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Same-Sex: Same Entitlements: Chapter 17

Same-Sex: Same Entitlements Report [ 2007 ]

Chapter 17. Additional

Issues: Homophobia and Gender Identity

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17.1 What

is this chapter about?

Organisations and individuals raised a range of issues

with the Inquiry that did not fall strictly within its Terms of Reference. Where

these issues relate to one of the main chapters of this report, they are

discussed within that chapter.

This chapter

addresses two issues which did not fit squarely into any other chapter: general

homophobia and gender identity.

The Inquiry

has not made findings or recommendations about these issues as they are outside

the Inquiry’s Terms of Reference. However, they are important issues which

should be examined in the future.

17.2 What

did the Inquiry hear about homophobia in the community?

Homophobia was mentioned in many of the

Inquiry’s forums and written submissions. Homophobia in the context of

employment, health care and aged care is discussed in Chapters 6, 11 and 14

respectively. The following are comments about homophobia more


17.2.1 Experiences

of homophobia

Gay and lesbian people told the Inquiry about ongoing

experiences of homophobia. Some experience homophobia in the form of verbal

abuse. For others the homophobia includes physical abuse and



person commented in the Sydney forum:

I received hate mail the first day I walked into the

[parliament] house. It came in the form of a letter, anonymous of course. It

said: ‘I hope people like you die, your children don’t deserve to be


Tony Whelan talked about the personal strength

required to resist homophobic attacks:

I know what it is like to being the target of half a dozen

thugs with baseball bats screaming anti-gay abuse. If I weren't both lucky and

prepared to stand up for myself, I would not be writing this letter. Some of my

friends have been less



the Lismore forum a woman spoke about her experiences in the home, community and


[I] was demonised and bossed by my family and friends;

taunted and sexually harassed by male co-workers. I got the sack, but noticed

that cosseted gays and lesbians weren’t shown the door...[I] came up

against many brick walls in tackling this discrimination: mainstream patriarchal

attitudes and structures; sexism; and homophobia from many straight women...But

I was expected to remain invisible and


A number of young gay and lesbian people

identified school as an area where they were most likely to experience violence.

For example, the Coalition of Activist Lesbians (COAL) describes the experiences

of a young lesbian at a regional high school:

...when she confided to a friend that she might be a

lesbian, the story circulated in the school quickly. After school, in the car

park, hostile school students held her still as they drove a car over her feet,

all the while yelling verbal harassment. She told me she was too frightened to

tell a school authority, to seek medical advice or speak with the police for

fear of further violence and of having to tell her



to the Gay and Lesbian Rights Lobby (NSW) the possibility of violence impacts on

the lives of many gay and lesbian members of the community:

A survey of 600 GLBT people conducted by the NSW

Attorney-General’s Department in 2003 found that 85% of respondents had

experienced abuse, harassment or violence. A nationwide survey of 5476 GLBT

Australians undertaken in 2005 reported that 67% of respondents modified their

daily activities as a result of fear of prejudice and discrimination. While

removing legislative discrimination will not result in the elimination of

homophobia in Australian society, it will be influential in challenging the

stigmatization that exists against GLBT people and same-sex



Collier said that:

There is evidence that hate crimes against gay men and

lesbians results from the systematic discrimination entrenched in the law. When

gays and lesbians are determined to be unequal at law, then homophobes assume

the privilege of vigilante justice by bashing and attacking gays and their


17.2.2 Discriminatory

laws are an endorsement of homophobia

Many people argued that discrimination against

same-sex couples in federal legislation perpetuates homophobia. For example, The

Hon Ian Hunter MLC stated that the federal government’s resistance to

recognising same-sex couples:

...reinforces the belief that it is alright to feel that

there is something wrong with homosexuals and it is alright to think less of

them. Worse still, to a small minority it says that it is OK to attack

homosexuals, both verbally and


ACON wrote that:

...the lack of legal recognition of same-sex couples and

same-sex families sends a strong government-sanctioned message that these

relationships and family structures are not valued, which further enforces the

homophobia and heterosexism that pervades Australian society. GLBT Australians

are subject to high levels of discrimination in the

workplace,[9] at

school,[10] and on the

street.[11] Many also face

discrimination and exclusion from their biological family because of their

sexual orientation. Alarmingly, there is evidence to suggest that GLBT people

are also subject to discrimination when accessing medical



also told the Inquiry:

Current policies that do not recognise the entitlements of

same sex couples reinforce social exclusion and legitimise the discrimination

and homophobia that gay and lesbian people are subject to.

While we recognise that removing legislative inequality

against same-sex relationships will not end homophobia and homophobic abuse in

Australian society, it is an important step in challenging the stigmatization,

discrimination and social exclusion experienced by GLBT



Goodwin argued that:

Coming out is hard enough given that one has to deal with

the negative attitudes within society. The situation is only exacerbated by the

intrinsic approval of homophobia through the government’s


When our own government participates in and endorses

discrimination against its citizens, they construct a society that follows their

lead. This is very dangerous as it reinforces homophobia from the top


Jim Woulfe addressed this issue at the Sydney


Andreas and I strongly believe that by retaining the

inequalities, and refusing to recognise same-sex relationships, our Federal

Government maintains an environment in which hate and homophobia can thrive. It

validates the views of the very few in our society who would attack us because

of our sexuality. The government treats gays and lesbians differently, they say,

so why shouldn’t we?

A great power to end the discrimination and neutralise the

homophobes resides with our Federal Government. Granting equality for same-sex

relationships would rob the people who attack us of their phoney justification

– it’s the single biggest step our government could take against

homophobic harassment and



the Gay and Lesbian Rights Lobby (NSW) note that:

...legislative discrimination is a major contributor to

the high levels of social discrimination and stigmatisation that still exists

towards GLBT Australians. By refusing to recognise same-sex relationships at a

federal level, the Federal Government is sending a message that same-sex couples

and GLBT people in general, should not be valued or treated equally with others.

By failing to acknowledge the existence of same-sex families under NSW law, the

NSW Government is stating that these families do not deserve the protection of

the law that is afforded to other families. This discrimination manifests

through higher levels of homophobic violence, harassment and exclusion in all

aspects of society for GLBT



people also talked about the positive role that law reform can play in improving

community attitudes. For example, the Commissioner for Equal Opportunity in

Western Australia told the Inquiry about positive changes in attitude following

the introduction of law reform recognising same-sex couples in Western


17.3 What

did the Inquiry hear about discrimination on the basis of gender identity?

Several submissions to the Inquiry raised issues of

discrimination faced by people with diverse gender identities. For example, Sex

and Gender Education Australia told the Inquiry there is:

...still a great amount of public homophobia and

transphobia in Australia that leads to discrimination. That discrimination can

be either overt or covert and the law is still deficient in protecting gay,

transsexual, transgender, androgynous and intersex people, often not

understanding the difference between the different



WA Gender Project told the Inquiry:

Recent Australian research confirms that transgender

people experience significantly higher rates of discrimination, harassment and

vilification than both their heterosexual and same-sex attracted non-transgender


One person who identifies as neither male nor

female told the Inquiry:

I am human being, and deserve human rights on that basis,

and not have them denied because I cannot establish that I am a man or a woman.

Likewise, my rights to have my domestic relationship recognised should be

upheld, without regard to whether I have a normative gender or an androgynous

reality. To do less leaves me and my partner legally vulnerable, and endangers

any dependent children our family might have, legally, socially and in the


17.3.1 People

who are ‘transgender’, ‘transsexual’ and


The term ‘transgender’ is generally used

to refer to someone who does not desire surgical intervention to ‘change

sex’ and/or who believes that they fall ‘between’ genders. A

person who is transgender does not usually identify fully, or strictly, as

either male or female. This term has also been used to describe anyone who does

not strictly adhere to the gender norms of their


Sex and Gender Education Australia

describe a transgender person as ‘a person who may be one sex but may live

as a different gender. This term is also used as an umbrella term to denote sex

and gender diverse



person who is transsexual is someone who has transitioned from one sex to

another. [22] The process of

physical transition for transsexual people usually includes hormone replacement

therapy and may also include sexual or gender reassignment surgery. The process

can take several years.

Transsexuals can be MTF

(male to female) or FTM (female to male). They may be heterosexual, gay, lesbian

or bisexual following their transition.


person who is intersex is someone who is ‘born with sex chromosomes,

external genitalia, or an internal reproductive system that is not exclusively

either male or female’.[23] The person may identify as being ‘neither male or female, or as

both’.[24] Some people who are

intersex undergo surgery to make them either male or female.

17.3.2 Health

care services do not adequately cater for people with diverse gender


The Inquiry heard that people with diverse gender

identity face a range of issues in accessing appropriate health care.

The Australian Medical Association note that:

anecdotal research indicates that experiences or

expectations of discriminatory treatment [for intersex people] may lead to

decreased accessing of healthcare facilities. This has flow on effects for

untreated mental and physical health



Inquiry also heard that neither Medicare nor the Pharmaceutical Benefits Scheme

(PBS) adequately meet the needs of gender diverse people.

The WA Gender Project told the Inquiry of

problems with Medicare:

The Health Insurance Commission will not recognise the

affirmed sex of a transgender individual unless surgery has been performed. In

many circumstances this denies transgender people appropriate medical treatment.

For example, a pre-operative transsexual woman may be denied Medicare rebates

for mammograms (McNair & Medland 2002). This is alarming, given that

transsexual women, like all women, are at risk of breast



ALSO Foundation told the Inquiry that the PBS does not meet the needs of

transgender people:

The Federal Government should urgently review the health

care rebate system and the Pharmaceutical Benefits Scheme to ensure that it

better reflects the needs of transgender people. Currently transgender people

that take medications and hormone therapies are often subject to extremely high

cost prescriptions that are often not subsidised by the Pharmaceutical Benefits

Scheme. These medications and hormones are vital to the health and wellbeing of

many transgender people and should be available at affordable prices and

accessible across Australia, particularly in regional


17.3.3 Aged

care services do not adequately cater for people with diverse gender


The Inquiry heard from a specialist in aged care that

transgender and intersex people face particular difficulties in accessing

appropriate aged care. Dr Jo Harrison argues that:

Transgender and intersex people are also particularly

vulnerable to discrimination in aged care settings, to the point where they may

avoid seeking assistance altogether. There is anecdotal evidence of denial of

services, forcibly preventing cross-dressing and deliberate physical violence

when people are revealed to be transgender.

Transgender people may also have medical issues related to

their original gender that emerge with ageing, such as osteoporosis or prostate

cancer. These may not be addressed because they may be too intimidated to seek

medical advice of any


17.3.4 Gender

diverse people who are married face difficulty having their affirmed gender



WA Gender Project explained that ‘[s]tate and territory laws that

facilitate legal recognition of a transgender person’s affirmed sex

require that the individual be unmarried’. This:

...requirement forces married transgender people to choose

between ending a loving relationship by divorce to achieve legal recognition of

their affirmed sex; or continuing to be recognised as a sex inappropriate to

their appearance and sense of



number of individuals told the Inquiry about their difficulties in having both

their relationship and their affirmed gender recognised. For example, the

Inquiry heard the story of Grace, a lesbian post-operative transsexual woman who

(as a man) married her female partner prior to her sex reassignment surgery. Her

birth certificate now cannot be amended to reflect her ‘affirmed

gender’ because she is married. Grace concludes by speaking about the

impact of discrimination on her family:

It is grossly unfair to force people in my position to

choose between having a marriage or their gender recognised by the law, where

anyone else would simply be granted both. This is especially evident when the

rights of children and recognition as a family and the attendant rights granted

by the marriage act, are concerned. All of this complex situation disadvantages

me, my legal partner and whatever family we may have with regard to workplace

benefits that are presently available to the average heterosexual


17.3.5 Gender

diverse people face difficulties obtaining an appropriate


Many people who are gender diverse have trouble

obtaining appropriate travel documentation.


ALSO Foundation explains that a person undergoing gender reassignment surgery


...may obtain a temporary passport in their new sex and

once the surgery has been completed they will be eligible to apply for a full

ten year passport in their new sex. However, transgender people that have not

undergone reassignment surgery are not able to have their identified gender

recorded on their passport. A new passport does not mean that the Federal

Government recognises transsexual gender identity in any other capacity and this

document cannot be used as proof of gender identity for other purposes such as



requirement that gender reassignment surgery be completed before a person can

obtain a passport also ignores the gender identity of ‘many transgender

people that are unable to have gender reassignment surgery for medical or

financial reasons and those that have no desire to have such surgery and live

comfortably in their identified



Inquiry heard of the difficulty experienced by Jack, who does not consider

himself to be male or female, although he presents as masculine:

I have never travelled overseas – should I wish to

do so, my passport would define me as female, according to my birth certificate.

Imagine the fuss at customs! In an ideal world I would like to be able to change

my passport to reflect me as male, to represent the masculine way I feel and am

in the world. Currently this is impossible without first changing my birth


17.3.6 Case

study: being gender diverse

Zoe Ellen Brain is a transsexual woman currently

undergoing transition from male to female. She has been happily married for 25


My problem is that while we remain married, I will always

be legally

male according to [s]tate law.

The Health Department currently regards me as [f]emale,

but this recognition may be withdrawn at any time. This will deny me access

under the PBS to medications I'm currently taking, which are only available to

treat female conditions - which I have.

Being male under state law, it is likely that any

Australian passport I acquire will also state that I am male, unless I get a

temporary passport for the purpose of getting gender reassignment surgery. Under

normal circumstances, I could get my legal sex changed to female then, if I was

unmarried, and thus the correct passport. However, in my case, my status would

revert to male again.

Travelling overseas with an obviously somatically female

body and a male gender on the passport may cause a multitude of problems, from

being denied entry due to inconsistent documentation, through to being held in a

male immigration holding facility, to being subject to full body and cavity

searches by male immigration



[1] See Coalition of Activist Lesbians, Submission 171; Gay and Lesbian Solidarity,

Submissions 89 and 89a; Anti-Discrimination Board NSW, Submission 317;

Australian Marriage Equality, Submission 238a; Gay and Lesbian Rights Lobby

(NSW), Submission


[2] Speaker, Sydney Forum, 26 July


[3] Tony Whelan, Submission


[4] Speaker, Lismore Forum, 11 November 2006.

[5] Coalition of Activist Lesbians, Submission


[6] Gay and Lesbian Rights Lobby (NSW), Submission 333.

[7] Henry Collier, Submission 121.

[8] The Hon Ian Hunter MLC, Opening Statement, Adelaide Hearing, 28 August 2006. See

also Let’s Get Equal, Adelaide Hearing, 28 August 2006; Kaz Heffernan,

Brisbane Hearing, 11 October 2006; ACON, Sydney Hearing, 26 July


[9] See J Irwin (2002), The Pink Ceiling is Too Low: Workplace Experiences of

Lesbians, Gay Men and Transgender People, Australian Centre for Lesbian and

Gay Research, University of Sydney,


[10] See L Hillier, A Turner, A Mitchell (2005), Writing Themselves In Again: The

2nd National Report on the Sexual Health & Wellbeing of Same-Sex

Attracted Young People in Australia, Australian Research Centre in Sex,

Health & Society (ARCSHS) La Trobe University, Melbourne,


[11] See Attorney-General’s Department of NSW, (2003), You Shouldn’t

Have to Hide to Be Safe: A Report on Homophobic Hostilities and Violence Against

Gay Men and Lesbians in


[12] ACON, Submission 281. See also Victorian Gay and Lesbian Rights Lobby (2000), Enough is Enough: A Report on Discrimination and Abuse Experienced by

Lesbians, Gay Men, Bisexuals and Transgender People in Victoria,


[13] ACON, Opening Statement, Sydney Hearing, 26 July 2006.

[14] Grant Goodwin, Melbourne Hearing, 27 September


[15] Jim Woulfe, Sydney Hearing, 26 July


[16] Gay and Lesbian Rights Lobby (NSW), Submission


[17] Yvonne Henderson, Commissioner for Equal Opportunity, Perth Hearing, 9 August


[18] Sex and Gender Education Australia, Submission


[19] WA Gender Project, Submission


[20] Sex and Gender Education Australia, Submission


[21] Sex and Gender Education Australia, Submission


[22] Sex and Gender Education Australia, Submission


[23] Australian Medical Association, Submission


[24] Sex and Gender Education Australia, Submission


[25] Australian Medical Association, Submission


[26] WA Gender Project, Submission


[27] ALSO Foundation, Submission


[28] J Harrison, ‘Discrimination and older gays: surviving aged