Australian policies diverge on gender identity law

by on July 24, 2012  •  In Health, International, Transgender
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This month Australia has taken one step forward, one step back in the area of gender identity law. Not surprisingly, the backward step was at the expense of a doubly marginalized group: trans people in prison.

On July 5th the Queensland Civil and Administrative Tribunal ruled that transgender prisoner Thalia Sinden (identified in official documents by her former name, Derek) does not have the right to receive estrogen treatments while incarcerated even though she is receiving anti-androgen medication. Sinden claimed that the Department of Corrective Services discriminated against her because of her gender identity, arguing that a prisoner with a different medical condition would receive full treatment for his or her ailment.

The Tribunal, however, upheld the Department’s policy related to prisoners with Gender Identity Disorder (GID), namely that the Department would continue treatments that began before the prisoner was incarcerated (in this case, the medication to block male hormone production) but could, at the prison administration’s discretion, choose not to provide treatments that are requested after incarceration (in this case, female hormone therapy). The Tribunal chose not to take issue with the Department’s problematic reasoning, which boiled down to two assertions: that a prison is not the ideal environment in which to undergo the male-to-female transition, and that Ms. Sinden’s transition would interfere with the “good management and security of the prison.” Although it’s cold comfort, Ms. Sinden is eligible for parole in 2013.

Four days later, on July 9th, the Australian Capital Territory (ACT) Law Advisory Council issued a report called Beyond the Binary: Legal Recognition of Sex and Gender Diversity in the ACT. (The ACT is a 910 square-mile area containing Canberra, the Australian capital.) The report, which was commissioned by the ACT Attorney-General, contains recommendations to the territorial government about the identification and legal recognition of transgender and intersex individuals in the Territory.

In a significant move toward greater transgender rights, the report recommends that transgender persons need not complete sex assignment surgery to change their gender on official documents.

The recommendations regarding intersex persons were more problematic, particularly the suggestion of an “intersex” category on birth certificates and other official documents. Organisation Intersex International Australia (OII) has issued a statement explaining its opposition to these recommendations. Central to their position is a concern about the creation of a third sex to which individuals would be assigned without their consent. 

The ACT’s Legislative Assembly will need to look beyond these recommendations to create a truly inclusive law, but placing gender identity on the agenda is a positive step.

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