Fail­ing to use trans­gen­der terms could end in court

The Weekend Australian - - THE NATION - JOE KELLY

Tas­ma­nia’s con­tro­ver­sial trans­gen­der re­forms could con­tain a “com­pelled speech” pro­vi­sion mak­ing it il­le­gal for a per­son to refuse the use of an in­di­vid­ual’s pre­ferred pro­noun, ac­cord­ing to fresh le­gal warn­ings.

Com­pelled speech was the is­sue that helped pro­pel clin­i­cal psy­chol­o­gist Jor­dan Peter­son to in­ter­na­tional promi­nence af­ter he spoke out against the in­tro­duc­tion of Cana­dian laws which he ar­gued would “re­quire peo­ple un­der the threat of le­gal pun­ish­ment to em­ploy cer­tain words”.

The Tas­ma­nian re­forms have been de­ferred for con­sid­er­a­tion by the state’s in­de­pen­dent-dom­i­nated up­per house un­til March af­ter amend­ments were made to a gov­ern­ment bill by the op­po­si­tion par­ties and Lib­eral Speaker Sue Hickey.

The amend­ments would make gen­der op­tional on birth cer­tifi­cates. They have been at­tacked by Scott Mor­ri­son as “ridicu­lous” while Bill Shorten has con­firmed there are no plans to adopt the mea­sure in the party plat­form at the ALP na­tional con­fer­ence

Greg Walsh, a se­nior lec­turer at the Uni­ver­sity of Notre Dame Aus­tralia and au­thor of Re­li­gious Schools and Dis­crim­i­na­tion Law, yes­ter­day said there were fur­ther prob­lems with the Tas­ma­nian bill.

“The Tas­ma­nian par­lia­ment’s pro­posed changes to its anti-dis- crim­i­na­tion leg­is­la­tion could make it il­le­gal for a per­son to not ac­cept a trans­gen­der per­son’s gen­der iden­tity, such as by de­clin­ing to use their pre­ferred per­sonal pro­noun,” Dr Walsh said.

“The pro­posed amend­ments will add the term ‘gen­der ex­pres­sion’ into the act, which is de­fined as in­clud­ing ‘per­sonal ref­er­ences that man­i­fest or ex­press gen­der or gen­der iden­tity’.

“These changes will make it more likely that a per­son who ex­presses their un­der­stand­ing that gen­der is de­ter­mined by our bi­ol­ogy will breach the broad vil­i­fi­ca­tion pro­vi­sions in Tas­ma­nia that pro­hibit “con­duct which of­fends, hu­mil­i­ates, in­tim­i­dates, in­sults or ridicules on grounds in­clud­ing gen­der iden­tity’’.

“Although it is ad­mirable that par­lia­men­tar­i­ans want to en­sure those who are trans­gen­der are re­spected, the at­tempt to use state power to force in­di­vid­u­als to use lan­guage that con­tra­dicts their deeply held be­liefs is com­pletely un­ac­cept­able.”

Ad­vance Aus­tralia, es­tab­lished as a con­ser­va­tive ri­val to ac­tivist group GetUp, also made clear it would tar­get the in­tro­duc­tion of com­pelled speech. The or­gan­i­sa­tion’s na­tional di­rec­tor, Ger­ard Benedet, said the Tas­ma­nian bill would set a “dan­ger­ous prece­dent” and could re­sult in peo­ple be­ing hauled be­fore an­tidis­crim­i­na­tion tri­bunals. “It’s a slip­pery slope. What’s next?” he said. “It is com­pelled speech.

“If a trans per­son said to me, ‘I would pre­fer it if you called me or ad­dress me by X’, out of re­spect, you would do it. But the gov­ern­ment has no place telling you that you must say that. The gov­ern­ment has no right to tell you how you should think, speak or act.

“My is­sue is with the com­pelled na­ture of it. That peo­ple who choose not to re­fer to the per­son us­ing their pre­ferred pro­noun could end up in an anti-dis­crim­i­na­tion tri­bunal or a com­mis­sion where the gov­ern­ment forces them to say some­thing they are not com­fort­able with.”

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