Discrimination against People of Transgender Identity
Transgender is defined as the state of one’s gender identity in which a person does not conform to the conventional notions of male or female gender roles, but combines or moves between these. Transgender is independent of sexual orientation, as a transgender person may identify themselves as heterosexual or homosexual. While people of transgender orientation have existed throughout history, recent changes in social values and advancements in social acceptance have seen an increase in the attention focused on these issues and a start towards the gradual acceptance of this minority.
The main issue in relation to transgender orientation is the gender binary established in society. It is expected that you are either male or female. The heavy focus on conforming to society’s gender classifications has caused problems for those who have classified themselves as transgender.
Typically, transgender discrimination is an issue in western countries, where there is a strong conservative and Christian influence on social beliefs. However, in countries where the gender binary isn’t a strict social norm, it isn’t such an issue. For example, in April 2014, the Indian Federal Court recognised the rights of transgender individuals and decided to classify transgender as a third gender. (India Court recognises transgender people as third gender (BBC News India 15/4/14))
In Australia, there has always been a small transgender minority. However, established social values and a strong religious presence have meant that, historically, there has been little attention on the issue.
Within Australia, transgender individuals suffer in two major aspects: classification and discrimination. As they do not classify themselves as either male or female, problems can arise in situations where this clarification may be necessary, such as in governmental records. This can also have legal implications, as acts can specifically reference a gender, e.g., “Marriage is defined as the union between a man and a woman” (Marriage Act 1961 (Cth)). Interestingly, the original act did not specifically define marriage. It was only in 2004 that the classical male and female definition was written into the act. While this does prove the existence of transgender discrimination in society today, it also means that the issues faced by minority groups, including the transgender, are starting to garner public attention.
As modern society progressed into the late 20th and early 21st century, the issue of transgender minority groups and their rights started to garner attention in the public domain. As public attention to the matter continued to increase, the legal system started to respond. In regards to the transgender issue, the legal system responded through two major approaches, the reformation of both common and statute law. These reforms have aimed at the gradual integration of the transgender minority into society through legal means.
While never an easy or simple process, the gradual reform of common law can be attributed to the consistent efforts of transgender individuals. Through numerous court cases, there has been a slow but steady reform of common law in regards to transgender rights. For example, the long and arduous legal struggles of ‘Norrie’, an androgynous person, have finally led to the recognition of a gender other than male or female. (NSW Registrar of Births Deaths and Marriages v Norrie [2014] HCA 11 (2 April 2014). The case itself managed to reach the High Court before a verdict was finally accepted.
The reform of the Australian statute laws, on the other hand, has reflected the changes in governmental approach. For example, rules regarding the classification of ‘male’ or ‘female’ in many pieces of legislation, such as the Custodial Escorts Regulation 2002, has been expanded to take into account transgender individuals (Legislation (Gay, Lesbian and Transgender) Amendment Act 2003). These changes