October 7th 2017


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COVER STORY Green energy push has left us blowin' in the wind

EDITORIAL Lessons for Australia in NZ election results

CANBERRA OBSERVED Assurances on religious freedom needed now

ENERGY Peak oil turns out to be another moral panic

FOREIGN AFFAIRS Timor Leste, Australia reach new border treaty

BUSHFIRES Disaster awaits as advice again goes unheeded

GENDER POLITICS Does biological sex matter?

SAME-SEX MARRIAGE Intolerance of the 'Yes' campaign for all to see

EUTHANASIA Medical murder: three historical cases

INTERNATIONAL AFFAIRS Gallant Taiwan survives alone in the bitter sea

SAME-SEX MARRIAGE Prepare for apologies in a generation's time

SAME-SEX MARRIAGE A reflection on the use and abuse of the thought of the Angelic Doctor

MUSIC Stupendous talent: What to do with all that ego?

CINEMA Trollhunters: Guillermo del Toro's TV fantasy

BOOK REVIEW Debunking the 'harmless' tag

HUMOUR

EUTHANASIA Victoria's death bill: questions that need answers

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GENDER POLITICS
Does biological sex matter?


by Terri M. Kelleher

News Weekly, October 7, 2017

In 2013, the federal Sex Discrimination Act (SDA) was radically amended. The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 was to give effect to the then Labor government’s commitment to introduce new protections against discrimination on the basis of sexual orientation and gender identity. It also introduced a separate ground of discrimination on the basis of intersex on the reasoning that people who are intersex face many of the same issues that the introduction of the ground of gender identity sought to resolve.

“Sexual orientation” was defined as meaning a person’s orientation towards persons of the same sex, persons of a different sex or to persons of the same sex and of a different sex.

Attraction to persons of the same sex is obviously homosexual. Attraction to persons of the opposite sex would be heterosexual. And attraction to persons of the opposite and of the same sex would mean bisexual. However, the introduction of the words “a different sex” instead of “the opposite sex” implies that there are more than two sexes.

“Different” here means two or more that are not the same. This is non-binary. The amendments were not just introducing homosexuality, lesbianism and bisexuality as protected attributes. They introduced legal recognition of non-binary sexuality: that is, that there are more than two forms of human sexuality, not just male and female.

Then “gender identity” was defined as “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”. A person may identify as neither male nor female, but as a socially constructed, self-chosen gender identity. Tumblr and Facebook offer numerous possible gender identities to choose from. And the Safe Schools program identifies 13 gender identities a person can identify as.

So “different sex” takes on a new meaning when read in this context. Sexual orientation can be read as not only attraction to the same sex or the opposite sex or towards the same sex and the opposite sex, but as also including orientations between persons based on their socially constructed gender identities.

Most of the debate at the time was focused on the proposal to remove the religious exemption for religious bodies “in connection with the provision … of Commonwealth-funded aged care”. But this was a distraction from the main event, which was the introduction and legal recognition of definitions of “sexual orientation” to include non-binary sexual orientations and of “gender identity” as socially constructed and self-chosen. The focus should have been on what this means – a redefinition of human sexuality.

Is this putting it too high? Well, the 2013 amendments also repealed the definitions of “man” and “woman”. So, effectively, the amendments substituted non-binary “sexual orientation” and socially constructed, self-chosen “gender identity” for binary man/woman biological sex. This amendment was little commented on. The Explanatory Memorandum accompanying the bill stated that the definitions of man and woman were repealed to ensure they were not interpreted so as to exclude transsexuals: that is, men and women who have changed to the opposite sex from their birth sex. But a person who transitioned to the opposite sex already had the right to have their birth certificates changed to reflect that opposite sex. The amendments were not necessary to achieve this.

So, because some people choose to seek to change their sex, and because some people self-identify with a gender identity that is neither male nor female, the very definitions of man and woman were erased from the act. Arguably, sex, male and female in the SDA no longer refer to biological sex, but to persons who identify as male or female by the “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”.

Government guidelines

After the amendments became law the Attorney-General’s Department issued the Australian Government Guidelines on the Recognition of Sex and Gender (the Guidelines) to ensure compliance with the amendments.

The Guidelines require that all federal government documents – including passports, taxation forms, census forms, Medicare forms – give people the option to select M (male), F (female) or X (Indeterminate/Intersex/Unspecified) as their sex identifier.

The X category refers to “any person who does not exclusively identify as either male or female: that is, a person of a non-binary gender or as opposite to their sex at birth. People who fall into this category may use a variety of terms to self-identify.”

Indeterminate refers to “someone whose biological sex cannot be unambiguously determined or someone who identifies as neither male nor female”.

The Guidelines say that, for its purposes, “sex refers to the chromosomal, gonadal and anatomical characteristics associated with biological sex”. However, the Guidelines also say that, “although sex and gender are conceptually distinct, these terms are commonly used interchangeably, including in legislation”.

Repealing the definitions of “man” and “woman” as members of their respective sexes has left the meaning of “sex” ambiguous.

What does it all mean?

In accordance with the Guidelines, a person’s sex/gender is whatever sex/gender that person identifies as, and can be changed on government documents. A person can change their gender on:

Passports: Fill out a Declaration: Gender change in travel document to Male, Female, X (Indeterminate, Unspecified, Intersex).

Driver’s registration forms: for example. WA Department of Transport Change of Personal Details allows a person to choose “either M (male), F (female) or X (if you do not identify as either male or female)”.

In the ACT and South Australia, a person can change their sex on their Birth Certificate to Male, Female, Indeterminate, Unspecified, Intersex without medical intervention. A Statutory Declaration from a doctor or psychologist that the person has received “appropriate clinical treatment” is sufficient.

A person can socially change their sex to another gender identity, meaning “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”. For example, a man wearing women’s clothes, makeup and walking like a woman can legally identity as a woman.

Children can transition gender even while still at school by socially transitioning: that is, wearing the clothes (including school uniform) of the opposite sex, adapting their hairstyle and using the toilets, showers and change rooms of the opposite sex. This is already in the policy guidelines of the NSW, Victorian, SA and Queensland education departments.

Does it really matter?

Are transgender (gender-fluid) laws, such as the SDA and the ACT and SA Births Deaths and Marriages Registration Acts, erasing biological men and women from the law? Arguably yes. And if so, they not only erase the biological reality of being heterosexual, man and woman, but also the biological reality of being gay, lesbian, bisexual. Homosexuals do not deny the biological reality of being male; lesbians do not deny the biological reality of being women.

Heterosexuals are only recognised in these laws by their gender identity, their appearance and mannerisms, and so on, not because they are biologically male or female. Gays and lesbians are also only recognised by their appearance and mannerisms, and so on, not because they are biologically men or women who are attracted to their own sex.

Does it really matter? Well the changes to the Births Deaths and Marriages Acts in the ACT and South Australia allow a biological man to socially identify as a woman without any medical intervention and change his sex to female on his birth certificate.  He could then apply as a woman, under affirmative action policies, for pre-selection for a seat in parliament or for promotion in the workplace, or for a women’s education scholarship. Where does this leave affirmative action policies for women?

He could seek entry to women-only accommodation or to a women’s refuge. In Victoria in 2007 Hanover Welfare Services Ltd had to seek an anti-discrimination exemption before VCAT when a male who identified as a female was accommodated in a women’s-only accommodation service: “The person behaved inappropriately and walked naked within the accommodation facility displaying male genitalia. The women accommodated in the facility felt great trauma and distress because of this, resulting from their past experiences and fear.”

Men identifying as women have been accommodated in women’s prisons. Maddison Hall (born Noel Crompton), who was convicted of shooting and killing a female hitchhiker in 1987, began hormone treatment in prison and was transferred to a women’s prison. It was alleged he raped a female prisoner who in the event refused to press charges. He was transferred back to a male prison.

In 2016 the Tasmanian Equal Opportunity Commission (TEOC) released a discussion paper, “Legal recognition of sex and gender diversity in Tasmania: Options for amendments to the Births, Deaths and Marriages Registration Act 1999”. The Women’s Liberation Front (WoLF) expressed concerns over the rights of women in prison.

It wrote: “Women’s prisons are spaces in which women are confined and unable to escape unwanted attention from males. … Male prisoners in Western countries are using human rights laws successfully to gain access to transgender treatment at public expense in prison, and the right to then transfer to the women’s estate. These men are often precisely those who are most violent and dangerous to women’s safety, having been convicted of grave crimes including the murder of women … there seems to be no acknowledgement here of the … serious and pressing right of women to avoid being compulsorily housed with violent men.”

After the 2013 amendments to the SDA, a “gender X” category was introduced by the Australian Defence Force (ADF) under the Guidelines for people who do not exclusively identify as either male or female and who may use a variety of terms to self-identify. The ADF is currently considering the need to seek an anti-discrimination exemption to the SDA “due to the unique operational requirements of the military service”.

So, there are very practical and serious reasons why biological sex matters.

Do Australians really want to abolish the biological reality of men and women?

 

And yet ...

All gender-fluid (transgender) terminology is defined against biological, binary, male and female sex. So even if everyone is on a spectrum of male-to-female we are still defined against binary male and female. In which case, either we are all trans or nobody’s trans.

As Rebecca Reilly-Cooper, a political philosopher at the University of Warwick in the UK, says: “The logical conclusion of all this is: if gender is a spectrum, not a binary, then everyone is trans. Or alternatively, there are no trans people. Either way, this a profoundly unsatisfactory conclusion.”




























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