Transgender discrimination law in Australia- uncertainties

It is not uncommon to find popular assertions , in relation to the legal treatment of transgender persons, that the law requires that a person who asserts they are of a different gender to their biological sex, be allowed to use bathrooms set aside for their chosen gender, or that they have a “right” to be addressed by the pronoun corresponding to that gender. In this post I want to point out that it seems quite arguable that the law in most of Australia does not have this effect. (I will comment briefly on recent changes in Tasmania which may have, though even there, the question is debatable.)

Official guidance

The gap between “guidance” provided by the public service, and what the law actually says, in this area, has recently been highlighted in the United Kingdom. There a recording of “training” given by a transgender lobby group to school teachers, revealed assertions about the law which just could not be supported by what the law actually says.

What is the situation in Australia? The current guidance given to schools by the NSW Education Department, for example, urges schools generally to accept the “gender of choice” indicated by a student, but does not in terms assert that a school would be breaking the law if it does not do this. The web-page (updated as at 26 March 2019) is headed “Legal Issues Bulletin 55 – Transgender students in schools“, but carefully leaves assertions about the law to simply repeating in an appendix the broad terms of the relevant anti-discrimination legislation. Against this uncertainty, it is important to be as clear as possible on what the law actually says.

The law in most jurisdictions

In Australia we have a number of different pieces of legislation which concern discrimination, as over the years both the Federal Parliament and also the States and Territories have passed separate laws. In particular, in dealing with possible discrimination based on “transgender” identity or the like, we have both Commonwealth and State laws. (For the sake of simplicity, I will mainly deal with the NSW law, which is similar to most other laws around the country, except, as we will see, for Tasmania.)

At the Commonwealth level, we have the Sex Discrimination Act 1984 (“SDA”) , under which (since amendments which commenced in 2013) one of the “prohibited grounds” of discrimination is “gender identity” under s 5B. This term is defined in the Act as follows:

“gender identity” means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.

In NSW we have the Anti-Discrimination Act 1977, in which s 38B forbids discrimination on “transgender grounds” . (Interestingly, this Act as it applies to employment and education decisions, does not apply to a “private educational authority”- see eg s 38C(3)(c), 38K(3). This exemption, however, does not apply under the Commonwealth SDA, so private schools in NSW are still subject to the SDA).

What do these provisions mean? While it is sometimes assumed that they require treatment of “pre-operative” transgender persons (that is, those who have not yet been through surgical procedures) as if they were for all purposes members of their preferred sex, this is by no means obvious.

It is arguable, rather, that a prohibition on discrimination against transgender persons simply means that they must not be denied services others would be provided in “neutral” areas such as service in a café or employment in a job, where their status would be irrelevant. But it seems that the law does not currently require a biological male (who has not undergone medical and surgical reconstruction) to be allowed to wear a girls’ school uniform, or to be allowed access to female bathrooms, or to be called by a female pronoun, or to compete in a women’s sporting event.

In other words, while the law forbids detrimental treatment of persons in a protected category on “irrelevant” grounds, it seems likely that it does not prevent the application of criteria in decision-making which are relevant to the decision. It is relevant to ask, when considering when someone should be allowed to use a women’s bathroom or change-room, whether that person is a biological female. It is relevant to ask, when making decisions about the use of masculine pronouns, whether the person being referred to is a biological male. Such questions are also relevant in determining who should be allowed to compete in a women’s sporting event. (Note that s 42 of the SDA, for avoidance of doubt, already contains a clear exclusion of the “gender identity” discrimination provisions from decisions in relation to participants in over-12 sporting competitions “in which the strength, stamina or physique of competitors is relevant”.)

This argument is supported in NSW by the fact that the ADA 1977 draws a clear distinction between a “recognised transgender person” and others.

The ADA sets out separate grounds of discrimination which are applicable to ‘recognised transgender persons’, in s 38B(1)(c), and are not the same as the grounds which are expressed to apply in relation to a person who is simply described as ‘transgender’. The difference between these categories of persons is that a ‘recognised’ transgender person will be one who has undergone a medical ‘sex affirmation procedure’. It is only such persons for whom, under s 38B(1)(c), it is explicitly said to be discriminatory to treat them “as being of the person’s former sex”.

Given this, it seems fairly clear that by implication treating a ‘transgender’ person who has not had the formal medical procedure, as if they belong to their biological sex, does not amount to unlawful (or “less favourable”) treatment per se. (For further discussion of these issues, see a report prepared for the Sydney Diocese of the Anglican church, Gender Identity (a report from the Social Issues Committee, revised 21 November 2017) , at pp 27-32).

A recent case- Tafao v Qld

This view of the operation of the legislation is, in my view, confirmed by what seems to be the only detailed consideration under discrimination law of a claim based on a “wrong pronoun”, and the placement of a transgender female in a male prison, in Tafao v State of Queensland  [2018] QCAT 409 (16 Nov 2018).

This decision, by a Member of the Queensland Civil and Administrative Tribunal, is not of precedential status, but provides an important example of the reasoning that might be applied in similar cases. The prisoner, Leilani Tafao, was a biological male person who had had some medical treatment to transition to female, but was still able to function as a male (see para [7]). The prisoner’s relevant identity documents noted them as male. An internal “Custodial Operation Practice Directive” (“COPD”) noted as follows:

Staff will address transgender prisoners:

– With the same respect given to all other prisoners.

– By either the name that they are currently registered as having (refer Births, Deaths and Marriages Registration Act 2003) or the name on a Warrant committing the prisoner to a Corrective Services facility or requiring a prisoner to be produced to the General Manager of a Corrective Services facility.

All records must reflect the prisoner’s registered name and gender to ensure the accuracy and consistency of the prisoner’s identification.

While in the prison the prisoner was referred to by male pronouns, and at one stage was directed in relation to their behaviour towards other prisoners, not to behave in an “overtly sexualised” way. They complained of “gender identity” discrimination under the Queensland Anti-Discrimination Act 1991.

The decision is lengthy, and not all details can be provided here, but in brief the result of the proceedings was as follows. On the complaint that the wrong pronoun was used, Member Fitzpatrick ruled that a “desire to be addressed by reference to the gender with which one identifies” was a characteristic associated with the prohibited attribute of “gender identity” under s 7(m) of the Act- see [68]. Hence the prisoner had indeed experienced “less favourable treatment” by being addressed by male pronouns, as a “cisgender” male prisoner would have been addressed by his preferred pronouns- see [83].

But the next question was whether this “less favourable treatment” was “on the basis of” the prohibited attribute of gender identity. Here the Member ruled that the real reason for the practice of using male pronouns was the COPD, the administrative guideline laid down by the Government, and hence she ruled that there had been no discrimination on “gender identity” grounds- see [86].

With respect, there was in my opinion another avenue to this same outcome, which may be relevant in other cases when no administrative guidelines are laid down. When asking the question, “was the male pronoun used on the basis of the attribute of gender identity?”, another answer was possible. In the Dictionary to the 1991 Act, in the Schedule, “gender identity” is defined as follows:

“gender identity” , in relation to a person, means that the person— 

(a) identifies, or has identified, as a member of the opposite sex by living or seeking to live as a member of that sex; or

(b) is of indeterminate sex and seeks to live as a member of a particular sex.

But none of those matters were what led to the prisoner’s being addressed by male pronouns. It was not as if the form of address was some sort of arbitrary “punishment” for the prisoner’s “identification” with the opposite sex. No; the authorities were entitled to say, we simply used male pronouns because the prisoner was a biological male.

In any event, the direct discrimination claim based on pronoun use failed. So also did the direct discrimination claim based on a directive not to engage in overtly sexualised behaviour, which the Member found had been reasonably imposed in the interests of the safety of the prisoner and the good order of the prison, and would have also been imposed on a “cisgender” male prisoner who behaved similarly- see [162].

There were also “indirect discrimination” claims based on the alleged imposition of conditions on the prisoner. One such alleged condition was that the prisoner “be a male”. The Member rejected this claim at [175]:

[I]t is a nonsense to construe a requirement in the given scenarios that the applicant be a man, when the applicant is a man. The submissions of the applicant make the claim that because the applicant identifies as female and seeks to live as a female, she is therefore a female. I reject that submission. I do not think an injunction against discrimination on the basis of the attribute of gender identity is a requirement to adopt the applicant’s perception of reality for all purposes. The applicant has the male gender because of her biological sex. (emphasis added)


Other “indirect discrimination” claims were also rejected. Later the Member commented, at [193]:

I accept that the use of male personal pronouns caused the applicant distress. However, in weighing that against what I find to be the genuinely held reasons for doing so, and the broader implications for the safe operation of the prison, I find that it was reasonable to address the applicant by reference to her gender, not gender identity. 

(Note that contrary to some other popular usage, the Member here was using “gender” to refer to “biological sex”- she explains the reasons for this usage in this case at para [73].)

The new Tasmanian law

While, as suggested above, it seems likely that the prohibition on “transgender discrimination” in most of Australia does not demand the use of a person’s preferred pronouns in the absence of surgical treatment, there is a law which may go so far. This is the Tasmanian Anti-Discrimination Act 1998 which (since amendments to the Act which came into force on 8 May 2019) now includes definitions as follows in s 3:

gender expression means any personal physical expression, appearance (whether by way of medical intervention or not), speech, mannerisms, behavioural patterns, names and personal references that manifest or express gender or gender identity

gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of an individual including gender expression (whether by way of medical intervention or not), with or without regard to the individual’s designated sex at birth, and may include being transgender or transsexual;

and then prohibits discrimination in s 16(ea) on “gender identity” grounds. Unlike other discrimination laws around Australia on this topic, the Tasmanian Act contains no general defence for religious groups, or for religious schools.

Let’s briefly consider the situation in Tasmania should a theological college run by a church with a strong belief that biological sex defines a person’s “gender identity”, be approached by a transgender person who was born female but now identifies as male (but has not had any medical treatment to achieve that outcome). The college decides that it will not make male bathrooms available, nor address the student by a male pronoun.

Under ADA 1998 (Tas) s 14(2) we read:

(2)  Direct discrimination takes place if a person treats another person on the basis of any prescribed attribute, imputed prescribed attribute or a characteristic imputed to that attribute less favourably than a person without that attribute or characteristic.

On the pronoun issue, the question is: has the college treated the student “less favourably”? If the logic of the Tafao case noted above were followed, a tribunal might find, yes, other students are referred to by their “preferred” pronouns, but this student is not. However, the same issue then arises: is this treatment “on the basis of any prescribed attribute”? Perhaps not. The choice of pronoun has not been made on the basis of the person’s “gender identity” in the sense defined by the Act. It has been made on the basis of the facts of biology and the college’s commitment to a religious world-view. In the college’s eyes, these are relevant factors for this decision.

It has to be conceded that the convoluted form of the definitions in the Tasmanian Act make the outcome unclear. What is the import of the “with or without” phrase that is used? (A similar phrase is used in the Commonwealth SDA, where it is equally enigmatic.) Does it mean that the decision-maker can choose whether they do, or do not, take into account the biological sex at birth? Reading the definition in to s 14 ADA 1998 (Tas), to replace the phrase “gender identity” with these words (and then adding the extra words from the phrase “gender expression”) seems almost impossible.

Similar difficulties will surround a decision about bathrooms, but again, the college may argue that male bathrooms have always been reserved for biological males, and this is a highly relevant and rational criterion to use.

Conclusion

It seems that the meaning of the “ordinary” form of transgender discrimination law is not to automatically require, to quote the decision in Tafao noted above, the adoption of the “applicant’s perception of reality for all purposes”. The law requires that transgender persons not be treated detrimentally on irrelevant grounds, but there are a number of situations where biological sex is relevant.

The situation seems less clear under the new Tasmanian form of legislation. It is to be hoped that Parliaments will consider the language very carefully before adding similar provisions in the future.