Equity and natural justice under the law - all genders at the intersections

By Sally Goldner

CW: sexual harassment, misuse of police power, queerphobia and other forms of discrimination.

Are we equal before the law? Theoretically yes, practically of course — no. Sadly our laws, regulations and related processes are established and run in ways that are cisgenderist* and conform to societal expectations of gender, as well as many other forms of bias.

I am a person who, among other aspects in my life, identifies as a trans and bi/pan woman. I identify strongly with two aspects of neuroprocessing (sometimes called neurodivergence), namely introversion and the highly sensitive person trait. I also experience Cyclothymia, a psychological situation characterised by emotional highs and lows. I am a trauma survivor, in that I spent 13 years at an ‘all-boys’ school and experienced emotionally distant and dismissive behaviours from family members, teachers and school principals.

I strongly acknowledge that I carry many forms of privilege including that I am neither Aboriginal nor Torres Strait Islander, I am white, born in Australia, educated and I pass as middle-class. While I probably have income and an occupation that others might perceive as middle class, I simply don’t connect with the term. The broad issues I raise in this piece, regarding areas such as documentation and health care, become overwhelmingly larger for trans women and non-binary people without my forms of privilege and the support and networks to which I have access.

Legal issues often faced by trans and non-binary people include laws and systems that deny our identities, and processes that create barriers to affirming those authentic identities.

In Australia, only five of eight states and territories have birth certificate laws that could be considered inclusive from trans and gender diverse (TGD) perspectives. Critical issues include not requiring surgery, minors being able to change the marker with parent/guardian approval and no medical ‘sign-off.’  Two jurisdictions (NSW and Queensland) still require surgery prior to changing the sex marker. Minors cannot change their marker in three jurisdictions (NSW, WA and Queensland) and the same three jurisdictions do not allow for sex marker options other than male or female.

Costs for trans-related surgeries are extremely prohibitive. For those assigned male at birth in Australia, lower surgery costs approximately $16,000 and is not fully covered by Medicare or private health insurance. Only some of the actual surgery is covered, creating greater legal complexity. For those assigned female at birth, the out-of-pocket amount is approximately $70,000. Whatever coverage that exists in the private sector can often involve a pathologising ‘diagnosis’ of a psychiatric condition that can limit access to other forms of insurance e.g. income protection insurance. Pathways for both minors and adults are often not clearly and transparently mapped out in easy to understand language. This also assumes English is a person’s usual language spoken, which can be another barrier to access.

Exemptions to anti-discrimination laws exist in seven of the eight states and territories and federally in relation to ‘competitive sport’ for trans and non-binary people as well as intersex people. Competitive is not defined, creating yet another legal complication.

Services such as health care, custody (prisons, detention centres and more) and schools are often gendered. For example, prostate care is advertised only to males, breast checks only to females. In these examples, trans and gender diverse people can face discrimination. TGD people may end up having to educate a service provider, thereby wasting an appointment, and then having to pay the service provider afterwards for providing the education to them.

In all of these situations, even when laws are clear, societal attitudes may not have completely caught up in their understanding and implementation of the law.

This creates another barrier, in as much that access to knowledgeable and respectful legal services may be limited, and lower incomes often prevent access to tribunals and courts if conciliation fails.

I myself have had three situations of note where barriers exist in regards to dealing with law and justice. The first was dealing with police in 1998. I was targeted by two plain-clothes police officers while eating lunch near a park in Melbourne after a stressful morning at a new job. One of the officers said in an aggressive tone of voice, ‘This is a park inhabited by paedophiles, what are you doing here?’ as if to imply, ‘You’re transgender, therefore you’re a paedophile.’

When I complained about their conduct to what is now the Professional Standards Command, I was utterly dissatisfied with the response. I was told, ‘That’s officer so-and-so, he’s a good family man.’ As such, a record still exists that implies a hugely false allegation about who I am. Given the extremely macho attitude of police, I doubt I would succeed in altering that record.

The second incident involving police took place in February 2020. Driving home after a meeting, I passed a booze bus that was operating in a side street. A police officer had his back to me, some cars were being pulled over and others were travelling through, so I drove on. I heard a bang on my car. To have such a sudden noise at close quarters for me as a Highly Sensitive Person, is startling; it turned out this was the officer unnecessarily and illegally thumping on my car. He made no other efforts to communicate with me, and I continued to drive.

A few minutes later I was followed by a police car and pulled over. The officer was extremely verbally intense and I became distressed at his manner. Despite saying I could decline to comment, he continued to ask questions in an intimidating and interrogative manner.  He also made threatening remarks when checking my licence, mentioning that I had a ‘long history’, that I would be ‘put on a licence review’, and that ‘people like you think you are above the law.’

He essentially implied that I was a criminal for having prior speeding fines. The officer accompanying him did nothing to intervene in any way. I was charged with failing to obey the command of a police officer, despite zero communication to pull over near the booze bus and I was issued with a fine of $330 and three demerit points.

I felt incredibly intimidated the entire time and at no point was I asked to take a breath test. On arriving home, I needed to call a colleague, who is an experienced mental health professional, and I clearly experienced shock and distress at the hostility.

Five months later, after much time, effort, with the added disadvantages and pressures of lockdown creating delays and some support from a community legal service, I put in an appeal with letters of support. I received what seemed like a computer-generated letter from Fines Victoria rejecting my appeal and started investigating numerous dead-ends around ‘work and development processes’: a component of complicated and patronising remedies as part of Fines Victoria regulations to deal with my ‘mental health issues’. Few psychologists work in this area, the process is complex and hard to understand, and it is not clear whether recommended health professionals would be trauma informed, LGBTIQA+ friendly and understand my neuroprocessing.

Unexpectedly, I received a call from a senior officer (interestingly, a female). She had reviewed bodycam footage of both my passing the booze bus which showed there was no command to pull over and the second interaction, which therefore became total harassment. She described the police behaviour as ‘inappropriate, over-the-top and unprofessional’. The fine has now been withdrawn. Whether the police involved have learned from the situation or expressed remorse is unknown to me.

My third encounter with legal process involves my belief I have been on the receiving end of sexual harassment — with a difference. My perpetrator was a queer (her word) cisgender (my word) woman. Using the definition from the Australian Human Rights Commission’s website, sexual harassment is constituted by ‘unwelcome sexual advance, request for sexual favours or conduct of a sexual nature in relation to the person harassed in circumstances where a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated’. I believe I would have a prima facie case if I took further action through the Australian Human Rights Commission. Would I take that action?

I am acutely aware of the invalidation and the large and unfair barriers faced by women when raising situations of harassment involving alleged perpetration by men. That I have been harassed by another woman puts up another barrier again. Trying to raise this issue has seen people ‘glaze over’ when I mention the perpetrator is a woman. Would a court understand that this sort of behaviour involves more than gender but various forms of misuse of power, including misuse of power in relation to neuroprocessing?

Aside from a legal system steeped in gender normative thinking, LGBTIQA+ communities often face the pressure of ‘minority perfection’ that stops us from speaking up about bad behaviour within our own communities.

Internalised prejudice from some people in LGBTIQA+ communities sees some of those people cover up shortcomings to appear ‘acceptable’ to those in positions of influence in broader communities. Lateral hostility within LGBTIQA+ communities is also largely buried in this way. Finally, on a related note, LGBTIQA+ people who experience family violence face parallel issues regarding overcoming the unconscious biases created by a gendered lens, e.g. no accomodation for trans men and non-binary people.

Overall, a key factor in the ongoing discrimination we face is a legal system designed for commercial law disputes and not human issues such as family violence, vilification, harassment and discrimination. I think that legal processes are designed in a very masculine way: aggressive, win-lose, coldly ‘factual’ and ‘logical’ and they deny, reject and disaffirm feelings and emotions.

Similarly, police processes are designed with limited perspective of the relationships between police and the public, without any consultation from the public. Police also need to be trained to understand that not everyone who appears nervous or anxious appears that way because of wrongdoing and that this toxically masculine approach can be traumatising for many people.

What can be done to overcome these barriers? Often people from broader society still need basic education about trans and gender diverse people and also other forms of diversity. These biases may be unconscious but can often be deliberate and involve misuses of power.

We need to ensure that the law, the people and the processes that enforce it and society, fully understand concepts such as equality and equity. Everyone, including trans women and non-binary people will benefit hugely from any improvement.

Sally Goldner’s twenty-year-plus involvement in Victoria’s LGBTIQA+ communities include Transgender Victoria, co-facilitating Trans family, 3CR’s Out of the Pan and Bisexual Alliance Victoria Treasurer. She was the 2015 LGBTI Victorian of the Year, joined the Victorian Women’s Honour Roll in 2016 and received an Order of Australia in 2019.

 This article was first published by the Feminist Writers Festival.