Is the law equal for the transgender community?

(upbeat music) A listener, production. - Hi, I'm Amy Dale and I'm not a lawyer. But since working at the Law Society, I've met and worked with plenty of them. And I've also met countless people who need help, understanding the law, and more importantly, knowing how to find the right lawyer. That's why we've created this podcast to help make the law accessible for you, for me, for everyone. No jargon, no law speak, I promise. Just me diving into the most common legal problems to help you make the best decisions possible. Welcome to Lawfully Explained. When it comes to the ways of how the law can support the transgender community, there can be a lot of noise, a lot of outrage, and a lot of ugly politics. But there is one thing that is really important to remember, and that is that there is help available, there are resources available, and there are lawyers working every day to support members of the transgender community. And to that end, I'm really happy to be joined by Katie Green, who is a solicitor at the inner city legal center. Katie and her team work every day with members of the transgender community to help them stop falling through the cracks that can exist in the legal system. And we're also very happy today to be joined by Kavita Simasami, who is a lawyer, and also a member of the transgender community, who is going to share her lived experience with us today. So welcome to both of you. Katie, I want to begin by talking about the history of laws that have affected transgender people. What is the first example of a law that had an impact on the transgender community? In recent history, since the sort of gradual recognition of trans people as existing, we have a record from 1987 of trans woman Estelle, who was a model and dancer, and we think she was the first legally recognized post-operative trans person who was recognized with births, deaths, and marriages in New South Wales and given a certificate that affirmed her gender identity. What are some of the biggest changes that you've seen in recent history? The good news I think about birth certificates just about everywhere else in Australia, but for New South Wales and but for Western Australia, is that people of trans experience everywhere else are able to sort of self-identify their gender on their birth certificate documents. So that means you can go into the, you know, births, deaths, marriages, or equivalent office and say, I am a woman, I am proud, I am a man, I am proud, I am neither a woman or man, and they can put their name and their chosen, affirmed gender marker on their documents. You can't do that in New South Wales at the moment and this is changing. There's actually a big review of New South Wales anti-discrimination laws happening right now and what the ICLC and a lot of other activists and legal thinkers in this space will be saying is that this law has to go in New South Wales, this concept of recognized transgender person, which I don't like speaking about 'cause it's really quite crass and violent and revolting but it's basically about having two different medical professionals look at what's inside somebody's knickers and signing a form to confirm that their genitals line up with this adopt a gender identity and what modern social theory tells us and also what just the lived experience of lots of trans people tells us that what's inside someone's underpants is such a small part and such a small and irrelevant part of what makes up somebody's gender. So it's quite sort of boring and dry and convoluted the way that it's written in the legislation but that's currently the legal position in New South Wales. Katie, before the show we chatted a little bit about the different types of transition which was social, legal and medical. Are you able to briefly outline what those three mean and how they fit together? - Cool, okay, and I've got to acknowledge that I'm a person with cisgendered privilege so we are very lucky to have someone here that can speak to it from lived experience. So I'll start with legal transition which really I think is the least important in the hierarchy that legal transition is getting your documents up to date not being discriminated against in the workplace in some situations it involves family court orders that involve children. Medical transition is whatever medical steps a person may take or may not take to affirm their gender so that can be everything from puberty blockers to hormones to surgical interventions and surgical interventions can be a range of different procedures. A lot of trans people start with their face because of course that's what people in the world can see rather than what's in someone's nickers as I was speaking about before. And then of course there is social transition which I think is the biggest and most important and least tangible. So that's coming out to your family and to your friends, coming out at work, coming out at school, lots of trans people experiment with coming out online in safe spaces with groups of peers that they found. Maybe at school but not at home, maybe at home but not at school. Kaviza, I want to first of all thank you so much for coming on the show to share not only your professional expertise but also your lived experience. So thank you so much for joining us. I want to ask you about your journey over the past six months. Are you able to share the journey that you've been on since the start of this year? I think my journey would probably in a transgender sense probably start three to four years ago. So probably started sort of playing on makeup and that's not saying everyone plays around makeup is trans but for me that was my way of exploring my gender. And then I started performing as a drag queen and then I realized that I was really sad when I wasn't in drag. So I thought this has always been what I've known about myself that I've kind of denied and that aspect of my story is I think a common with a lot of trans people. I think a lot of trans people know from a quite young age not all the time and you don't have to always know but a lot of people I talk to do and I think because of family and cultural upbringing we tend to sort of suppress that. I was sort of changing my presentation on a day-to-day basis. My sort of fashion and presentation was sort of quote unquote androgynous. And I started HRT, Home and Replacement Therapy and came out as trans at that point to everyone. And then I was sort of on the fence about gender reformation surgery because really as Katie pointed out gender reformation surgery is by no means like necessary. Like I did have my gender reformation bottom surgery recently. A few people found out about it work and everyone has different levels of awareness of the transgender experience and some people who maybe weren't as aware of it were like, oh my god, but it must be so like life changing and amazing and I look exactly the same, you know, what's in my pants is not known to anyone, right? So it comes to show how much really the law should not focus on genital surgery and gonads and that sort of thing. - Kavita, are you able to talk me through some of the challenges that you faced around formalizing or legalizing your gender affirmation? - Like in the ACT, so I live in Canberra and in the ACT I change my gender sort of legally. So I got to recognize the certificate at the very start of my transition and that doesn't solve all the like legal transition issues. Like then you've got to call Medicare, you've got to call ATO and you've got to call your superannuation, you've got to call your bank, you've got to call your, there's so many. Like there's so many if you add up everyone, you know, and each one is a call where you call up and say hi, I'm blah, and at this point I had like trained my voice and they're just like, okay, so they're talking me and I'm like, actually I'm transgender and, you know, and so it's just an awkward conversation. - How much in going through this process did being a lawyer assist in terms of knowing your rights and knowing how to navigate systems and what did that make you feel about people who are going through the same experience but don't have that legal training that you do and sort of know roughly how these sorts of systems operate. - There's a few barriers here. The first one is not understanding the forms and the requirements and for so many people I've sent across like helpful links and forms and things like that but that's only one side of it. I think what we also know is that trans people have disproportionately suffer from a lot of anxiety and depression and there's a lot of negative mental health outcomes and I know so many trans girls who are too scared to put makeup on their face 'cause it's just very anxious. Like I've met so many trans people who don't like leave the house. They're too scared to like go and go to access Canberra and like try and update their documents. Like that is a whole thing that, you know, I'm fortunate enough in that I have the privilege of not having mental health that's as severe as some of my friends and people I know but that's another whole aspect to it. - Katie, you work in this area day in and day out and listening to Carita's experience with all the documents and other things that need to be done to formalize agenda affirmation. This must be something that you see all the time. - The two main things we talk about in our legal clinic is discrimination at school, at work or at home wherever and documents and we've started at the ICLC, particularly when clients aren't wealthy and guess what most trans people aren't because of all of the other intersecting problems that they have. So we've really started to offer clients when they come through wanting advice about updating their birth certificate and other documents. We'll fill out the form for you and we'll pay for it 'cause that's the other thing. In New South Wales, it costs $200. Every single time they have to update a document or go and, you know, medical care, it's really financially expensive to be trans. And, you know, again, since people, we just don't have that, you know, we just don't have those expenses. So we've started just with this simple little thing that's one tiny aspect of a trans person's life to say, we'll fill out the form and we'll pay for it for you. And then we really hope to do more of it and get the word out that we are supporting people with that kind of financial and, I guess, administrative aspect of legal transition. But there's a lot of other barriers even when we've tried to take those ones away. What sort of costs could someone be looking at when you say that that form alone is $200? So dollars, what cost could people be looking at? Yeah, well, I guess if you want to update your driver's license in your passport, and that's even just the money costs. But what costs on someone's time, spending hours on the phone to the bank or Centrelink or your super fund or, you know, a gosh, I mean, if you've got to get criminal record checks or working with children checks, which you so often do for employment, that's a whole other podcast, that one. The money cost, but also the time cost that trans people need to invest. And you can't just step away from work to do that sort of stuff, which is why I think we're starting to see a lot of progressive workplaces offering this gender affirmation leave and that theoretically would allow someone the time that it takes to do all of that horrible, boring, bureaucratic government, even when it's not about change. Do we all hate filling out that kind of paperwork in all of this? We all dread navigating these systems. It's the worst. Is there an option for people who don't identify as either male or female to not select a gender on legal documents? Yeah, so certificates of marriage don't have a gender on them, and that's kind of a real, that's sort of some of the amendments around the marriage act that are really cool, because we have all gender marriage now, and so genders don't matter, any more marriage certificates, passports, you can have MF, or I think an X marker, and there's a really exciting high court case, the case of Nory, and Nory is a Gadigal-based activist, and I say activist in many ways. They live in public housing and write this publication called the South Sydney Herald, and they're long. Oh, I've seen that, yeah. Nory's a very, very, and in fact, their bike is on display at the Ohio House Museum, actually, because you see Nory writing around the streets with the bubbles and the flowers. So Nory has spoken about their history, they transitioned to be a woman in the '80s, and then at some point they came out as non-binary and was a real pioneer in that space, and Nory went in one of the high court case that said that they had the right to identity, and the high court judgements beautiful, it talks about all of these gender, neutral, and diverse pronouns in international language, z, or z, or he, or, you know, it's very cool. So this is where the federal jurisdiction is, streets ahead of where we are in New South Wales, and you know, just administratively to make it easier. Let's bring it all into line. Anything to ease any form of administrative burden, just absolutely, surely the government want it to be easier. Stream line away. In your work, Katie, you would work with people of all different ages and backgrounds, and one of the areas that can be really challenging and contentious in this discussion is age. What age does a non-binary person need to be to make their own decision to affirm their gender? Such a good question. And then when we talk about affirming gender, what are we talking about? Are we talking about putting on makeup, experimenting with a different name, putting on different pants, or trying on skirts? So, you know, we know that children and young people start doing that at a really young age, but yeah, where it starts to get difficult in the legal space. Legal affirmation space is about access to medical care. So it's young people under 18-year-olds. And I try to sort of demystify it that it's not really just a trans issue in the sort of arena of medical treatment and family law whenever a young person requires a form of medical treatment that is perceived as serious and potentially carries risks, so I'm talking about experimental cancer treatments. I'm talking about terminations of pregnancy. Any kind of serious medical decision requires sort of two things. It requires what's called gillic competency, which is just a concept that talks about the child or the young person understands what the treatment is, why the treatments are available and any potential risks or outcomes. And who makes that determination? Is that a doctor who makes that determination or a lawyer? So if it's for blockade, so what's called stage one therapy hormones as a general rule, that is a decision that can be made between treatment providers and families. The court does not need to get involved. Stage two, again, which is when we start talking about HRT. Again, if the child is assessed by their medical team and supported by both of their parents, that decision generally doesn't need to go to the court. So particularly if we're talking about a child that's 16 and over. There's some debate more amongst the medical fraternity that commencing HRT for under 16-year-olds might need to be reviewed by a tribunal. But a lot of that is kind of currently being tested. And again, it mostly sits with the medical professions. I understand you've been involved in a recent high-profile case about this determination and when people can begin treatment. Are you able to speak about that? Yes. So the ICLC is very proud to have been involved in the leading case, which is re-imaging, which is in the family court. And the thrust of the decision is that if a child or a young person is deemed gullic competent, so they understand what the proposed treatment is and what it will do. And it's potential risks. The medical team support it. And mum and dad, or mum and mum, or dad and dad, or the sole parent, if their sole parents decide that it's okay for the kid, the court need not be involved. If the two parents disagree, that's when it has to go to court. How would a young person with disagreeing parents begin legal proceedings to affirm their identity? You know, my thoughts and solidarity with that young person, I think they'd be wanting to speak to the parent that supports them about getting some family lawyer advice start. And to try and find a family lawyer that is supportive also of these issues and understands issues, the families of children who are gender-diverse experience, because it's really the family court, ultimately, is where these situations end up. But having said that, there are so many support services for LGBTQ young people and for their families. We'll link to some of those as well. Brilliant, brilliant. But yeah, accessing services and trying to find education for that parent that needs to be brought along on that journey. I think as well, if anyone listening to this podcast and maybe thinking, oh, that's great. There's an avenue through the family court to apply, there's a disagreement between the parent and child. Let's be honest, practically, the balance of power lies the parent. I kind of imagine, say, for example, me, I grew up in a really conservative Sri Lankan Tamil-like Hindu family. There's no way in hell that I could have told my mom to go and get legal advice about something. She's lovely, but I come from this sort of community where, if you're left-handed, your left hand is tied to the cupboard and you're made to eat with your right hand. That's the sort of-- and a lot of conservative Christian friends from those backgrounds I know have come from really, really restrictive backgrounds. To really the percentage of people who will have to navigate this process, it's not going to be easy for the child. So yeah. Kavita, I want to ask about some of the most common legal rights issues that transgender and non-binary people face today. Firstly, is it illegal to misgender someone? I don't think it's illegal to misgender someone. I think misgendering in some context, like, let's say, maybe there's an intention and repeated misgendering can maybe be considered as discrimination in some context. Obviously, discrimination is in a legal sense as different to what an individual would perceive in a general sense. So yeah, I think with pronouns, just if you're-- I think there's nothing to be scared of. I think people are quite often too scared to ask people-- talk to trans people, ask about anything. It's like, you're not sure, just ask. And don't assume. It's probably the best policy to have. Katie, can you think of examples of particular and unique workplace discrimination that trans people continue to face? Yeah, I think the pronouns example is a really good one. More and more, you're finding in employment law, there's lots of different frameworks in workplaces. You know, workplaces have a new responsibility to make sure to proactively protect people, or workers, against sexual harassment, and also against psychological injury. There's also anti-bullying provisions in the Fair Work Act. So people who are transgender diverse, same-sex relationships, all of our clients really, depending on what's happening at work, might have access to some of these mixed-bag protections. And that might be under the Sex Discrimination Act. It might be under the Anti-Discrimination Act in New South Wales. It might be under the Fair Work Act, which is another federal piece of discrimination. And this is one of the things we really struggle with at the ICL. It's like, where should we go? Where are we going to get the best results? Yeah, where do you begin? Where do you start? But I would say an example like in a workplace where someone has come out, they've updated their documents, they've had their gender reformation leave, and they come back to the school, the bank, the office, where they work. And there's a class of people, whether it's managers, colleagues, the whole workplace, or one person, if they're repeatedly willfully misgendering someone and not respecting that person's gender, I think you'd be able to run a case in a situation like that. But it would have to tip over from an honest mistake. And I think we know that a lot of lazy people make probably too many honest mistakes. And we all need to do better, and we all need to do the work. But if it was repeated and deliberate, and management did nothing to stop it, I think you'd have a case. And can I just say we at the ICLC would be very interested to hear from people that have these kinds of experiences. These are exactly the sorts of matters that we want to run. I want to ask about two other issues that regrettably get deeply ugly and political and awful. And they are gendered spaces when it comes to bathrooms and participation in sport. Thinking about the most common legal issues that transgender and non-binary people face. What do you see happening to people in terms of bathrooms and use and access to the bathroom that matches their from gender? God, it's architecture. Fix it. Yeah, I think it's a really loaded topic. I've been very lucky that I've never had any incidents in the bathroom, but I have so many friends who have experienced violence. And every time I go into a bathroom, I still have a little bit of, like, oh my god, like I need to hold my breath. And maybe a handful of times, like this bottle lady just looking at me and I've been like, oh my god, I should be like, oh, darling, your hair's so gorgeous, I'd be like, oh my god, breathe. Classic female bathroom conversation. It's just, it's really scary, because you hear about trans people, like, statistically, like, not going to the toilet in public because of the fear of being harassed or being exposed to violence, which, honestly, it's just ridiculous. And it's so complicated, because I think for trans women going into female bathrooms, you know, there's a bit of harassment, sort of things, but often the trans mass people going into male bathrooms, that's a, that's sort of a, that can be a really unsafe space for them. It's a really, really complicated area. So like, really what is the answer, you know? Like, I think quite often, there's this sort of narrative of, I think, with the sports topic as well, but also with the bathroom topic, there is sort of a focus, and generally of the media, there's a focus on trans women. And I think statistically, there's been much more attacks on trans women than they have been. I don't think there's been any attacks on cisgender women in women's bathroom by trans women, you know? And actually, interestingly, I read it, article the other day, where a cisgender woman was screamed at by someone for being a trans woman, but she wasn't a trans woman. She just had short hair, but she was a cisgender woman, so she wasn't trans, but she got screamed at by, and by an older woman in a woman's bathroom for being trans, and then she had to go and get security, and then she went public about that. So, you know, this is an issue that affects everyone, you know? Like, I often wonder with the hypercriticalness of how trans people look and everything. How would you feel if you're more masculine looking woman or more feminine looking man? Like, you know, it's an issue that affects everyone. Like, I think we just need to get over it. - He's something that I don't understand about public bathrooms, right? Like, women's toilets always have longer cues. - Yes, my workplace is very feminine, so I think at the moment we've got sort of seven women or people who present as women and maybe one cis guy. And like, oh, the bathroom's full. I'm like, no, it's not, go to the men's. People always look at me like I've got four heads or I'm doing something really weird, and I'm like, what do you think's gonna happen in there? I'm like, I just don't want to wait. - Yeah, it's so strange. - If you have ever spent 25 minutes waiting for a bathroom when a cis dude is just in and out. - Why? And there's all that's like, what's gonna happen if you go in there? I mean, for goodness sake. - Katie, then returning to the issue of transgender participation in sport, is this a legal issue? Is it a regulation issue? Is it a political issue? - Oh, it's all of those things, Amy. Yeah, it's, I think it's one of the hardest questions. It really is. And I have to say some of the best contemporary work around this has been the work of equality, Australia, and Alex Greenwich's proposals in his equality bill. And they talk about, you know, looking at the kind of strength and physical requirements of the sport and then making a decision that's proportionate to that. So the way the law works in New South Wales at the moment, the discrimination law, it's maybe as good as it's going to get. But the Anti-Discrimination Act kind of outsources a lot of those decisions to the codes. It sort of says codes can include or exclude trans people based on, you know, the club or the sport. And on the positive side, what we are seeing is that a lot of codes are being really trans-inclusive and don't actually care. So we think that that's really great. Again, another case study that I hope to be able to speak about more in more detail publicly soon. But we're seeing a lot of online vilification of trans women playing sport in women's sport teams. And there's certain, I'm doing air quotes, activist groups, sort of gender-based activist groups that are targeting those clubs and those women and sort of using this narrative, you know, you're harming our girls in sport. You've already seen it on the news. And it's a real activist. They're activists working on the opposite side to us kind of saying that this is harmful to women and girls in sport and there's going to be injuries and it's not fair and all of this stuff. But then you talk to our clients and we talk to their clubs and everyone's perfectly happy, you know? And the people and the other teams and we're talking about like low level community sport. No one's going to the Olympics. And I do think at the Olympic level that's where it does get really hard. And, you know, science needs to get involved to a certain extent. And when we're looking at community social-- When we're looking at community social activities, the clubs tend to be quite happy. Again, the issue because of our sort of irregular patchwork and kind of the legal avenues that are available to these people. You can make claims under anti-discrimination. You can make claims under defamation law because a lot of this stuff happens online. And sadly, we don't see the police intervening to help people very much in this space. So we're supporting transgender. I'm not going to call them athletes because they tend to not be. They tend to be trans people playing in social sports. Athletes are stretch. Yeah. And we're supporting them to seek, you know, personal apprehended violence orders for their protection to stop people from harassing them online, stop people from showing up at the sport, and stop people from contacting other players in their team, and contacting other teams. And, you know, like an outing people, it's really nasty and silly and political. So I'm really hopeful that Alex's amendments will get through. But like I see, what I'm actually seeing from sports codes and you see on a lot, you know, various different sports, they've got statements about their position, about gender diverse people playing sport, and a lot of the codes are actually really leading the way. It's terrific. Kabeeta, I want to ask you, for somebody who is listening to this episode, who is in a position where you were five years ago, if there's one thing that you would want them to know, what would it be? You have one life and live your best life. It's going to be hard, but it's going to be worth it. And you'll find so many friends and new community through this and you'll become a stronger person. And Katie, if there's one thing that someone listening to this that you want them to walk away from in terms of how they can be a better ally, be a better support to someone who they know, who is transgender or beginning the process of transitioning, what would it be? Wear it. Wear your colors. So learn about the trans flag. There's lots of really great, you know, minus 18 cell heaps of merch online. And that's to raise funds for GLBTQ young people by the shirts. You know, I'm not wearing it today, but in my office, we've all got trans flag shirts. We've got pins that say wear allies. I've got a pin that I wear, particularly when I'm speaking with government. And it's by this wonderful little shop, Sydney-based shop called Sock Draw Heroes. And they sell merch and also gender affirming gear. Things like chest binders, underpants for people that are transitioning. And they've got this really cool pin that says no turfs on our turf. And a turf, a T-E-R-F, is a trans-exclusionary radical feminist. So that's that kind of breed of feminists that don't believe that trans women ought to be included. So I like to wear that badge when I'm going to speak with lots of other cis people, or government people, or decision makers, because it's a real conversation starter. And I'm proud as an ally that I guess a lot of people feel a bit more confident to ask me the stupid questions, or the questions where they feel like they might put their foot in it. And I don't know everything, you know? The knowledge in this area is always changing, but I'm really happy for my trans friends and family and client that I can kind of take some of that pressure off them, because we should all be doing all of our cisgender people, really ought to be doing more to understand the issues, particularly when it comes to saving the lives of children, because more and more of them, and this is a good thing, more are feeling safe enough to kind of come out and express their gender identity sooner, but we have to keep them safe. Thank you so very much for coming in and sharing your lived experience, your professional expertise. There was just, yeah, I feel very privileged. So thank you so much, thank you. Thank you for having me, and I am really glad to be here and share my experience as well. Lawfully explained is a listener production brought to you in partnership with the Law Society of New South Wales. Hosted by me, Amy Dale. The Law Society's producer is Francisco Silva. Our audio is by Kelly Fullston. The executive producer is Todd Stevens, and the producer is Thomas Thexton. Listener.