WA Gender Project
Submission to HREOC Inquiry
Same-sex: same entitlements
1 WA Gender Project
1.1 Who do we Advocate for?
WA Gender Project is a lobby group for gender diverse youth in Western Australia. We seek to inform governments and the wider community about the needs of people whose gender expression differs from the societal expectations associated with their sex as assigned at birth. In particular, we represent the interests of:
WA Gender Project use the term transgender to describe any person whose gender expression differs from the societal expectations of the sex they were assigned at birth. We use this as an umbrella term for any person whose gender identity challenges gender norms. WA Gender Project recognise and respect that the terms transgender and transsexual are subject to debate within the transgender community, reflecting ‘the importance members of marginalised groups attach to the processes of self-definition and redefinition’ (Leonard, 2002, p. 9).
We believe that all people, transgender or otherwise, are adversely affected by rigid sex and gender roles and that all individuals should be free from gender-based discrimination.
1.2 What do we do?
In the past, WA Gender Project has worked in collaboration with West Australian organisations such as the WA AIDS Council, Freedom Centre, National Union of Students, Student Guild Queer Departments, Gay and Lesbian Equality WA and Gay and Lesbian Community Services to advance the human rights of transgender people.
2 What Aspects of the Law does this Submission Address?
WA Gender Project recognise many areas of Commonwealth law and federal government department policies that are of concern. However, the terms of reference limit the inquiry to laws that discriminate against same-sex attracted people. Whilst a significant proportion of transgender people are same-sex attracted, many are not. A transgender person, like any other individual, may be gay, lesbian, bisexual, heterosexual or asexual (Levy, Crown, & Reid, 2003).
WA Gender Project respectfully submit that the terms of reference for the inquiry should be broadened to include transgender individuals, same-sex attracted and otherwise.
This submission identifies only one area of the law that negatively affects same-sex attracted transgender people; that relating to marriage. However, other areas of law or policy that discriminate against both heterosexual and same-sex attracted transgender people are briefly detailed.
3.1 Commonwealth Marriage Law
It is the position of WA Gender Project that all citizens should have the right to marry whomever they choose, irrespective of sex. Some transgender people enter into marriages before beginning the process of physically transitioning.
State and territory laws that facilitate legal recognition of a transgender person’s affirmed sex require that the individual be unmarried. Presumably this is intended to prevent the creation of a same-sex marriage.
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 self.
A lack of recognition can create difficulties in areas such as employment, travel and health care and leave transgender people vulnerable to discrimination and harassment.
3.2 Lack of Protection from Harassment and Vilification
The problems facing transgender people may transcend those of lesbian, gay and bisexual individuals and they are considered to be at an increased risk for harassment and violence (Levy et al., 2003). 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 peers (Pitts, Smith, Mitchell, & Patel, 2006). The Private Lives study, the largest survey of gay, lesbian, bisexual, transgender and intersex people to date, found:
McNair, Anderson and Mitchell (2001) found that 84 per cent of Australian transgender people have experienced at least one form of discrimination or abuse in settings such as education, employment, medical treatment, police/law enforcement, parenting, and the provision of goods and services.
Such experiences have serious implications for the health and wellbeing of transgender Australians. Discrimination and transphobia contributes to social labelling and stigmatisation, increasing the likelihood of individuals experiencing depressive symptoms, lowered self-esteem, psychological distress, social isolation, internalised transphobia and suicidal ideation (Brown, Perlesz, & Proctor, 2002).
In consideration of the pervasive discrimination and prejudice evident toward transgender people, WA Gender Project submit that comprehensive protection from harassment and vilification is urgently needed.
3.3 Inability to Change Identifying Documents without Surgery
Numerous government departments require that transgender people undergo a surgical procedure to modify their sexual characteristics before their affirmed sex is recognised. Two examples are given below.
The Department of Foreign Affairs and Trade will not issue a passport with the correct sex unless such a procedure has been performed. This can make entering certain counties difficult and makes travel an embarrassing and degrading experience. Passports are often requested by employers to prove citizenship. Besides obvious privacy implications, this can create difficulties in obtaining employment.
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 cancer (Symmers 1968; Ganly & Taylor 1995). Similarly, transgender men may have difficulty accessing appropriate hormonal treatments through the Pharmaceutical Benefits Scheme (PBS). Testosterone therapy is only subsidised for hypogonadal males. A transgender man who has not undergone a surgical procedure would thus not qualify.
The requirement for surgery is problematic as there are many reasons why a transgender person may not undergo a surgical procedure. These include:
3.3.1 High Cost of Surgery
Sex-reassignment surgeries are expensive procedures and, with the exception of hysterectomy and oophorectomy, are not covered by Medicare. Male-to-female genital surgery costs between $25,000 and $30,000 when performed in Australia (Haertsch, 2006), or approximately $12,250 USD when performed in Thailand (Suporn, 2006). Sex reassignment procedures for transsexual men are also expensive, ranging between $1,800 and $6,500 for chest reconstruction when performed in Australia or $4,000 USD and $10,000 USD when performed in the United States. Metoidoplasty costs between $4,000 and $10,000 and phalloplasty between $50,000 and $150,000 (Green, 1994). The previous figures do not include the associated accommodation and travel costs.
It should be noted that many transgender people choose to travel overseas for surgery due to issues surrounding availability of particular surgical techniques and choice of surgeon.
Unsurprisingly, many transgender people struggle to afford these surgeries, particularly young people, the unemployed and those with disabilities. Such financial pressures compound the adverse outcomes associated with discrimination and finding employment when identity documentation is incongruent with physical appearance.
Even where a transsexual person intends to undergo sex reassignment surgery, all surgeons require a mandatory period where the person will live in the gender role consistent with their sex of identification. This ensures that the irreversible surgery is appropriate for that person. This period is often referred to as the ‘real life test’ and is 18 months in duration at the Monash Gender Dysphoria Clinic (Damodaran & Kennedy, 2000). (The Monash Clinic, located in Victoria, is the only public gender clinic in the Southern Hemisphere). The duration of the real life test is similar elsewhere (Califia, 2003). Transgender people are vulnerable in this period.
3.3.2 Medical Contraindications and Risks
Some transgender people may have a medical condition that prevents them from undergoing surgery. Common medical contraindications for sex reassignment surgeries include: infection with HIV, mental illness, poorly controlled diabetes, hemophilia, severe hypertension and deep vein thrombosis.
Transgender surgery is associated with significant risks. These include herniation, thrombosis, urinary and intestinal fistulae, stenosis, prolapse, severe infection, incontinence, tissue necrosis and loss of ability to achieve orgasm (De Cuypere et al., 2005; Jarolim, 2000; Krege, Bex, Lummen, & Rubben, 2001). Some transgender people consider the risk unacceptable, and forgo surgery.
3.3.3 Personal Reasons
There are a variety of surgeries that transgender individuals may undergo that are not currently recognised as qualifying procedures. For transgender women, these include breast augmentation, facial feminisation and orchidectomy. Individuals may choose to have such procedures prior, or in preference to the qualifying surgeries currently recognised.
Alternatively, transgender people may forgo surgical modification of sexual characteristics entirely. Some individuals may consider themselves too old, have religious or cultural reasons or may not feel it necessary. Some transgender people are content to modify their bodies through other methods (such as hormones or weight training).
WA Gender Project respectfully submit that the policies of government departments and the laws of states and territories should be amended so that a recognition of a transgender individual’s affirmed sex can be obtained without a requirement for surgery, similar to the system currently operating in the United Kingdom.
3.4 Lack of Medicare Coverage for Necessary Treatment
Transgender people often report that professional support during gender reassignment is inadequate (McNair & Medland, 2002). There is a danger that these individuals may turn to the black market for hormones, or obtain less appropriate drugs from friends when they feel that health providers do not address their specific needs. For example, transgender women may obtain birth control pills from female relatives (Schilder, Kennedy, Goldstone, Ogden, Hogg, & O'Shaughnessy, 2001).
The use of unprescribed injectable estrogens is of great concern because the needles used to inject hormones are a different gauge to the needles used for intravenous injection of drugs (Clements-Nolle, Marx, Guzman & Katz, 2001). Such needles are seldom available at needle exchange sites and this may increase the likelihood of needle sharing behaviour, with consequent risk of HIV and Hepatitis C infection (Nemoto, Luke, Mamo, Ching, & Patria, 1999).
The Australian public health system, (and most private insurance), does not cover the costs related to gender transition. Transgender people must find other ways to finance transition (Middleton, 1997). A disproportionate number of transgender women work in the sex industry, finding this to be the only way to fund the medical procedures they require (Leichtentritt & Davidson-Arad, 2004). This places them at risk of sexual assault and sexually transmissible infections.
WA Gender Project respectfully submit that the procedures and pharmaceuticals for which Medicare rebates are available should be reviewed. In particular, we urge that coverage for gender-confirming surgeries such as chest reconstruction, breast augmentation, phalloplasty, metoidoplasty and vaginoplasty should be available. Transgender people should be able to access hormonal treatments (including puberty-blocking drugs such as LHRH analogues and anti-androgens) through the PBS.
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