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Legal challenges in shifting notions of gender


If the community can’t find common ground on gender issues, the parliament and the courts will need to intervene, writes legal commentator Morry Bailes.

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The question of gender, its place in society, and a person’s rights and entitlements in the eyes of the law is in a state of flux, and our Parliament, courts and private institutions are struggling to find balanced, consistent solutions that protect and cater for all.

Indeed, gender identification is creating collisions of rights that pit consumer against practitioner, athlete against athlete, and, sadly, parents against their children.

There are a couple of scenarios that demonstrate the complexity of these issues.

First is the circumstance where a person does not wish to identify by a particular gender. As far as the law is concerned, that question was settled by the High Court in 2014 when it found that the androgynous person Norrie did not have to register as a man or a woman with the NSW Registry of Births Deaths and Marriages. In short, it was a finding that sex or gender is not binary.

Interestingly, although there was some publicity at the time of the decision, it does not now seem to be well-understood jurisprudence within the community.

Perhaps that can be put down to the fact that what has captured greater controversy is the scenario where a person identifies by a gender that is not the “physical” gender of their birth.

In a fascinating twist, feminists in the state of Victoria are concerned about the legal rights of women who are asked by a person who was born physically male but who now identifies as female to treat them as a female.

It is a collision of rights: for example, a female beauty therapist’s right to choose not to wax someone who she perceives as physically male versus the right of a person who identifies as female and wishes to be treated as one. This has played out in dramatic fashion in Canada where Ms Yaniv, who has male genitalia intact but identifies as female, accused numerous female beauticians of discrimination after she was refused a “Brazilian”. I support the right of a person to choose who they treat, and believe that recourse to accusations of discrimination in such a situation is unwarranted.

Sport has been living with this dilemma for some time. Most recently Cricket Australia announced its policy that, irrespective of your outward physical make-up, you can play at the elite level based on the gender with which you identify. The fairly obvious complaint from women born female is that a female born male may be able to out-compete them. Is that fair?

The same has played out in track and field and a range of other sports. It boils down to the same argument: is it discriminatory to prevent a person born male but who identifies as female to play in female sporting competitions, or is it competitively unfair irrespective of your gender identification, for a person born male to compete against a person born female? Personally, I struggle with Cricket Australia’s call. It fails the fairness test. Why bother to have a gender division in sport at all?

Then there are shades of grey. Taking hormonal drugs, for example, is plainly a phenomenon on the rise. There are medicos dedicated to this area of practice and it gives rise to further and serious considerations in law, in particular, the rights of the child versus the rights of the parents.

On the grounds of alleged psychological damage to a child, parents are reportedly precluded by a government-funded gender reassignment facility in New South Wales, unless they are “supportive” and the child will, in the child’s judgement, “remain safe”, whatever that means.

In law, the Parens Patriae jurisdiction literally translated from the Latin makes the courts the “Parent of the Nation” in the case of a child who is legally unable to act on their own behalf, as explored by the High Court in Marion’s case in 1992. In that matter, the court found parents or guardians could not authorise the sterilisation of a 14-year-old child suffering from intellectual incapacity. And there are obviously cases where parents do not act in the best interests of the child.

It is a tricky area but as a responsible parent, I am firmly of the view that parents have a right to know. Adolescence can be a very uncertain period. The use of hormonal drugs may have lasting effects and parents should not be excluded from the decision-making process. Tribunals and courts will be called upon to resolve these potential disputes and, in the law, each case can turn on its facts.

It would be an occasional case, one would think, where excluding a parent is in a child’s best interest. There may be disagreement and discussion, but there are about lots of things in life, and having been wrong about a great many things during my adolescence, I wouldn’t want to trust the judgement of a teenager in all things. Others may disagree with me.

Our society is generally open and accepting but the current uncertainty surrounding gender identity is a challenge. Where the community is uncertain, we need open debate. It is inevitable that both the parliament and the courts will play a part in clarifying these matters for us, but the answers really come from the people. How can we be fair and equitable across the board but reasonable and respectful at the same time?

Unwarranted claims of discriminatory behaviour are none of those things, particularly when the people who are on the end of a complaint have themselves entirely defendable rights. As to keeping a parent in ignorance when their child is receiving gender reassignment treatment, that is also not fair, reasonable or respectful, although the courts will be the ultimate determinant of that.

No two circumstances will be the same, but we need a bit of common sense and understanding to prevail. All people deserve our respect and gender is a matter for the individual, but other citizens’ rights and well-being are also important. Norrie’s case aside, the seesaw is tipping on a number of these issues and we must commit to finding some stable middle ground. If not, we need the Parliament and courts to do it for us.

Morry Bailes is managing partner of Tindall Gask Bentley Lawyers and immediate past president of the Law Council of Australia.

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