From the Commissioner - When history shouldn't matter

News story
The 17 May is IDaHOBIT day, the International Day against Homophobia, Biphobia, Intersexism and Transphobia, so for this month I would like to reflect on how the Equal Opportunity Act 1984 impacts particularly on transphobia.
John Byrne headshot Ebulletin

The Equal Opportunity Act 1984 (the Act) was amended in 2000 to include the ground of gender history.

As the name indicates, the unlawful discrimination focuses on a person having transitioned from one gender to another, not the person’s gender identity, which is something that happens before, during and after transition.

To access the gender history ground of the Act, a person must meet a set of criteria to satisfy the Gender Reassignment Board they have changed their gender enough to obtain a Gender Reassignment Certificate.

Without the certificate, that person cannot access the gender history protections of the Act.

In 2011 two transgender men, born as women, successfully challenged the State of Western Australia in the High Court because the WA Gender Reassignment Board required the men to remove their female reproductive organs to receive a Gender Reassignment Certificate.

The High Court upheld the State Administrative Tribunal’s original decision that because the men had already undergone bilateral mastectomies, were receiving testosterone treatment, and were living as men they should receive the certificates.

The High Court decision did clarify some issues for those seeking a Gender Reassignment Certificate, however it remains that a person must undergo some sort of gender reassignment ‘procedure’ before they can receive it.

This means those still transitioning, who have not undergone any surgical procedure to change their gender, are not protected from discrimination under the Act at a time when they are extremely vulnerable to transphobia and discrimination.

This is especially so for young people transitioning gender as children are often unable to meet the requirements of the Gender Recognition Board to gain a certificate.

Transgender representatives have recently criticised WA’s outdated gender recognition processes in the media; however we must also consider doing away with outdated discrimination laws as well.

In its 2007 Review of the Equal Opportunity Act 1984 report the Commission called for the ground of gender history to be replaced by gender identity. This will also remove the need for a Gender Reassignment Certificate to access those provisions under the Act.

This remains a priority for the Commission.

The Law Reform Commission of Western Australia is now working on a review of WA’s Equal Opportunity Act, with a discussion paper likely to be announced soon.

In the Terms of Reference for the review, the Law Reform Commission mentions the introduction of grounds such as gender identity and intersex status.

According to the Telethon Kids Institute’s Trans Pathways survey, 48 percent of the 859 participating trans youths aged 14 to 25 had attempted suicide and 79 percent had self-harmed.  This can be partly attributed to discrimination.

Stronger policies and practises for the transgender young people has also received State Government support.

Education Minister Sue Ellery said schools could “do better” at providing a more “inclusive” environment for gender-diverse students.

We must do better by the transgender community so they can be provided with the same legal protections as their fellow Western Australians.

*Each year the Equal Opportunity Commission, together with the University of Western Australia hosts the Isabelle Lake Memorial Lecture to raise public awareness about transgender and gender identity issues.

This year author of Honeybee Craig Silvey will deliver the lecture.

Page reviewed 3 May 2021