Our silent war — Part 1: What is happening?

In the leadup to Transgender Day of Visibility (31 March) 2022, I am posting Our silent war, an analysis and research series concerning the ongoing and intensifying global war on trans people as it has unfolded in the year to TDoV 2022. I intend for the series to be read by people who are cisgender (or “cis”; i.e., not transgender).

The purpose of the series is to summarise:

  1. What is happening;
  2. Why it is said to be happening;
  3. Why it is actually happening;
  4. What can be done about it.

This post is the first installment in that series.

What is happening?

Internationally and in Australia, trans people are under attack.

I am an Australian — specifically a Queenslander — so this post focuses primarily on the Australian federal and state theatres of the attack, with references made for the sake of context to relevant incidents in Australia’s major international partner states.

The fronts on which the international attack is taking place include national and subnational legislatures, major non-governmental organisations, and the mass media. This analysis focuses primarily on the legislative front of the attack, whose existence and effects are easier to demonstrate to a general audience.

For the sake of remaining current, this analysis focuses primarily on legislative efforts which have seen some sort of activity (bills passed, blocked, referred to committee, etc.) in the year to 31 March 2022. Where appropriate to provide context, some earlier bills are also referenced. All Australian Acts, Bills, and motions mentioned in the text have an entry in the reference list.

Choose your weapon

The legislative instruments which are being used at present to press the attack are of the following kinds.

“Human wrongs” laws

This term describes a category of laws which are supposedly intended to protect an acknowledged basic human right, but which, in effect, actually create a new right to discriminate against trans people in circumstances where it would otherwise be illegal.

“Religious discrimination” laws (RDLs)

This term describes a category of measures which purport to protect a right to freedom of religious expression, observance, and practice. However, in effect, they actually establish a right to discriminate against trans people which is sufficiently broad and unchecked that it impedes trans people’s participation in secular society.

The most prominent RDL in Australia in the last year was the Religious Discrimination Bill 2022 (Cth) (“the RDB”). Had it been passed in its original 2019 draft, the RDB would effectively have rendered otherwise-unlawful anti-trans discrimination lawful if it was undertaken nominally on religious grounds, including (Equality Australia, 2020a & 2020b):

  • refusing to provide medical care
  • refusing to fill entirely legitimate prescriptions
  • creating a hostile work or medical care environment environment through discriminatory and hateful statements
  • damaging the reputation of one’s employer by being overtly transphobic.

In its final 2022 draft, the RDB would have still allowed educational institutions to exclude trans students and engage in employment discrimination against trans staff (Karp, 2022). While the Bill was voted down partly on those grounds, Senator Kristina Keneally, the Shadow Home Affairs Minister, confirmed that the Australian Labor Party intended to pass an RDB of its own if elected to government, and that a Labor RDB would likely make the same allowances (Cockburn, 2022).

At a state level, the Parliament of New South Wales also considered the Anti-Discrimination (Religious Freedoms and Equality) Bill 2020 (NSW), introduced by Mark Latham MLC (PHON), which would have had extraordinarily similar effects to the 2019 draft of the federal RDB (Equality Australia et al., n.d.).

“Free speech” laws (FSLs)

This term describes a category of laws which purport to protect a right to freedom of opinion and expression. However, in effect, they actually establish a right to degrade, vilify, and menace trans people which is sufficiently broad and unchecked that it impedes trans people’s participation in society generally.

The argument underlying FSLs likely emerged, in its modern form, from the debate surrounding the Parliament of Canada’s Bill C-16 of 2016, which amended the Canadian Human Rights Act and the Criminal Code to outlaw anti-trans discrimination in services, employment and accommodation, and to ban hate propaganda and incitement of genocide against trans people.

Shortly prior to Bill C-16’s passage, a member of the University of Toronto’s psychology faculty, Jordan Peterson, claimed that Bill C-16 would have the effect of compelling speech, and would make people who accidentally failed to use a trans person’s correct pronouns subject to prosecution for hate speech. Legal scholars quickly established that Peterson’s argument was a lie (Khandaker, 2016; Dragicevic, n.d.), but it brought him international prominence and provided the archetype of the modern anti-trans FSL as a genre.

The most recent prominent FSL bill in Australia was the Anti-Discrimination (Right to Use Gender-Specific Language) Bill 2018 (Qld), introduced by Robbie Katter MP (KAP–Traeger), which was voted down by the Parliament of Queensland in August 2020.

“Sex-based rights” laws

This term describes a category of laws which assert the existence of a human right to the use of “single-sex spaces.” These are spaces to which access is controlled on the basis of sex assigned at birth; i.e., rather than requiring men to use men’s spaces and women to use women’s spaces, these laws force anyone born with a penis to use “men’s” spaces, and anyone born with a vagina to use “women’s” spaces.

Bathroom bills

This term describes a category of laws which require trans women to use men’s bathrooms, and require trans men to use women’s bathrooms.

The rationale given for this is typically “women’s safety.” However, allowing trans people to use the correct bathroom for their gender has no impact on cis bathroom users’ safety (Percelay, 2015; Hasenbush et al., 2018).

Meanwhile, enforcing the expectation that trans people will use the bathroom corresponding to their assigned sex provides an excuse for violence against them (Broverman, 2018/2019; Kaur & Rivera, 2020), and causes them to develop significant health problems attempting to avoid that violence (Herman, 2013), as well as dangerous levels of stress from being placed in a position where they can’t exercise a basic bodily function because it might cost them their life (Price-Feeney et al., 2020).

The standalone bathroom bill as a legislative measure is, at present, more or less in eclipse in Australia. However, rhetoric and non-state measures against trans people having access to bathrooms have formed and continue to form a significant component of anti-trans activism in Australia (McAvan, 2017; for an example of anti-trans bathroom propaganda in the wild, see Smith & Stevens, 2020).

“Save women’s sport” (SWS) laws

This term describes a category of laws which purport to protect the fairness and integrity of women’s sports by barring transgender women from participating, on the grounds that transgender women pose a safety risk and/or have an unfair advantage.

Efforts to implement SWS measures continue in spite of the fact that their architects refuse to consult cis sportswomen and sporting organisations, who have repeatedly been extremely clear that they don’t need or want restrictions of this kind (e.g. Alvarez, 2017; Webb, 2020a & 2020b; Kliegman, 2022; etc.).

Moreover, previous attempts to implement these restrictions through non-state bodies have been met by discord and rebellion among cis female player bases (e.g. Brassil & Longman, 2020) to the point that the bodies tasked with implementing those rules have instead chosen to ignore or overrule them (e.g. USA Rugby, 2020; Rugby Canada, 2020; Donnelly & Kidd, 2020; etc.).

The most prominent Australian SWS measure of the last year is the Sex Discrimination and Other Legislation Amendment (Save Women’s Sport) Bill 2022 (Cth), introduced in the Australian Senate on 10 February 2022 by Senator Claire Chandler (Lib.–Tasmania). As usual, “no major sport [was] consulted on the move,” and Netball Australia responded by explicitly “suggest[ing] sports should be left to make their own decisions” (Robinson & Ward, 2022).

Section 28 laws

This term describes a category of laws which ban public institutions, historically local governments and state schools, from discussing the existence of gender diversity and queer sexuality, to avoid “promoting” them. The name is a reference to a UK statute, Section 28 of the Local Government Act 1988, which banned discussion of homosexuality from 1988 through 2003 (“When gay became …,” 2000; “Section 28 …,” 2003).

Section 28 bills in Australia in the past year include the Education Legislation Amendment (Parental Rights) Bill 2020 (NSW), introduced in the New South Wales Legislative Council by Mark Latham MLC (PHON). Had it been passed, it would have prohibited schools from teaching that trans and gender diverse people exist; prohibited school counsellors from acknowledging trans students’ correct genders; and put teachers at risk of dismissal if they acknowledged trans students’ correct genders (Equality Australia, n.d.).

Youth transition bans

This term describes a category of laws which ban people under 18 from entering transition. So far these laws have focused primarily on barring access to medical transition therapies; statute and case law banning social transition (which consists simply of changing clothes and pronouns) has to date been relatively rare.

The usual rationale for enacting these bans is to “protect children.” To be clear, there is no chance that these bans protect children, nor is there any chance that their sponsors think they do. Paediatric and medical peak bodies consistently agree that paediatric medical transition therapies are safe, medically necessary, and must be made available. This view is consistent across all organisations, no matter how conservative; it is shared by, among others:

  • the American Academy of Pediatrics (Rafferty et al., 2018);
  • the Endocrine Society (Hembree et al., 2017), which issues standards of care for endocrine (hormone-related) healthcare worldwide;
  • the Royal Australian College of Physicians (Taylor, 2020), which regulates paediatric care in Australia;
  • the World and Australian Professional Associations for Transgender Health, WPATH and AusPATH (Coleman et al., 2011; Telfer et al., 2018).

The therapies available to minors are extremely conservative. The first-line treatment is puberty suppression (Hembree et al., op. cit.), whose sole effect is to safely halt the progression of puberty for the duration of treatment (Alegría, 2016), with effects that can be fully reversed if necessary (Rew et al., 2020). It is already deployed for precisely this reason for the treatment of precocious puberty in cisgender children (e.g. Boyar, 1978; Comite et al., 1981).

In June 2021, Senator Malcolm Roberts (PHON–Queensland) introduced a motion in the Senate condemning the provision of youth medical transition services. The motion was supported by the Government, but failed because six Liberal Senators crossed the floor. It has not so far been followed up by a coherent Bill.

In 2020, however, the Family Court of Australia (FCA) decided Re Imogen (No 6), which held that if one parent does not consent to a child’s access to puberty suppression, then in order for the child to access that treatment, an order must be made by the FCA, or at present its successor, the Federal Circuit and Family Court of Australia (FCFCA).

This decision, both in terms of its impact on children’s medical autonomy generally and its impact on trans people specifically, was broadly greeted with dismay even by the relatively cisgender-dominated and conservative medical community; medicolegal scholarship on the ramifications of Re Imogen continues to evolve (Kelly et al., 2022).

Puberty suppression is a time-sensitive treatment, and current practice holds that the necessity for puberty suppression can only be determined after the initial onset of puberty (Hembree et al., op. cit.). Forcing trans kids to wait for a court order to start puberty blockers, even though blockers have a risk burden of effectively zero, often means forcing them through the exact same irreversible changes that puberty suppression would have avoided.

In effect, making it easy for trans kids who need puberty suppression to be forced to seek the approval of the FCFCA largely nullifies puberty suppression as a therapeutic option.

Note: On legislative ambition

The categories above only relate to a measure’s primary purpose according to its originator. Any given measure may have effects significantly broader than its category implies.

For instance, the Sex Discrimination and Other Legislation Amendment (Save Women’s Sport) Bill 2022 is nominally a “save women’s sport” measure. However, s. 4 of Schedule 1 of the Bill amends the Sex Discrimination Act 1984 (Cth) (SDA) to define “man” and “woman,” for the purposes of the whole of that Act, to exclude trans people.

Federal law against anti-trans discrimination is in the SDA, per the Sex Discrimination Amendment (Sexual Orientation, Gender Identity, and Intersex Status) Act 2013, so passing the Save Women’s Sport Bill 2022 would actually be de facto repealing all Australian federal law against anti-trans discrimination in a single stroke.

Coming up

This first installment explored the form of the war against trans people in the Australian theatre.

The next installment will explore why the war is happening, according to its architects.


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