Sex and gender diverse people

9.1 Some statistics[1]

  • There are no reliable statistics on the number of NSW residents who have or might be perceived as having issues with their gender identity. For example, there are no reliable statistics on the number of NSW residents who:

    • Would actively like to change their gender identity or who have changed their gender identity.[2]

    • Cross-dress but have no wish to change their gender identity.

    • Were born with a combination of male and female characteristics, that are not wholly male or female, that may be both male or female, or neither male or female (intersex) and either have changed or want to change or don’t want to change the sex identity they were assigned.

  • The general community, however, is starting to recognise the existence of greater numbers of people who have, or might be perceived as having, gender identity issues as they become more open about their desires and needs, and as Australian society, government services and the law slowly adapt to their needs.

  • There are no reliable statistics on whether the majority of transgender or trans people are male to female (MtF) or female to male (FtM).[3] Most members of the general community are less aware of people who have changed or wish to change from the female to male gender, than vice versa — partly because it is often easier for women who change their gender identity to male to “pass” as male (that is, to not be recognised as originally female), than vice versa.

  • The frequency of intersex in the NSW population is unknown but generally expected to be similar to that in other countries. Researchers estimate that as many as 4% of the population could be affected by some form of intersexuality but it is more likely to be around 1%.[4]

  • Despite the 1996 introduction of some protections against discrimination on transgender grounds under NSW anti-discrimination law,[5] there is little doubt that people with, or perceived as having, gender issues are some of the most discriminated against and marginalised people in Australian society.[6] Our gender is a fundamental part of who we are. Many people regard gender as a fixed matter. The majority of the trans community also see their gender as a fixed matter. For the majority of trans people, once their bodies conform to their own innate understanding of gender they are then happy to live for all intents and purposes as that gender. Those who act against that norm sometimes have a very difficult time in accepting their own gender identity needs and in being accepted by others. People who wish to surgically change their bodies to conform with their innate gender also have to go through an extensive and lengthy process before this is allowed to occur.

  • As a result:

    • Approximately 10% are unemployed[7] — which may mean that this community experiences much greater than average levels of poverty. According to an American study, transgender people are nearly four times more likely to live in extreme poverty and were twice as likely to be unemployed compared to the general population.[8] The Human Rights and Equal Opportunity Commission have stated that people who are transsexual or transgender have an unemployment rate of 9.1 per cent; more than twice the national average.[9]

    • Of those who are employed — many have felt the need to (or have felt forced to) change jobs during or following their gender identity change, or are working in jobs below their capacity, or are in marginal occupations, such as prostitution.

    • Many have lost touch with their families and/or previous friends — in the process of expressing their desired gender identity, although others, for example, have kept and are actively supported by the same partner throughout their gender identity change, and/or have maintained or managed to re-establish their family relationships.

    • Many have been victims of violence — There is limited Australian research that records the level of domestic and family violence in LGBTIQ relationships.[10] However, a number of international and local studies suggest that the general patterns and levels of domestic violence in LGBTIQ relationships are about the same as in heterosexual relationships. Aspects of LGBTIQ violence include threatening to “out” the person as a method of control; not allowing the person to form relationships and seek support within the LGBTIQ community and a feeling of embarrassment about the abuse leading to limited reporting to police or health professionals.[11] Yet many persons with gender identity issues are “reluctant to report violence directed against them due to a number of factors, including low expectations of arrest, the trauma of reporting, and a widespread, shared experience of negative police attitudes”.[12]

    • Many (although by no means all) did not achieve their full potential during their schooling — Same sex attracted and gender diverse young people suffer high levels of verbal and physical abuse in the community, with the most common place of abuse (80%) being at school.[13] Gender diverse young people may also be experiencing high levels of anxiety and depression. This has a profound impact on their well-being, attendance and educational outcomes.[14]

    • Many have experienced, or continue to experience, greater than average levels of depression, drug and alcohol abuse and general ill health, and, as a result, there are relatively high levels of criminality within this community.[15] Gender diverse and transgender individuals are more likely to experience mental health conditions than the general population. Research has found that gender diverse and transgender young people were four times as likely as the cisgender young people to experience significant depressive symptoms (41% compared to 12%). Despite these high levels of depression, research has also found that amongst transgender and gender diverse people there is a reluctance to seek medical advice and assistance.[16]

    • Almost all (if not all) will have been discriminated against — often many times, by employers and/or various types of service providers, so are much more likely to be sensitive to this possibility. This may make some of them more likely to name any perceived problem, or any perceived difference in treatment from the way in which they think people born as male or female would have been treated as being a form of transgender discrimination — even when it is not. However, if you follow the guidance provided in 9.5, below, this should be less likely to occur. Bullying and violence at work is a major issue for a significant number of LGBTI people. A report found that 90% of those identifying as gender diverse had experienced some form of discriminatory behaviour in the workplace.[17] Transgender people report that they commonly experience discrimination in the workplace, including in both gaining and maintaining employment.[18]

9.2 Some information

9.2.1 Common misconceptions[19]

There are many false assumptions made about people who have gender identity issues or who are perceived as having gender identity issues. Some of the most common are that:

  • The desire for a change in gender identity is related to or even based on sexual preference or sexuality, and that if only the person could come to terms with their sexuality they would not need to change their gender identity — Gender identity is very different from sexuality. Some people who change their gender were previously homosexual, some were previously heterosexual and some were previously bisexual. Once they change or move towards changing their gender identity, some keep their original sexual preference towards people of a particular gender, or towards people of both genders, and some change their preference. For example, a person who has changed their identity from male to female may be attracted to men and identify as heterosexual, or they may be attracted to women and identify as lesbian. And, the majority of gay men and lesbians do not have any issues with their gender identity — see Section 8 for more about this.

  • All those with gender identity issues wish to medically and surgically change their gender — While this is true of some, it is not true of all. Some choose to use only some of the medical and surgical changes available — for example, they may choose to take hormones, but not undergo any surgical changes. Some are medically unable to make use of medical and/or surgical options. Some cannot afford surgery or have religious or philosophical convictions against it, and some simply choose not to do anything medical or surgical.

  • All those with gender identity issues identify so strongly with their chosen gender identity that they behave and dress in a way that represents the more extreme masculine end of the male spectrum of dress and behaviour for those who have chosen to identify as or change to male, or the more extreme feminine end of the female spectrum of dress and behaviour for those who have chosen to identify as or change to female — In fact, a person assigned a male gender who now identifies as female might or might not dress in an ultra-feminine style, and vice versa. Often there is a progression towards an appearance that coincides more closely with the general community’s view of the relevant person’s age, socio-economic status and occupation.

  • There is something mentally wrong with people who wish to change their gender identity — There is increasing medical and research evidence that there is a biological basis for many people’s innate gender identity conflicting with their assigned gender.[20] Given the huge repercussions for every aspect of their life, no-one takes the decision to change their gender identity lightly. For some, this will be a decision starting to form, or actually taken, in childhood or adolescence. For others, this will be a decision taken much later in life, once they realise that it is no longer possible for them to live a life that is at odds with their innate identity.

9.2.2 Explanations and terminology[21]

9.2.2.1 Transgender and transsexual

Section 38A of the Anti-Discrimination Act 1977 (NSW) uses the term “transgender” to refer to anyone:

(a) 

who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) 

who has identified as a member of the opposite sex by living as a member of the opposite sex, or

(c) 

who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,

and includes a reference to the person being thought of as a transgender person, whether the person is or was, in fact a transgender person.

This definition does not include people who cross-dress — unless they live or seek to live as a member of the gender whose clothes they are dressing in.

The Gender Centre notes that the legislative definition has limitations and that the “transgender community itself allows for a far more multi-coloured umbrella definition that is inclusive of anyone who transgresses gender norms”.[22]

The term “transsexual” is generally used to refer to only those people who are undergoing or have undergone a medical and surgical “gender transition” or “sex change.”

9.2.2.2 Intersex

Intersex” replaces previous inaccurate and stigmatising terms such as “hermaphrodite” and “pseudo hermaphrodite”. Intersex people are not intersexual, intersexed and do not have intersexuality.

Intersex refers to people who have congenital hormonal, physical or genetic differences that are neither wholly male or female, both male and female at once, or neither male nor female. In other words, intersex refers to an individual at birth who is not “unambiguously male or female”.[23]

Intersex includes a wide variety of diagnoses although the diagnosis by itself does not necessarily indicate intersex. Th e most common underlying diagnosis that may lead to intersex are congenital adrenal hyperplasia (CAH), androgen insensitivity syndrome (AIS) and Klinefelter syndrome (XXX).

Intersex people are generally male or female, living as men or women who are comfortable with their gender. It is uncommon for an intersex person to reject the sex they were assigned at birth however there is a significant number who do.

Intersex births are often seen as presenting parents with a dilemma that can only be resolved with medical intervention that often means genital surgery. Most surgery conducted on intersex newborns is not life preserving, rather it is cosmetic and an attempt to provide parents with an apparently normal child. Long-term consequences of these interventions are not well documented.[24]

9.2.2.3 Male-to-female (MtF) and female-to-male (FtM)

Male-to-female (and its abbreviation MtF), and female-to-male (and its abbreviation FtM), are used to describe the gender direction that a trans or transsexual person has taken, or wants to take.

The terms “male-to-female transgender person” or “male-to-female transsexual person”, and “female-to-male transgender person” or “female-to-male transsexual person” are the best terms to use when describing the direction of a person’s gender identity change or desire for change.

However, those with legal recognition of their gender (see 9.3) may wish to be described as “female” or “male” instead of “male-to-female”, or “female-to-male”.

9.2.2.4 Cross-dressing and transvestism

The term “Transvestite” describes a person who cross-dresses rather than someone who believes that their gender identity is different to their assigned gender.

Some people cross-dress only in private or only on stage. However some do so more widely than this and may, for example, appear in court in cross-dress.[25]

Some cross-dressers are gay or lesbian and some are heterosexual.

9.2.2.5 Other terms

Other terms used to describe trans people (for example, “tranny” or “trannies”, “gender-bender”, “butch”, “drag queen”, “she-man”, “she-male”, “tomboy”) are very derogatory terms even within the trans community. “Tranny” is a frequently used term amongst drag-queens (usually gay men) and there is contention between the community over the use of this term.

9.3 Legal gender identity

In NSW, trans people may be legally recognised in terms of their affirmed gender upon application for alteration of the record of their sex in the registration of their birth (s 32B). Alternatively, a person may apply to register a change of sex (s 32DA).[26] However, NSW anti-discrimination law gives them the right to not be discriminated against in relation to employment and many types of service provision, which in many instances will mean that, for all practical purposes, they should be treated in public interactions as possessing the gender they identify with — including being able to use the toilets of their chosen gender.[27]

The landmark case of Kevin v Attorney-General (Cth)[28] (“Re Kevin”) and the subsequent appeal proceedings before the Full Court of the Family Court of Australia[29] decided that a female-to-male (FtM) “transsexual” (as the term was used in the judgment) was a man within the meaning of s 46(1) of the Marriage Act and s 43 of the Family Law Act at the time of the marriage, and that he was therefore legally entitled to marry a woman. In July 2013, the Federal Government issued guidelines on the recognition of sex and gender. These guidelines recognise “that individuals may identify and be recognised within the community as a gender other than the sex they were assigned at birth or during infancy, or as a gender which is not exclusively male or female.[30] These guidelines outline how sex and gender should be recognised and be reflected in personal records held by Australian Government departments and agencies.[31]

9.4 The possible impact of gender identity issues in court

Unless appropriate account is taken of any gender identity needs of those attending court, trans people are likely to:

  • Feel uncomfortable, resentful or offended by what occurs in court.

  • Feel that an injustice has occurred.

  • In some cases be treated unfairly and/or unjustly.

Section 9.5, following, provides additional information and practical guidance about ways of treating trans people, so as to reduce the likelihood of these problems occurring.

9.5 Practical considerations

9.5.1 Mode of address and gender to use

9.5.2 Appearance and behaviour

9.5.3 Language and terminology

9.5.4 The impact of gender identity issues on any behaviour relevant to the matter(s) before the court

9.5.5 Directions to the jury — points to consider

As indicated at various points in 9.5, it is important that you ensure that the jury does not allow any ignorance of gender or sexual identity issues, or stereotyped or false assumptions about trans or intersex people to unfairly influence their judgment.

9.5.6 Sentencing, other decisions and judgment or decision writing — points to consider

9.6 Further information or help

The following community organisations, funded by the Department of Family & Community Services and supported by the NSW Department of Health, can provide further information or expertise about sex or gender identity, and also about other appropriate organisations, individuals, and/or written material, as necessary.

The Gender Centre
41-43 Parramatta Rd
PO Box 266
Annandale NSW 2038
Ph: (02) 9519 7599
Fax: (02) 9519 8200
www.gendercentre.org.au

Inner City Legal Centre
(includes Transgender and Intersex Legal Advice Service)
Basement, Kings Cross Library
50–52 Darlinghurst Rd
Kings Cross NSW 2011
PO Box 25
Potts Point NSW 1335
Phone: 1800 244 481
Fax 02 9360 5941
www.iclc.org.au

Organisation Intersex International Australia
PO Box 46
Newtown NSW 2042

9.7 Further reading

American Psychiatric Association, The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), 4th edn, Text Revision, American Psychiatric Association, Washington, DC, 2000.

Australian Human Rights Commission, “Sex Files: the legal recognition of sex in documents and government records”, 2009, at www.humanrights.gov.au/genderdiversity/sex_files2009.html, accessed 29 November 2017.

The Gender Centre’s website, at www.gendercentre.org.au, accessed 29 November 2017.

Supreme Court of Queensland, Equal Treatment Benchbook, 2nd edn, 2016, Supreme Court of Queensland Library, Brisbane, Chapter 15, “Gender identity and sexual orientation” at www.courts.qld.gov.au/__data/assets/pdf_file/0004/94054/s-etbb.pdf, accessed 29 November 2017.

Judicial College (UK), Equal Treatment Bench Book, 2013, Chapter 8, “Gender reassignment” at www.judiciary.gov.uk/publications/equal-treatment-bench-book/, accessed 29 November 2017.

Australian Research Centre in Sex, Health & Society, Tranznation: A report on the health and wellbeing of transgendered people in Australia and New Zealand, 2007, at www.glhv.org.au/files/Tranznation_Report.pdf, accessed 29 November 2017.

Young and Well Cooperative Research Centre, Growing up queer: Issues facing young Australians who are gender variant and sexuality diverse, 2014, at www.glhv.org.au/files/Growing_Up_Queer2014.pdf, accessed 29 November 2017.

9.8 Your comments

The Judicial Commission of NSW welcomes your feedback on how we could improve the Equality before the Law Bench Book.

We would be particularly interested in receiving relevant practice examples (including any relevant model directions) that you would like to share with other judicial officers.

In addition, you may discover errors, or wish to add further references to legislation, case law, specific Sections of other Bench Books, discussion or research material.

Section 11 contains information about how to send us your feedback.



[1] Unless otherwise indicated, the information in 9.1 is drawn from The Gender Centre’s website, at www.gendercentre.org.au, accessed 2 November 2017. The Gender Centre is a community or non-government organisation based in Sydney which is funded by the NSW Department of Human Services, Community Services under the Specialist Homeless Service program and supported by the NSW Department of Health to provide support services to people facing gender identity issues.

[2] “Data from smaller countries in Europe with access to total population statistics and referrals suggest that roughly 1 per 30,000 adult males and 1 per 100,000 adult females seek sex gender reassignment surgery” — American Psychiatric Association, The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), 4th edn, Text Revision, American Psychiatric Association, Washington, DC, 308.9. Note that these statistics only identify those who seek a sex affirmation procedure and therefore indicate a much lower incidence than the reality. These figures are under constant revision. According to information received from The Gender Centre, the population trend is towards parity for MtF and FtM change — see n 1.

[3] Although, see n 2.

[4] “Intersexuality 101”, Kits and Factsheet, The Gender Centre Inc, at www.gendercentre.org.au/kits.htm, accessed 2 November 2017.

[5] Anti-Discrimination Act 1977 (NSW), ss 38A–38T. The Australian Human Rights Commission released a Discussion Paper in October 2010 and announced a consultation into federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity. In 2013, the Federal Government amended the Sex Discrimination Act 1984 (Cth) with the introduction of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth) which added protections for gender identity (s 5B) and intersex status (s 5C).

[6] See, for example, J Irwin, Australian Centre for Lesbian and Gay Research, The pink ceiling is too low — Workplace experiences of lesbians, gay men and transgender people, 1999, Australian Centre For Lesbian and Gay Research, University of Sydney, at http://glrl.org.au/images/stories/the_pink_ceiling_is_too_low.pdf, accessed 16 February 2011.

[7] However, according to Elizabeth Riley, General Manager, Gender Centre some studies undertaken may not be statistically reliable, but supported a much higher figure of 60%. She confirmed that anecdotal information collected in 2011 from The Gender Centre about their clients supports this figure.

[8] JM Grant, L Mottet, et al (2011) Injustice at every turn: A report of the National Transgender Discrimination Survey, Washington: The National Gay and Lesbian Task Force and the National Center for Transgender Equality.

[9] Queer Rights At Work, Queer Rights At Work Conference, Brisbane, 20 June 2008, Graeme Innes AM, Human Rights Commissioner, Human Rights and Equal Opportunity Commission.

[10] lesbian, gay, bisexual, trans, intersex and queer

[11] Another Closet, publication of the Inner City Legal Centre, LGBTIQ, domestic violence interagency; ACON, p 13, at www.anothercloset.com.au, accessed 2 November 2017.

[12] Supreme Court of Queensland, Equal Treatment Benchbook, 2005, Supreme Court of Queensland Library, Brisbane, p 252, at www.courts.qld.gov.au/The_Equal_Treatment_Bench_Book/S-ETBB.pdf, accessed 16 February 2011.

[13] L Hillier, et al (2010) Writing themselves in 3, La Trobe University, Melbourne.

[14] Supporting same sex attracted, intersex and gender diverse students, Policy paper, Department for Education and Child Development, South Australian Government, at https://www.decd.sa.gov.au/sites/g/files/net691/f/supporting-same-sex-attracted-intersex-and-gender-diverse-students-policy.pdf, accessed 2 November 2017.

[15] According to an American study, sexual minorities were disproportionately incarcerated: 9.3% of men in prison, 6.2% of men in jail, 42.1% of women in prison, and 35.7% of women in jail were sexual minorities. See IH Meyer et al, “Incarceration Rates and Traits of Sexual Minorities in the United States: National Inmate Survey, 2011–2012” (2017) 107(2) American Journal of Public Health 234.

[16] E Smith, et al (2014). From Blues to Rainbows: Mental health and wellbeing of gender diverse and transgender young people in Australia. Melbourne: The Australian Research Centre in Sex, Health, and Society.

[17] PwC, LGBTI perspectives on workplace inclusion, 2016, p 5, at https://www.pwc.com.au/publications/pdf/workplace-inclusion-survey-jun16.pdf, accessed 29 November 2017.

[18] M Couch, et al, Tranznation: A report on the health and wellbeing of transgendered people in Australia and New Zealand, 2007.

[19] The information in 9.2.1 is drawn from The Gender Centre’s website, at <www.gendercentre.org.au, accessed 16 February 2011.

[20] Note the debate about definitions of sex and gender diversity at 4.1 of Australian Human Rights Commission, “Sex Files: the legal recognition of sex in documents and government records”, 2009, at www.humanrights.gov.au/genderdiversity/sex_files2009.html, accessed 16 February 2011.

[21] The information in 9.2.2 is largely drawn from The Gender Centre’s website, see n 19.

[22] Gender Centre website, “Kits and Fact Sheets”, at https://gendercentre.org.au/resources/kits-fact-sheets/family-friends, accessed 29 November 2017.

[23] Kevin v Attorney-General (Cth) [2001] Fam CA 1074; (2001) 165 FLR 404 at [224].

[24] The information in 9.2.2.2 is drawn from the Organisation Intersex Australia’s website, at <https://oii.org.au/18106/what-is-intersex>, accessed 2 November 2017 and from The Gender Centre’s website, see n 19; Supreme Court of Queensland, Equal Treatment Benchbook, 2005, Supreme Court of Queensland Library, Brisbane, p 252; for information about intersexuality and the gender assigned early in life, see Kevin v Attorney-General (Cth) [2001] particularly at [209]–[273], above n 23.

[25] Supreme Court of Queensland, Equal Treatment Benchbook, 2nd edn, see n 12, p 188.

[26] Births, Deaths and Marriages Registration Act 1995 (NSW), ss 32B and 32DA.

[27] Anti-Discrimination Board of NSW, Transgender discrimination — Your rights, fact sheet, at <www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/pages/adb_transgender>, accessed 16 February 2011.

[28] [2001] Fam CA 1074; (2001) 165 FLR 404.

[29] Attorney-General (Cth) v Kevin [2003] Fam CA 94; (2003) 172 FLR 300.

[31] For a discussion of Kevin v Attorney-General (Cth) by the lawyer who appeared for Kevin, see R Wallbank, “Neglected Communities — The Legal Environment Following Re Kevin: New Perceptions And Strategies”, speech presented at Parliament House, 25 February 2003, at <www.gendercentre.org.au/neglected2.htm>, accessed 16 February 2011.

[32] Supreme Court of Queensland, Equal Treatment Benchbook, 2005, see n 12, p 251.

[33] Note that s 41 of the Evidence Act 1995 (NSW) provides that a judicial officer must disallow improper questions (for example, misleading or confusing, or unduly annoying, harassing, intimidating, offensive, humiliating or repetitive) questions. and also provides that questions must not be put to a witness in a “manner or tone that is belittling, insulting or otherwise inappropriate” or “has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability”. Sections 26 and 29(1) of the Evidence Act 1995 also enable the court to control the way in which witnesses are questioned and the manner and form of questioning of witnesses, and s 135(b) of the Evidence Act 1995 allows you to exclude any evidence that is unfairly prejudicial to a party or is misleading or confusing.

[34] ibid.

[35] Crimes Act 1900 (NSW), s 61H.

[36] See n 33.

[37] ibid.

[38] Judicial Commission of New South Wales, Criminal Trial Courts Bench Book, 2002–, Sydney, at <www.judcom.nsw.gov.au/publications/benchbks/criminal>, accessed 16 February 2011.

[39] Judicial Commission of New South Wales, Local Courts Bench Book, 1988–, Sydney, at <www.judcom.nsw.gov.au/publications/benchbks/local>, accessed 16 February 2011.

[40] The “Court of Morals” Direction, NSW Criminal Law Review Division, Homosexual Advance Defence: Final Report of the Working Party, 1998, para 6.11, at www.justice.nsw.gov.au/justicepolicy/Documents/homosexualadvancedefence1998.doc, accessed 5 December 2017.

[41] See also Judicial Commission of New South Wales, Sentencing Bench Book, 2006, Sydney, “Sentencing procedures generally” at [9-700], at www.judcom.nsw.gov.au/publications/benchbks/sentencing/toc-sentencing_procedures_generally.html, accessed 29 November 2017 and R v Henry (1999) NSWLR 346 at [10]–[11].

[42] Crimes (Sentencing Procedure) Act 1999, s 30A. See Pt 3, Div 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the Charter of Victims Rights (which allows the victim access to information and assistance for the preparation of any such statement). Note that any such statement should be made available for the prisoner to read, but the prisoner must not be allowed to retain it.