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Lessons for Australia from US Supreme Court on trans rights

by | Jul 1, 2020 | The Agenda

On 15 June, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 covers gay and transgender Americans from employment discrimination on the basis of sex. Justice Neil Gorsuch wrote that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex”.

Justice Gorsuch added: “Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalises an employee for being homosexual or transgender also violates Title VII.”

The most powerful implication from the Supreme Court ruling was that sex also includes gender expression and gender identity.

The most powerful implication from the Supreme Court ruling was that sex also includes gender expression and gender identity. It acknowledges in law who is considered a woman. This is the judgment of not only the four typically liberal justices, but Chief Justice John Roberts who was appointed by President George W. Bush and Justice Gorsuch, appointed by President Trump. Together, the 6-3 ruling is the most significant legal victory in transgender rights in American history.

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Outside the US Supreme Court following the landmark decision.

This sets the stage for three important developments. The first is future rulings that eliminate discrimination in civil law based on gender identity such as the ban on transgender military service and bans on transgender bathrooms or transgender participation in sports.

The second is the push back against this legal status for the LGBTQ community, which will likely include carve outs for “religious liberty”.

Lastly, the precedent for the LGBTQ victory from the Civil Rights Act creates a norm that may well provide constitutional protections on the basis of gender identity in the future.    

The debate about which women count as women has been considered in both the US and Australia over the past 20 years. An intersectional feminist critique notes that it is often white, cisgender, women from the Global North who have tried to establish who was an acceptable woman. This has historically erased the identity of Black and Brown women. Now we see white, cis women trying to define who counts as a women with regard to women who were assigned male at birth and men who were assigned female at birth.

Indeed, there has been a rise in so-called “feminists” who do not believe transgender people exist.

Indeed, there has been a rise in so-called “feminists” who do not believe transgender people exist.

An example of this appeared in tweets from author JK Rowling. On 6 June, she wrote: “If sex isn’t real, there’s no same-sex attraction.” Adding, “If sex isn’t real, the lived reality of women globally is erased.”

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JK Rowling was embroiled in a Twitter-storm following comments about trans people.

Here, Rowling is arguing that sex is solely based on biology. This not only erases people who are transgender but also people who are intersex and those who are non-binary. It is fascinating; therefore, to note that two Republican appointed members of the US Supreme Court are more progressive on trans issues than the author of Harry Potter.

In Australia, there are lessons to be learned. Most importantly is the way women are defined in law and by society. For instance, Aboriginal women have been largely erased from Australian life.

Larissa Behrendt, professor of indigenous research at the University of Technology Sydney, has noted that, “white women who lived on the land that had been cleared of Aboriginal people were mythologised as the brave women who fought against the harsh climate. The role of Aboriginal people, especially women, as the backbone of the pastoral industry due to their exploitation as slave labour, is unrecognised.”

The difference in the way white women and Aboriginal women are viewed and are permitted to move through society in Australia is racist.

The difference in the way white women and Aboriginal women are viewed and are permitted to move through society in Australia is racist. Behrendt added, “white women do not have to confront the dilemma they find themselves in as being both oppressor and oppressed. They do not have to acknowledge their complicity in the oppression of Black women and admit to the role they have played in the subordination of Aboriginal women in post-invasion society.” Thus, the socially constructed narrative of what an Australian women is (sometimes using the sexist slang term “sheila”) is established. 

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UTS academic Larissa Behrendt.

The way trans women and trans men in Australia are viewed is often transphobic. The NSW Gender Centre notes that “while it is against the law in NSW to discriminate against somebody because they are, or it is assumed that they are transgender, a high level of discrimination, vilification, harassment and physical violence toward transgender and gender questioning people still exists within our society. This treatment often stems from the high levels of ignorance, prejudice and bigotry levelled towards transgender and gender questioning individuals”.

A key indicator of social and state-based transphobia can be seen in the way NSW spends its money. For instance, the City of Sydney provides public funds to the Feminist Legal Clinic, which states that it works toward the “elimination of all forms of discrimination against women and girls that result from the replacement of the category of sex with that of ‘gender identity’.” This is the kind of language that can erase transgender lives and pervert the feminist philosophy.

In closing, the takeaway from the US Supreme Court is that trans women are women and trans men are men. I might just add to that by saying that trans black lives matter. There are trans black deaths in the US and Australia. The goal is more than legal protections, but social and community understanding.  

Christopher Pepin-Neff would like to note that he is not lawyer and considers the above article as policy analysis.

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