CHAPTER ONE

Inquiry into Sexuality Discrimination

CHAPTER ONE

INTRODUCTION

History of the Reference

1.1 The Sexuality Discrimination Bill 1995 was developed by the Australian Democrats Party, particularly the then Senator Sid Spindler (Victoria). At the introduction of the bill into the Senate on 29 November 1995 Senator Spindler's second reading speech outlined the major reasons for the development of the bill. These included:

that people receive equal treatment in areas governed by Commonwealth law and are protected against discrimination on the grounds of their sexuality or their transgender identity;
that no special rights are developed for people of transgender status or non-heterosexuals but that they have rights equal to those available to others;
that there be protection for people who are going through a gender re-assignment process 'or identifying as transsexuals'. [1]

1.2 Senator Spindler acknowledged the concerns of some members of the community by stating that the bill did not represent an attack on marriage; did not encourage paedophilia; and did not seek to give to the non-heterosexual community rights more extensive than those available to others. It sought only to ensure that people had equal access to rights, and that they were not discriminated against in a number of areas, primarily those under Commonwealth control. [2] Areas of discrimination included superannuation and insurance, employment, education, industrial relations, the provisions of goods and services; protection against vilification was also seen as essential.

1.3 The development of the bill was based on the premise that the Commonwealth had power under the external affairs power of the Constitution to develop legislation which would implement the provisions of international treaties or conventions. A further premise was that the major international covenant - the International Covenant on Civil and Political Rights (ICCPR) - was concerned with the right not to be discriminated against on the basis of sexuality and transgender status. [3]

1.4 The Bill was referred to the Senate Legal and Constitutional References Committee on 30 May 1996. [4] It was originally to report by the first sitting day in March 1997. Given a substantial increase in the workload of the Committee during early 1997, further extensions were granted to 2 June 1997, [5] to 30 October 1997, [6] and to the last sitting day of 1997. [7]

1.5 The Committee received 436 submissions, and these are listed at Appendix 1. It held nine public hearings, in all States and Territories except the Northern Territory, in the period 6 August to 22 October 1996. Persons giving evidence at these hearings are listed at Appendix 2.

Terms of Reference

1.6 The following report deals with each of the terms of reference by considering them in a specific chapter or section of a chapter or over several chapters, as the case may be. The first part of the first term of reference is 'the need to protect Australian citizens against discrimination and vilification on the grounds of their sexuality or transgender identity'. This is a complex issue dealing with the identification of discrimination and vilification expressed against two distinct groups of people in a wide range of areas. It is considered especially in Chapters Two, Five and Six.

1.7 The second part of the first term of reference is to consider the need for protection against discrimination and vilification ' with particular reference to Australia's international obligations in relation to sexuality discrimination and transgender identity and the action required to meet those obligations.' The international context of the debate is discussed in Chapter Three, which also examines the basis of power for the Commonwealth to develop anti-discrimination legislation. The issue of the action required to meet those obligations is also discussed, in Chapter Two. Chapters Five and Six outline some of the issues that arise in respect of anti-discrimination legislation and identify some areas where change may be needed in order to meet stated objectives of the legislation. Reference is made especially to issues which are not covered by the legislation and the concerns expressed by some groups that the legislation would not address matters of most concern to them.

1.8 The second term of reference is 'Measures which need to be taken to remove any legislative and administrative provisions which are currently discriminatory on the grounds of a person's sexuality or transgender identity'. It has been argued by some witnesses that the limitation of the legislation to Commonwealth legislation means that some important issues will not be addressed, and these concerns are referred to as they occur in Chapters Three to Six. The specific problems with existing legislation within scope are especially considered in Chapters Five and Six.

1.9 The third term of reference is 'The extent to which current legislation at a State level addresses discrimination on the grounds of sexuality or transgender identity and the extent to which Commonwealth legislation should take account of these provisions.' State and Territory anti-discrimination legislation is considered especially in Chapter Four. The benefits and disadvantages of various terminology; groups which are excluded or have limited coverage; areas of exemptions and the effect of these, are also examined in Chapter Four. Problems that have been identified in State and Territory legislation are discussed in the consideration of Commonwealth anti-discrimination legislation in Chapter Five and also in Chapter Six.

1.10 It is noted in Chapter Six that although Commonwealth anti-discrimination legislation will take precedence over any incompatible State anti-discrimination legislation, it will not affect other State legislation. Therefore it is possible for State legislation to circumvent the operation of aspects of Commonwealth anti-discrimination legislation.

1.11 The fourth term of reference was: 'the appropriate scope of Commonwealth sexuality discrimination legislation and, in particular, the need for provisions including, but not limited to, the areas of:

(a) public education;

(b) appropriate exemptions;

(d) remedies;

(e) the availability of class actions; and

(f) review of the legislation.'

These matters are considered in Chapter Five in particular.

1.12 The final term of reference concerns 'The extent to which the Sexuality Discrimination Bill 1995 effectively addresses the issues of sexuality and transgender discrimination and vilification and the nature of any amendments required to make it more effective.' These issues have been considered inter alia throughout the report; the extent of amendments, however, is restricted by the bill being limited in effect to Commonwealth legislation.

Terms and Definitions

1.13 One of the major difficulties in developing legislation which meets specific needs of groups of people is that the individuals affected by current discriminatory practices are often difficult to define and may differ substantially from other groups of people who are also discriminated against on the basis of sexuality or gender identity.

1.14 Not to acknowledge this fact is to consider all members of non-heterosexual groups or all persons of some transgender status to be indistinguishable and to be more easily classified according to their sexual orientation or their preferred gender identity than by any other feature.

1.15 The variety of response to the Sexuality Discrimination Bill 1995 and the technical difficulty of providing adequate protection to some groups [8] requires an acknowledgment of differences and some acknowledgment of preferences in terminology. This is not without problems, and it is acknowledged that the term non-heterosexual, although intended to be a shorthand means of referring to people whose sexual orientation is other than exclusively heterosexual, may feel they are being defined against the norm of heterosexuality- 'heterosexuals always seem to be ranked first in terms of the hierarchy that is created judicially and legislatively, and then we sort of clump homosexuals into one category.' [9]

1.16 As with other groups in society, there are differences within the wide category of people termed homosexual, bisexual or transgender. These differences concern status, the validity or otherwise of other people's sexual orientation or gender identity and the extent to which various rights should be developed or extended to all members of society. Political, socio-economic and other factors have shaped people's experience and influenced their expectations and their attitudes towards others, and these were an important part of their evidence.

1.17 A number of issues were identified relating to terminology. These went beyond words or phrases used to describe individuals or groups, having to do more with the status of sexuality or gender, or with the means by which previous inequities could or should be redressed.

Homosexual and Lesbian

1.18 In the current draft of the Sexuality Discrimination Bill 1995, the term 'homosexual' is used to mean both male and female homosexuals, or gays and lesbians. As noted by the author of the bill, former Senator Spindler, the term legally applied to both. [10]

1.19 Although it was acknowledged that the term was often used as a form of shorthand and meant to encompass both male and female, [11] there was considerable discussion as to whether the word 'lesbian' should be specifically included in the bill. [12] A majority of persons commenting on this issue supported inclusion, believing that a failure to mention 'lesbian' could reinforce the belief that males were dominant in homosexual life and that women were ignored or invisible. [13]

1.20 In particular it was stated that the nature of Commonwealth anti-discrimination legislation - which has generally been less formal and legalistic - effectively demanded terminology which increased access. Lesbians may believe that any legislation which mentions 'homosexual' but not 'lesbian' is not providing coverage to them: [14]

'I take the point that legally homosexuality includes lesbians but I am not sure that that sort of distinction is very useful when you are talking about legislation which is aimed at providing an informal dispute resolution mechanism, something that can be initiated by people by themselves, perhaps with some help from a member of the commission or the appropriate body. But generally it is supposed to be an accessible piece of legislation.' [15]

1.21 While there was considerable support for inclusion, the Australian Law Reform Commission advised that the inclusion of the word 'lesbian' could be tautologous insofar as the word 'homosexual' was understood to refer to both men and women. [16] However, it is possible to accommodate this concern while still meeting the identified needs of others.

Recommendation 1

That the term lesbian be included in the Sexuality Discrimination Bill, as follows:

Clause 5, Definitions

'homosexuality'

'homosexuality' means the identity of being gay, lesbian, or homosexual.

Bisexual

1.22 Bisexual people are also invisible relative to gays and lesbians. They are not specifically mentioned in Queensland and Victorian legislation, but bisexual activity is legal in both states since heterosexual and homosexual activity is legal. Bisexual people are not referred to in New South Wales legislation and the legislation there does not prohibit discrimination against people on the grounds of their bisexual status or, indeed, heterosexual status. [17]

1.23 The Sexuality Discrimination Bill 1995 includes 'bisexuality' in the definition of 'sexuality'. However, this in itself does not prevent some forms of discrimination against bisexuals, such as exclusion from sexuality-specific services (for example, gay or lesbian health services or clubs - exclusion from 'heterosexual' or mainstream organisations is not permitted). If specific needs of bisexual people are identified and these are not met by either heterosexual or homosexual services, the affirmative action provisions of the legislation could also be of assistance through allowing the development of specific organisations. [18]

1.24 However, any discrimination experienced by bisexual people could also be limited by requiring all publicly funded services such as health, legal and educational services to provide services to bisexual and transgender persons. [19] Sexuality-specific social organisations could be exempt.

Recommendation 2

All organisations receiving Commonwealth funding must provide access to services on equal terms to bisexual persons, and to transgender persons.

1.25 Related issues, such as harassment, are considered below at Chapter 2 [20] and at Recommendation 1 of Chapter 2 and at Chapter 4. [21]

Asexual/Asexuality

1.26 There was little reference to asexuality in submissions or oral evidence, and no indication that people were discriminated against on the basis of having no apparent sexual orientation. If all other forms of legal sexual orientation are to be listed in the definitions of the Sexuality Discrimination Bill, then asexuality should also be added. [22]

Recommendation 3

That 'asexuality' be added to the definition of sexuality in the Sexuality Discrimination Bill.

Clause 5, Definitions

'Sexuality means heterosexuality, homosexuality, bisexuality and asexuality'.

Heterosexuality

1.27 Many of the witnesses to the Committee noted that the heterosexual was the standard against which all other sexualities were evaluated, and that society was structured to favour heterosexuals and heterosexual families. [23] In this world view, the non-heterosexual often felt part of a different society:

'... often when a person declares themselves to be lesbian or gay ... it is very much a statement of personal identity, almost akin to a statement of one person's particular culture.' [24]

1.28 The heterosexual society appeared to perceive the non-heterosexual solely in terms of sexual identity; and while the non-heterosexual person perceived their sexual orientation as only a part of their being, the actions of others could also lead to orientation influencing a substantial part of life:

'... stigmatisation can be a problem in two ways. For the homosexual individual the acceptance of the stigma will mean its incorporation into a negative self-identity. For the wider community, the difference in treatment under the law can create a perception of an underlying cause and justification for homosexuals to be treated in a different and unfair way in all forms of interaction, and not just those referred to in legislation.' [25]

1.29 This was seen by some as being reflected in the Victorian and the Queensland anti-discrimination legislation which used the term 'lawful sexual activity' rather than homosexuality or heterosexuality.

Lawful sexual activity

1.30 Some people objected to the term on the ground that it necessarily included heterosexuality and thereby did not acknowledge the long-term history of discrimination experienced by non-heterosexuals. [26]

1.31 Some disliked the phrase 'lawful sexual activity' [27] or the emphasis on sexual activity because it appeared to define people by their sexual orientation and no other factor.

'Having sex and being gay are two separate issues, though. Lawful sexual activity refers to the sex act, not to identity or belonging to a group.' [28]

1.32 For others, there was also a belief that the use of the word 'lawful' somehow suggested that some of the activity was criminal:

'... there is an inference that the sexual activity gay men and lesbians participate in is in some way illegal. If you look at the fact that it was not decriminalised until 1981 in Victoria and 1984 in Sydney ... then it has sinister connotations about how we conduct our lives.' [29]

1.33 This approach, it was believed, led to an over-emphasis on sexual activity in consideration of individuals or groups, even though the same approach was not employed in assessing the suitability of other people for employment or membership of clubs or participation in cultural, religious or sporting activities:

'Very often the recipient party, upon hearing [that a person is gay or lesbian] takes it as something like a simple statement of sexual desire, or in the case of religious bodies, an intention not to follow certain rules or to be out of step with traditions...' [30]

1.34 Although anti-discrimination legislation in itself sometimes appears to emphasise people's sexuality or some other ground of discrimination, [31] one of the intended outcomes of the legislation is a greater awareness of people as individuals and a reduced inclination to categorise people by one feature rather than their whole being. The term 'lawful sexual activity' is not used in the Sexuality Discrimination Bill 1995.

1.35 The legislation should also address the fact that many people felt excluded from the operations of society if their sexuality was seen as undesirable. This issue could be dealt with to some extent by the processes established through the legislation which acknowledged a need for discussion and resolution of issues. In this way both parties could explain the basis of action and could do this by acknowledging the need for discussion:

'... often when a person is dismissed from or refused a position within a religious body there are enormous levels of negative feeling because, rather than just being simply a job, it can be like exclusion from the whole religion....We look for some process wherein these considerations can be discussed so that a more just outcome either way can be achieved.' [32]

Heterosexuality as part of 'Sexuality'

1.36 As is discussed in greater detail below, [33] many witnesses were concerned that 'heterosexuality' is currently included in the definition of 'sexuality' in the bill (and many others were concerned that it should remain). The major reason for concern was the belief that the bill would be providing protection to those who did not need it, would make it more difficult and expensive to get special exemptions or exceptions for gay or lesbian organisations and services, and might lead to frivolous complaints.

1.37 While recognising that heterosexual persons are less likely to be discriminated against, and less likely in particular to be verbally and physically attacked and abused, on the grounds of sexuality, the Committee has agreed that 'heterosexuality' be retained in the definition of sexuality. The reason for this is that it is important to establish general principles of formal equality. Special-needs groups may be identified and seek positive discrimination measures to overcome past disadvantage. [34] Clause 27 allows groups to meet 'special needs' and establish sexuality or gender specific services, which could include accommodation, specific events or social clubs. Clause 31 allows for applications for exemption from the application of provisions in Divisions 1 and 2 of the legislation. This would allow sexuality-specific or gender-specific organisations to be exempt from providing that service to others. Although some groups believed that having to follow these processes would be time-consuming, the Committee considers that the process need not be complex and will require all organisations to establish sound grounds for exemptions or special services.

Recommendation 4

That 'heterosexuality' remain part of the definition of 'sexuality'

Orientation or Preference

1.38 The terms ' sexual' orientation' and 'sexual preference' are not used in the Sexuality Discrimination Bill 1995. Both terms are problematic in that they suggest that sexuality is a given factor or a matter of choice respectively, [35] and this is not an issue the Committee has been concerned with in detail - it has preferred to consider the best ways of addressing an existing situation regardless of the causal factor or factors.

1.39 Although the term 'sexual preference' is used in the Human Rights and Equal Opportunity Act regulations [36] and in other legislation, [37] this does not commit subsequent legislation to use of the same term.

Transgender

1.40 The current draft of the Sexuality Discrimination Bill 1995 refers to 'transgenders', and includes within this group transsexuals, although it does not define transsexuals.

1.41 Other legislation, especially that of South Australia and the Northern Territory, also refer to transsexuals, a term which may be intended to cover all transgender persons. South Australia includes the term 'transexual' under 'sexuality'. [38] Transgender people are excluded from coverage in Victorian and Queensland legislation which deals only with sexuality. [39] New South Wales legislation provides extensive coverage for transgender people, defining a transgender to be:

1.42 Section 38A ' a person'

(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.

1.43 The New South Wales legislation differentiates between a transgendered person and a transsexual by naming the latter 'recognised transgender person'. [40] Transsexuals or recognised transgender persons are specifically protected in respect of their status as a man or a woman through the operation of Section 38B (1) (c) of the New South Wales legislation. [41]

1.44 There were two main issues concerning the issue and definition of transgender persons in the Commonwealth Sexuality Discrimination Bill 1995. The first of these was whether the word 'transgender' should be added to the title of the bill. The second, more important, issue was the extent to which the current definition of transgender in the bill was too broad or not sufficiently precise. A related issue was whether 'transsexuals' should be more clearly defined.

1.45 As an integral part of the discussion as to the powers of the Commonwealth to develop legislation relating to sexuality and gender status [42] the Commonwealth Attorney General's department raised the issue of the meaning of 'transgender'. The department believed that, regardless of the extent to which one could claim either inclusion of transgenders in the International Covenant on Civil and Political Rights (ICCPR) or some level of international concern at the situation of transgenders, [43] the current definition of transgender was too inclusive. It could be deemed to cover a range of people such as tranvestites who would be hard to perceive as having a stable identity. Without some stability or certainty it was difficult to determine a person's gender status: [44]

'This is a very broad definition, and it would seem to cover not only persons who live permanently in a gender role opposite to that corresponding with their biological sex at birth, but it also seems wide enough to cover cross-dressers. We would have some doubts whether, from a constitutional point of view, there would be support under the external affairs power for the application of the bill to that category of persons, as opposed to those who have, in some more permanent way, adopted a different gender role.' [45]

1.46 The definition currently used is:

'a person of one sex who

(a) assumes any of the characteristics of the other sex, whether by medical intervention (including a reassignment procedure) or otherwise; or

(b) identifies himself or herself as a member of the other sex; or

(d) attempts to be, or identifies himself or herself as, a transsexual.' [46]

1.47 The word 'transsexual' is not itself defined. This can also lead to confusion in that it is not clear how many people, if any, wish to be seen as transsexual rather than as a man or a woman. Those who are attempting to become a transsexual could be described as transgender or as pre-operative transsexuals, although it would be more accurate to say that these people are 'intending' to become a transsexual.

1.48 There appeared to be a distinct hierarchy in the transgender world with transsexuals being at the highest end of the scale. [47] Transsexuals were classed as persons who had undergone a surgical and/or medical (drug based) change to become more obviously their preferred gender or at the least less obviously their biological gender. [48] Although some transsexuals disavowed the claim that they were more 'real' than persons who were at some other stage in a transgender process, there did appear to be a belief that those who had physically changed were more 'genuine.'

1.49 This ranking was not uniformly accepted, with many witnesses suggesting that surgery was only a last step, although various hormonal regimes appeared standard for those who wished to pass as of their preferred gender even if they did not have surgery. [49] The more important process was seen as becoming comfortable with the identity and being able to live it:

'The big change is the cultural change ... your day to day existence is far more important ... For some people, I think [the operation] is important. But for most transgenders, that is the minor aspect. It is the cultural ways of relating to everybody they meet every day.' [50]

1.50 In this area as in others there was some concern for certainty and this to a degree was part of a desire to approve a medical model of gender change and, possibly, social models which accept only two genders and which prefer these genders to be stable. Those who advocated certainty believed that surgery was a definitive statement of wish since it was irreversible, [51] although this would seem to confuse certainty with inability to change a physical feature:

'[the definition of transgender] would enable ... persons to move from one persona to another, for whatever reason, and to move back again, and to do so ... in both directions any number of times. In other words, there is no requirement, either of bona fides or of some degree of permanency or commitment. Commitment is what I find with post-operative transsexuals, who have displayed a considerable degree of commitment in having undergone surgical intervention by having their sexual characteristics changed, to the utmost degree possible, by the use of surgical and medical means.' [52]

1.51 However, the issue was not only one of certainty per se, but rather one of the validity of a change of status:

'One could seek to qualify that by putting in something about 'on a permanent basis', 'in a stable, consistent manner' or 'over a period of time ... certainly some sense of permanency would seem to be a helpful element in terms of administration of such a law...' [53]

1.52 From the evidence received, much of the definition of transgender is acceptable apart from category (a) and, possibly, the use of the word 'or' rather than 'and' at the end of each category. All the other sub-clauses, especially when combined rather than separate, describe those whose identity is generally long-term or well established. The current definition may be seen as including people who either do not identify as a particular gender or seek to live as a member of that gender, whose membership of a particular 'gender' is often transitory and not part of an established personal identity, and whose need (if any) is possibly for protection from discrimination on the basis of a particular sexual preference.

Recommendation 5

That a more precise definition of 'transgender person' be developed for the Sexuality Discrimination Bill 1995 to exclude from coverage persons who do not identify as, and seek to live as, a member of the sex opposite to their biological sex.

The suggested change is:

Clause 5, Definitions

'transgender person'

'transgender person means a person originally of one sex who:

(a) identifies and lives or seeks to live as a member of the other sex; and

(b) assumes the characteristics of the other sex on a full time basis or as much as is reasonable in the circumstances; and

Recommendation 6

That the Sexuality Discrimination Bill 1995 define the word 'transsexual' to mean a person who is undergoing or who has completed sexual re-assignment surgery.

The suggested change is:

Clause 5, Definitions

'transsexual'

'transsexual means a person who:

(a) has undergone, or is in the process of undergoing, a surgical re-assignment procedure, and

(b) who identifies and lives or seeks to live as a member of the sex to which he or she has been reassigned or seeks to be re-assigned.'

1.53 There was little if any objection to changing the title of the bill to include transgender people since the legislation itself also addressed this issue and made a clear distinction between sexual and gender issues. [54]'I see it simply as a discrimination bill. It deals with discrimination against different groups so why should they not be included in the one bill?' [55]

Recommendation 7

That the name of the bill be changed to: Sexuality and Gender Status Discrimination Bill 1997.

Other issues for transgender people

1.54 Transgender people also experience other problems, some of which can be addressed by legislation. These are not being perceived as a member of a couple; and the sexuality of a transgender person being ignored. [56]

1.55 The first of these problems has been addressed to some extent by the Sexuality Discrimination Bill 1995, although various changes have been recommended to improve coverage.

1.56 The difficulties in transgender couples being seen as a couple are primarily that:

one of the couple may be male and the other a pre-operative male to female transgender; in such cases, the couple would be considered a same sex couple, which is currently not accepted in several areas including Social Security legislation; and
even if same sex couples were recognised, the transgender couple may wish to be acknowledged as an opposite sex couple.

1.57 This issue could be addressed by allowing a variety of couples or partners to obtain legal status for various reasons including welfare benefits, insurance and superannuation. These matters have been addressed in the following report. [57]

1.58 The issue of the sexuality of transgender persons is only a matter of concern for legislation insofar as different sexualties may not be accepted by various groups within society, or by those who do not accept a specific sexuality being expressed by a transgender person:

'There are many transgendered people who actually identify as gay or lesbian. It becomes a complex issue for some people if someone who has been a man chooses to become a woman but still identifies as a lesbian.' [58]

1.59 Although education may assist in increasing understanding of a range of sexuality and gender issues, legislation may need to ensure that specific funding be allocated for some groups who may not obtain access to the funding or services available to mainstream gay and lesbian organisations. However, Recommendation 2 above is intended to provide access to services for transgender people as well as bisexuals, and Recommendation 1 of Chapter 2, relating to harassment, specifically addresses issues affecting transgender persons.

Terms used in Report

1.60 Various recommendations have been made in the report which would affect the meaning of various words used in the bill or would seek to vary the current meaning of some words and phrases in the bill. The following terms are used in the report:

asexual - the status of being an asexual person.

asexual person - a person who has no actual or apparent sexual orientation.

bixexual - the status of being a bisexual person.

bisexual person - a person attracted to both men and women, and/or who engages in both homosexual (gay or lesbian) and heterosexual activity.

gay- male homosexual.

homosexual - the status of being a homosexual person.

homosexual person - a person, male or female, whose sexual interest is primarily in persons of the same gender.

lesbian - female homosexual.

non-heterosexual - the status of being a non-heterosexual person.

non-heterosexual person - a person whose sexuality is other than exclusively heterosexual.

non-operative - a person who does not wish to align their psychological and biological selves through the means of surgery although they may use drugs to change the most obvious signs of their birth gender.

post-operative - a person who has undergone re-assignment surgery to become transsexual.

pre-operative - a person who wishes to have re-assignment surgery to become transsexual; this includes a person who may wish to, but cannot afford to do so or who cannot undertake such surgery for medical reasons.

re-assignment surgery - irrevocable surgery which removes the physiological sexual characteristics a person has been born with and replaces these with ones approximating the physiological characteristics of the preferred gender; (note - this differs from the current definition in the Sexuality Discrimination Bill which refers to a re-assignment procedure and includes a medical procedure which would cover drug treatments).

transgender - the status of being a transgender person.

transgender person - a person who identifies on a consistent basis as a person of the gender opposite to that which they were born, whether or not they have undergone medical or surgical treatment to assume the sexual characteristics associated with that gender.

transsexual - the status of being a transsexual person.

transsexual person - a person who has undertaken (or is undertaking) surgical re-assignment to correlate his/her psychological and biological gender.

Footnote:

[1] Hansard, Senate, 29 November 1995, p. 4126.

[2] Hansard, Senate, 29 November 1995, p. 4126.

[3] Hansard, Senate, 29 November 1995, p. 4126. The issues of the Commonwealth external affairs power, the extent of international obligations and the controversy concerning the nature of these obligations, are considered in Chapter 3.

[4] Hansard, Senate, 30 May 1996, p. 1381.

[5] Hansard, Senate, 10 February 1997, p.365.

[6] Hansard, Senate, 27 May 1997, p. 3782.

[7] Hansard, Senate, 2 October 1997, p. 7434.

[8] Especially transgendered persons - see below, Chapters 4 and 5.

[9] Evidence, Mr Christopher Kendall, p. 611.

[10] Evidence, Mr Sid Spindler, p. 245.

[11] Evidence, Anti Discrimination Board of New South Wales, p.110.

[12] Evidence provided by witnesses in Tasmania (Evidence, Tasmanian Gay and Lesbian Rights Group, p. 376) suggested that lesbians were not included in the Tasmanian Criminal Code. They are not mentioned specifically but then nor are homosexual men, the terms used being 'any person' who 'has sexual intercourse with any person against the order of nature', 'consents to a male person having sexual intercourse with him or her against the order of nature' and 'any male person' who 'commits any indecent assault ' ...with 'another male person'. Tasmania Criminal Code Act 1924, Sections 122 and 123.

[13] Evidence, Ms Chapman; p. 273

Evidence, Federation of Community Legal Centres p. 327;

Evidence, Gay Men and Lesbians Against Discrimination, p. 337;

Evidence, Mr Christopher Kendall, p. 611.

[14] Evidence, Gay and Lesbian Rights Lobby; p. 184.

Submission, Feminist Lawyers, Vol. 8. p. 1639.

[15] Evidence, Ms A. Chapman,. p. 283

See also Evidence, Gay Men and Lesbians Against Discrimination , p. 339.

[16] Submission, Australian Law Reform Commission, Vol. 9, p.2175.

[17] See below, Chapter 4.

[18] See Chapter 4.

[19] See Paragraph 1.58

[20] Chapter 2, Paragraphs 2.36 - 2.41

[21] Chapter 4, Paragraphs 4.103 - 4.105

[22] Evidence, Federation of Community Legal Centres, p. 326.

See also Evidence, Mr Christopher Kendall, p. 612.

[23] See Chapter 2, Paragraphs 2.59, 2.66, 2.68 -2.70.

[24] Evidence, Gay Men and Lesbians Against Discrimination, p. 336.

[25] Submission, Gay and Lesbian Welfare Association Inc., Vol 11, p. 2465.

[26] See below, Chapters 2 and 4.

[27] Submission, Associate Professor Tahmindjis, Vol. 4, p. 688.

See also below Chapter 2, Paragraph 2.83

[28] Evidence, Australian Council of Trade Unions, p. 317.

[29] Evidence, Gay Men and Lesbians Against Discrimination, p. 336 and see also p. 338.

[30] Evidence, Gay Men and Lesbians Against Discrimination, p. 336.

[31] See Chapter 4, and Chapter 5, Paragraph 5.59.

[32] Evidence, Gay Men and Lesbians Against Discrimination, p. 336.

[33] See Chapter 4.

[34] There is, further, no evidence to suggest that people claiming to be discriminated against on the basis of heterosexuality are suggesting that this discrimination is caused by homosexuals. Systemic discrimination may occur on the basis of sexuality or marital status and arise from institutional prejudice rather than any bias by homosexuals. See for example, Evidence, p. 682 Queensland Anti Discrimination Commission.

[35] See, for example, Submission, Ms Sue Guiness, Vol 2, p. 225.

[36] Evidence, HREOC, pp. 135-136.

[37] See Chapter 6.

[38] See Chapter 4.

[39] See Chapter 4.

[40] Anti Discrimination Act 1977, Section 38A. A 'recognised transgender person' is defined in the legislation as ' a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1955 or under the corresponding provisions of another Australian jurisdiction.'

[41] See Chapter 4, Paragraphs 4.95-4.96.

[42] These issues are discussed in Chapter 3 of this report.

[43] See Chapter 3, Paragraphs 3.24-3.25

[44] See Paragraph 1.50 and also Chapter 4 and 5.

[45] Evidence, Commonwealth Attorney General's department, p. 6 .