previous page | index | next page Anti-Discrimination Legislation 39 My proposal in respect of law reform affecting anti-discrimination legislation in relation to the communities of people who experience transsexualism, Intersex and transgender and their loved ones and families involves a simplification of the current legislative regime. Simply put, such legislation should prohibit and appropriately punish discrimination and vilification against a person, or a partner or spouse or member of the family of a person, who may express gender contrary to their legal sex, who is undertaking sex affirmation treatment or who is a person who has had his or her legal sex reassigned for the sake, or in respect of, any such actions. Other Matters Requiring Urgent Reform 40 Another matter of reform requiring urgent attention is the complimentary essential right of people who experience variation in human sexual formation to have sex affirmation treatment funded by the State. The health and life of people who experience transsexualism and some other traditionally recognised intersex conditions is absolutely dependent upon such people being able to undergo sex affirmation treatment. A determination of such an individual's Common Law sex and right to marry in the individual's reassigned sex is fundamentally dependent upon the individual having undergone sex affirmation treatment. The fundamental human right to effect the correction or reassignment of an individual's sex is also fundamentally dependent upon the individual having undergone sex affirmation treatment. It is my submission that it must also be a fundamental human right for people who experience variation in human sexual formation, such as people who experience transsexualism and other traditionally recognised intersex conditions, to be able to rely upon public funding in respect of the medical costs associated with sex affirmation treatment. While the numbers of people involved are comparatively small, the medical costs of such treatment to the individual can be prohibitive. Such prohibition can and does lead to social and physical deprivation and death. There is no reasonable argument that I can conceive of to deny such healthcare and medical funding given the evidence and findings of Re Kevin. 41 The ready granting of recognition of the condition of transsexualism amongst prisoners and other persons resident in various State institutions and the creation of clear guidelines and rights enabling such people to be able to access medical treatment, including sex affirmation treatment, in respect of the condition of transsexualism must surely be another fundamental human right to be immediately recognised as a result of Re Kevin. The consequent fundamental human right in respect of such people is that they should be accommodated in such institutions in accordance with their own safety and their affirmed sex. The difficulty in such situations arises as a result of the forced confinement of such persons in the context of the population of the institution. In such circumstances it is my submission that upon an individual being diagnosed as experiencing the condition of transsexualism, and other similar intersex condition requiring similar recognition, and agreeing to undertake sex affirmation treatment, the individual should be accommodated in accordance with their own safety and their affirmed sex. I do not pretend that the formulation of the detailed policy in respect of this issue is easy or 'black and white'. For example, while it would be appropriate to house a female experiencing transsexualism (less appropriately or humanely called a male-to-female transsexual) in a female prison during the course of her sex affirmation treatment, would it be inappropriate to house a male experiencing transsexualism in a male prison during the course of his sex affirmation treatment? At the same time one must be reluctant to encourage isolating segregation of people in institutions because of their transsexualism. This area of reform, in particular, requires further careful consideration in order to balance human rights and personal safety considerations. What is undoubted is that people die and/or suffer unconscionable harm and wrong in such institutions as a result of their transsexualism notwithstanding the genuine efforts of many people to institute and manage the issue of transsexualism in prison and other institutions. It seems to me nevertheless to be a fundamental human right of people who are undergoing sex affirmation treatment and people who have undertaken sex affirmation treatment to be housed in the institution or prison consistent with their affirmed sex. Once so accommodated, the issue of the individual's safety can be dealt with. It seems to me that this approach is consistent with Re Kevin, the Common Law of Australia and proposed State and Territory legislation for the reassignment or correction of legal sex and anti-discrimination. previous page | index | next page			RACHAEL D. WALLBANK ACCREDITED SPECIALIST (FAMILY LAW) LSNSW The Legal Environment Following Re Kevin: New Perceptions And Strategies For Effective Law Reform In Respect Of The Legal Rights Of People Who Experience Variation In Human Sexual Formation And Expression  A DISCUSSION PAPER WALLBANKS LEGAL 1 MARION STREET STRATHFIELD, NSW, 2135 Tel: (02) 9764 2922 Fax: (02) 9764 2900 Email: wallbanks@bigpond.com Web: www.wallbanks.com Home ·  About M.A.N. ·  Activism ·  F.A.Q.'s ·  Legal ·  Documents ·  Publications ·  Education ·  Health ·  Supporters ·  Links ·  Sitemap ·  Contact
	Last modified: 4 March 2003

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