COVER STORY
Sometimes there’s more variety to real life than the boy-girl divide of puppy dog tails and sugar and spice from childhood nursery rhymes
There are many systemic problems that derive from Tasmania’s rather draconian laws in relation to gender transition
S itting in an inner city cafe, Oliver Garden leans forward, elbows on parted knees, thoughtfully stroking the light scruff on his chin as he talks, eyes wandering off to one side as he recalls an anecdote.
“Yeah, I recently had to go to the gynaecology department at the hospital. I’ve been before but this time there was a new receptionist there and I said ‘hi, my name’s Oliver and I have an appointment at 9.45.
“She looks at me and says ‘Oliver Garden?’ like she thought I’d come to the wrong department. Then she types my name in and says ‘oh … yes, you do!’ and she finally put two and two together.” At this point Garden bursts into laughter, either oblivious to, or unconcerned about the bloke at a nearby table who has been giving us curious sideways glances since the start of the conversation. “That sort of thing does still happen and I thought it was pretty funny. I mean, you have to be able to laugh about it because if you can’t, it’s a slippery slope to somewhere dark.”
Garden, 23 from Launceston, is transgender. Born female, he transitioned to male three years ago after a lifetime of feeling uncomfortable in his own skin, and a brief but tortured period of struggling with the implications of changing his gender.
For a multitude of reasons he has not had gender reassignment surgery, but these days he quite confidently goes through life as a man and has never been happier.
While Garden faces incidents like the gynaecology story with remarkable good humour, his experiences in this regard are quite typical of the daily challenges faced by other transgender, intersex and non-binary gendered people in Tasmania. Even putting aside the lingering bigotry and discrimination that transgender and gender diverse people still suffer at the hands of intolerant or uninformed individuals in the community, there are many systemic problems caused by Tasmania’s oddly outdated laws regarding gender diversity and gender transition.
According to the Births, Deaths and Marriages Registration Act 1999, a transgender person’s birth certificate can only be amended to reflect their new gender if they are unmarried and have undergone gender reassignment surgery.
These stipulations are considered by the transgender and gender diverse community to be placing unnecessarily difficult barriers in front of those wishing to identify as something other than the biological sex shown on their birth records.
The laws show a fundamental misunderstanding of what it means to be transgender and the often traumatic process endured by those who transition from one gender to another, or who do not fit the traditional binary definitions of gender at all.
There are few official documents now which still show a person’s gender, but some still do, and when a primary document like a birth record shows the previous gender of someone who has transitioned, it can cause problems, as well as being upsetting to someone who has worked to embrace a new identity.
When the Federal Government introduced marriage equality legislation in December last year, formally recognising same-sex marriage, it also stipulated that all state governments should amend their laws requiring transgender people to be divorced or single in order to have their new gender recognised, before the end of this year.
Some other states have already made these changes but Tasmania is still in the process of redrafting its laws, which is why a new group, Transforming Tasmania, has been launched to lobby for and help steer the much-needed reforms. Group spokesperson Martine Delaney says the reforms should go further than simply removing the divorce stipulation, but should also remove the requirement for surgery, ensure transgender Tasmanians are treated no differently from other Tasmanians, and incorporate more protections for children who are born intersex (sexual characteristics that do not match typical definitions of male and female) from having unnecessary genital surgeries.
“Tasmania’s strong ‘Yes vote’ in last year’s marriage equality survey makes us optimistic that we have the support of our fellow Tasmanians in our campaign for full equality,” she says.
“Our campaign will focus on lobbying politicians across all parties, gathering support from community organisations and encouraging individual Tasmanians to voice their support through petitions and webforms.”
Tasmania has come a long way in the last 20 years when it comes to recognising the basic human rights of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community. Previously a crime punishable with imprisonment, homosexuality was decriminalised in Tasmania in 1997 — “not long enough ago”, in the understated words of comedian Hannah Gadsby — and a 1935 law banning men from wearing women’s clothing from sundown to sunrise was repealed in late 2000.
But much work still needs to be done and transgender and gender-diverse rights are emerging as the next battleground.
“Tasmania has the worst history of any state in terms of its treatment of transgender people,” says veteran LGBTI rights campaigner Rodney Croome. “Tasmania criminalised cross dressing until 2000, and we have these draconian requirements for recognising someone’s transition from one gender to another, but this is our opportunity to go from some of the worst laws in the country to some of the best.
“We can have model legislation in Tasmania, better than any state, and up to international standards, setting an example for the rest of the nation.”
Delaney knows as well as anybody how difficult it can be to grow up with gender dysphoria, that feeling that your psychological and emotional gender is different from the biological sex you are born with. Born male, she realised in her teens that she was unhappy living as a boy and fitting in with the societal expectations for how boys should act. But despite knowing she was supposed to be a girl, it was not until she was in her early 40s that she found the courage to act on those lifelong feelings and transition to being female.
It was not an easy road but Delaney says she has been far happier in herself ever since making her transition. She hopes that through persistent lobbying for better laws, things might be that much easier for others facing the same challenges.
“The law requiring you to be unmarried to have your gender changed on your birth certificate makes absolutely no sense, never did,” she says. “If two people are married and one of them transitions to a different gender, and the relationship survives that transition, then that is a very strong relationship.
“But then, in order for the transgender partner to have that change recognised, the couple must divorce. And since the legal requirement for being granted a divorce is to demonstrate irreconcilable differences, that couple would have to commit perjury, pretend they don’t get along any more, just to get a divorce. All just to have one letter changed on a government document. And then they’re free to remarry. It’s ridiculous.
“And the surgery requirements are the most severe in the country – expecting a trans person to undergo irreversible gender reassignment surgery in order to be recognised. In effect, the government requires you to sterilise yourself if you want your birth certificate changed.
“That law is draconian even by international standards. New Zealand and the UK have no requirement for surgery and 19 other nations, including Ireland, Malta and Pakistan, require no medical intervention at all for a trans person to have their change of gender recognised, so we are lagging behind here.”
And that little letter on the birth certificate matters. For proof, look no further than the case of Marjorie Harwood, a trans woman who was jailed on theft charges about a year ago and, since her birth certificate still listed her as male, she was housed in the male prison population.