimately, our sources proved more lenient towards the pro-transgender argument on varying sub-topics of this debate. • Our primary research gave insights into the general perspectives of certain demographics. Barker student survey results interestingly showed more lenience to the anti-transgender side, with the majority frequently choosing such options on the topics of SRS, Medicare coverage, legal requirements and more. For example, almost 60% responded that we should in no way change legislation to reflect our changing understandings of gender identity. • Our Barker teacher survey gave significantly different results, more closely aligned with the pro-transgender side. On the same question as above, 45% said that we should change all existing and future legislation, in stark opposition to the student response of not at all. • Our interviewees largely provided similar responses to the teachers on the issue. They displayed a common theme of politically progressive answers, essentially saying that SRS should be removed, Medicare should mostly, if not fully, cover the costs of SRS, and that transgenders should use the bathroom of their choice. Andrew Bolt was an exception in that he was more mild on the issue, just agreeing with SRS.

  15. In regards to our three questions: • Should legal recognition of transgender be changed from the current legislation? • Yes • Should Medicare cover SRS? • Partially – Depending on factors • Should transgender people be allowed to use the bathroom they identify as? • Somewhat?

  16. To what extent should Australia change legal terms and legislation in accordance with the transgender community's requests? • Based on our research, it depends on the particular subject area, Australia should somewhat change its legislation such as giving some recognition to transgender people. • However, other aspects such as Medicare cover for SRS or transgender bathroom rights should not be changed as the survey results, interviews and secondary research had a majority view on not changing. For the transgender bathroom rights, its more that it already allows transgender to use what they want in public, but unisex bathrooms is being advocated. • At the end, Australia is a democratic country and so should seek to appease the entire nation.

  17. Reference list Australian Christian Lobby 2016, Tas Govt should reject push for sex change on demand, Deakin, accessed 22 October 2017, <http://www.acl.org.au/2016/04/tas-govt-should-reject-push-for-sex-change-on-demand/>. Australian Federal Government Coat of Arms n.d., Photograph, Wikipedia, accessed 23 October 2017, <https://en.wikipedia.org/wiki/Government_of_Australia#/media/File:Coat_of_Arms_of_Australia.svg>. Australian Government 2013, Australian Government Guidelines on the Recognition of Sex and Gender, accessed 16 October 2017, <https://www.ag.gov.au/Publications/Documents/AustralianGovernmentGuidelinesontheRecognitionofSexandGender/AustralianGovernmentGuidelinesontheRecognitionofSexandGender.pdf>. Devine, M 2017, What madness can justify mutilating our children?, accessed 16 October 2017, <http://www.dailytelegraph.com.au/rendezview/what-madness-can-justify-mutilating-our-children/news-story/84c7426daf4c543d1074a08fd9bf3d41>. Koziol, M 2017, Public service push for gender-neutral bathrooms, accessed 16 October 2017, <http://www.smh.com.au/federal-politics/political-news/public-service-push-for-genderneutral-bathrooms-20170511-gw2taq.html>. Gleeson, H 2016, Gender identity: Legal recognition should be transferred to individuals, Human Rights Commission says, ABC, accessed 18 October 2017, <http://www.abc.net.au/news/2016-04-07/power-to-decide-gender-identity-should-be-with-individuals/7304120>. Medicare Coverage and Gender Reassignment Surgery 2012, accessed 16 October 2017, <http://www.outinperth.com/medicare-coverage-and-gender-reassignment-surgery/>. McAvan, E 2016, Why Australia's gender recognition laws need to change, accessed 16 October 2017, <http://www.sbs.com.au/topics/sexuality/agenda/article/2016/08/11/why-australias-gender-recognition-laws-need-change>. McAvan, E 2017, The politics of transgender bathroom access in Australia, accessed 16 October 2017, <http://www.sbs.com.au/topics/sexuality/agenda/article/2017/01/16/politics-transgender-bathroom-access-australia>. NSW Coat of Arms n.d., Photograph, Wikipedia, accessed 23 October 2017, <https://upload.wikimedia.org/wikipedia/commons/thumb/2/21/Coat_of_Arms_of_New_South_Wales.svg/220px-Coat_of_Arms_of_New_South_Wales.svg.png>. Patrick, A 2016, Transgender Australians can choose any bathroom they want, but not everyone is happy about it, accessed 16 October 2017, <https://www.washingtonpost.com/news/worldviews/wp/2016/06/18/transgender-australians-face-ingrained-biases-even-if-the-bathroom-issue-hasnt-spawned-legal-debate/?utm_term=.4236a49fcc63>. Reisner, S, Keatley, J & Baral, S 2016, Transgender community voices: a participatory population perspective, accessed 16 October 2017, <http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(16)30709-7/fulltext?rss%3Dyes>. Stark, J 2017, For some transgender students, the school bathroom is a battleground, accessed 16 October 2017, <http://www.abc.net.au/news/2017-04-01/transgender-students-bathroom-battleground/8395782>. Transgender issues under Australian Law- an overview 2016, accessed 16 October 2017, <https://lawandreligionaustralia.blog/2016/04/12/transgender-issues-under-australian-law-an-overview/>.

  18. Appendix • Link to main document and research: • https://docs.google.com/a/barker.nsw.edu.au/document/d/1AgQozBrRj3tDTKdwWGpWJSNuK1IJxTmUI6aAOGOfBPQ/edit?usp=sharing

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