The Right to "Gender Identity" : A Clash with the Rights of Women - submission to the Human Rights and Anti-Discrimination Bill - Professor Sheila Jeffreys

Submission to the public consultation on the Human

Rights and Anti-Discrimination Bill 21 December

2012.

From: Professor Sheila Jeffreys, School of Social and Political Sciences,

University of Melbourne. Author of a number of book chapters and refereed

journal articles on transgender politics and law.

The right to ‘gender identity’: a clash with the rights of women

This submission addresses the addition of a new ‘protected attribute’ in the

Human Rights Bill, that of ‘gender identity’. The protected attribute of ‘sex’,

under which women are protected from discrimination, is still in the list, but

adding the new category of ‘gender identity’, could potentially create a clash of

rights between male-bodied transgenders on the one hand, and those

disadvantaged on the grounds of sex, women. In other jurisdictions, such

legislation has seen the emergence of successful legal challenges in which

malebodied transgenders have sought access to spaces previously reserved for

women, including women’s services such as sheltered housing, women’s toilets

and women’s prisons.

 

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The demands of transgender activists to have ‘gender identity’ included in

human rights legislation were first articulated in detail in the US in the 1995

International Bill of Transgender Rights (Frye, 2000). It demanded the right to

express the ‘gender identity’ of choice in whatever way the exponent desired,

particularly in any spaces previously reserved for women. An important right in

the Bill is that of entering spaces set aside by or for women, ‘The Right of

Access to Gendered Space and Participation in Gendered Activity’ (Frye, 2000:

213).

Since then, equality and human rights legislation has been updated and created

in states across the western world that incorporates the ‘right’ to express ‘gender

identity’. Women’s and feminist groups are not invited to contribute to

consultation on such changes as if they would have nothing relevant to say,

despite the fact that men may, under such legislation, gain the right to be

recognised in law as ‘women’. Women are the ‘absent referent’, not officially

referred to, despite the fact that it is ‘women’ that the majority of those persons

who wish to express their ‘gender rights’ seek to emulate. There is no

suggestion in legislation advancing a right to gender identity that women will be

included in or advantaged by the developments. Rather, in an increasingly

vigorous feminist challenge, critics argue that such legislation creates two

singular difficulties for women’s interests (Brennan and Hungerford, 2011). It

removes the possibility of women only spaces, and it promotes gender

stereotypes that have long been recognised by feminist theorists as the basic

organising mechanism of male domination (MacKinnon, 1989; Jeffreys, 2005).

The definition of gender identity in the Australian 2012 Draft legislation clashes

with protections on the basis of sex, through a confusion of the two categories.

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Gender identity will cover people, ‘born as one sex who identify as another

sex’, in other words it is a mental condition. There is no requirement that to

acquire protection on the grounds of gender identity, a person should have

embarked upon hormonal or surgical treatment to change ‘gender’. Indeed it

does seem likely to cover both those men who cross-dress occasionally, or on

the weekend, as well as those who do so on a more permanent basis. Women’s

need for sex-segregated spaces that offer protection for women’s dignity and

privacy, and which take account of the vulnerabilities that women suffer in a

society in which too many men are violent towards women and girls, has

generally been recognised in exceptions to anti-discrimination legislation. The

right to gender identity, however, has the potential to void this protection. 

The retrogressive nature of the idea of ‘gender identity’

Feminist critics argue that the concept of ‘gender identity’ is founded upon

stereotypes of gender, and, in international law, gender stereotypes are

recognised as being in contradiction to the interests of women. The idea of

‘gender identity’ is retrogressive. It depends upon the notion that there can be an

‘essence’ of gender in a person of one sex, that more clearly approximates to the

‘gender’ that is expected of the other sex. Feminists and researchers for many

years now have challenged the idea that there is an essential behaviour of

‘femininity’ for example, that is appropriate for women. The importance

attributed to the elimination of these stereotypes is exemplified in the wording

of the United Nations Convention on the Elimination of All forms of

Discrimination against Women (CEDAW), which feminists advocated for

throughout the 1970s until its promulgation in 1979. Article 5 of CEDAW calls

upon States Parties, to ‘take all appropriate measures’ to ‘To modify the social

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and cultural patterns of conduct of men and women, with a view to achieving

the elimination of prejudice and customary and all other practices which are

based on the idea of the inferiority or the superiority of either of the sexes or on

stereotyped roles for men and women’ (United Nations, 1979: Article 5).

‘Stereotyped roles’ are, according to feminist critics of the practice, the very

foundation and sine qua non of transgenderism, and the notion of ‘gender

identity’. Whilst women and feminists seek to unwrap the boa constrictor of

gender roles from around the necks of women and girls, the notion of ‘gender

identity’ supports and maintains them.

Women’s spaces

In this submission I shall concentrate on two contexts in which the admission of

men wishing to express their gender rights directly conflicts with the rights of

women: women’s toilets and women’s prisons.

Women’s toilets

Under the right to gender identity, male-bodied persons, in many cases with

penises intact, are likely to be permitted to enter women’s toilets. A situation

that has arisen in the US in October 2012, in relation to male-bodied

transgenders entering women’s toilets, may be instructive as to what may

transpire in Australia. In this case, a 45 year old person born male, thrice

married, the father of five children, possessed of intact male genitalia, and who

lived as a man until 2009, Colleen Francis, has established the right to use the

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sauna in the women’s locker room at Evergreen State College (Golgowski,

2012). The locker room is used by the girls from two neighbouring high schools

and some parents complained that this male bodied person was naked in the

locker room in the presence of their girl children. The college said that it had

legally to protect Colleen’s right to be naked in the women’s locker room,

directed the girls to a smaller, less adequate facility and then put up a curtain in

the main locker room saying the girls could change behind it. In this case,

Colleen’s right to ‘identify’ trumped the rights of those born and raised female.

Men who do not cross-dress commit serious offences against women when they

are able to enter women’s toilets, and these include taking photographs of

women urinating and defecating for circulation on upskirts sites on the Internet,

rape and assault. Unfortunately, men who dress in clothing more usually

associated with women are not immune from the commission of similar

offences. There are a quite surprising number of cases in which men wearing

women’s clothing have been arrested for engaging in behaviour in women’s

toilets that harms women. The range of acts they engage in includes secret

photographing of women using the toilets and showers, peeping at women from

adjacent stalls or under stall dividers, demanding that women recognise them as

women and becoming aggressive if women do not, luring children into

women’s toilets in order to assault them, and sexual assault.

In a British case, a man dressed up as a ‘mannequin with a mask and a wig’ to

enter a cubicle in the women’s toilets in a shopping mall, where he ‘performed’

an unspecified ‘sexual act’ (Ninemsn staff, 2011). The 22 year old man told

police he ‘found the sound of women on the toilet sexually exciting’. The man

had filmed women’s feet from beneath cubicle doors on his mobile phone, and

recorded the sound of a flushing toilet. In another case, a man dressed as a

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woman was observed peeping at women and using a cell phone to photograph

them in a UC Berkeley women’s locker room (Rufus, 2010). In a Little Rock,

Arkansas, case, a 39-year-old man wearing women’s clothing was arrested after

exposing himself and masturbating in front of three children and trying to lure

them into the women’s bathroom (CW Arkansas, 2010).

Male sex offenders can use women’s clothing to make their access to children

easier. In Oregon, a registered sex offender dressed as a woman entered the

women’s locker room at a swimming baths and talked with several children

before being apprehended (KATU, 2011). In this incident, the 39 year old man,

‘put on a bra, lipstick and eyeliner’ and entered the ‘Aquatic park’ where he,

‘wandered around the center talking with children, went in the women’s locker

room and took a dip in the hot tub’. This man had a history of entering women’s

locker rooms in women’s clothing, as well as a conviction for sexual abuse. He

was listed as a “predatory” sex offender who targeted girls aged between five

and nine years old.

It is not possible to know whether these are male-bodied persons who consider

that they are expressing a ‘gender identity’, or just men adopting women’s

clothing in order to facilitate their access to women and children, but the

problem of allowing persons with male bodies to enter women’s toilets persists

in either case. The cases covered here are likely to represent a fraction of the

situations in which male-bodied persons, dressed in clothing stereotypically

associated with women, enter women’s toilets for various forms of sexual

satisfaction. Usually women are unaware that they are being recorded or

observed.

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Women’s prisons

Women’s prisons are another space that male-bodied persons are seeking the

legal right to enter in order to express their ‘gender identity’. Male prisoners in

western countries are using human rights laws successfully to gain access to

transgender treatment at public expense in prison, and the right to then transfer

to the women’s estate. The men who are being given the right to live alongside

women in prison are often precisely those who are most violent and dangerous

to women’s safety, having been convicted of grave crimes, including the murder

of women.

In Australia, thus far, there has been no successful case in which a male-bodied

offender has been placed in a women’s prison in order to express a ‘gender

identity’. But there have been cases in which such demands have been made. A

case where permission to transgender was refused, concerned Australian serial

killer, Paul Denyer. Denyer killed three young women in bayside suburbs of

Melbourne, over 7 weeks in 1993. He sought, during his sentence, to ‘wear

make-up in jail, have a taxpayer-funded sex change and formally alter his name

by deed poll to Paula’ (Dunn, 2012). In July 2012 it was reported that police

were investigating four alleged rapes by Denyer of men with intellectual

disabilities who were fellow inmates. The Denyer case illustrates the problems

that might occur in the recognition of violent male criminals as ‘women’ and

their transfer to women’s facilities. There is no reason that a belief that they are

‘women’ will alter such men’s tendencies to engage in a form of sexual

violence which is specifically and clearly male.

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In another Australian case, in 2012, Derek Lulu Sinden was refused permission

in the Queensland courts to start hormone treatment for gender identity disorder.

The Queensland Corrections Department argued that the refusal was consistent

with its policy of only supplying hormones to men who started to take them

before entering the prison system (Smith, 2012). Sinden had been convicted of

an attack on Beryl Grace Brown, 71, in April 1999, in her home, which caused

her to suffer a heart attack and fatal stroke.

In other jurisdictions, male bodied persons have acquired the right to hormones

and surgery in order to express their ‘gender identity’ in prison. The question of

transfer to a women’s prison is intertwined with such decisions. In 2009, an

appeal from an unnamed male prisoner in the UK to be moved to a women’s

prison was successful. The petitioner in this case was found guilty in 2001 of

the manslaughter of his male lover who was strangled with a pair of tights,

allegedly for refusing to fund the murderer’s sex change surgery. He was

sentenced to five years imprisonment. Five days after his release he attempted

to rape a female stranger and was sent back to prison (Allen, 2009). In order to

obtain gender reassignment surgery, the prisoner was told that he must engage

in the real life test, that is, 2 years living as a woman, in a women’s prison. The

women in the prison where he was to be housed were not to be told of his

identity or of his offence. His lawyer told the court that the crimes were all

linked to ‘a desperation to become a woman’. The judge declared that ‘her

continued detention in a male prison is in breach of her rights under Article 8

[the right to private and family life] under the European Convention on Human

Rights’. Unfortunately, there seems to be no acknowledgement here of the more

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serious and pressing right of women to avoid being compulsorily housed with

violent men. The notion of human rights is trivialised thereby.

In response to the judgement, new guidelines were issued for the treatment of

prisoners seeking gender reassignment in UK prisons in March 2011, which

enabled prisoners to have treatment and to be located in women’s prisons. The

guidelines state, ‘A male to female transsexual person with a gender recognition

certificate may be refused location in the female estate only on security grounds

– in other words, only when it can be demonstrated that other women with an

equivalent security profile would also be held in the male estate’ (Ministry of

Justice, 2011). Gender recognition certificates in the UK can be obtained

without any need for hormonal or surgical treatment.

Conclusion

Persons of one biological sex who consider that they have a ‘gender identity’

stereotypically associated with the other sex do suffer discrimination and need

protection. A problem arises, however, when ‘gender’ and ‘sex’ are confused, to

the extent that male-bodied persons gain a right to enter spaces set aside for

women. In such a case, a clash of rights is created. Persons who wish to express

a gender identity not usually stereotypically associated with their biological sex

need to be accommodated in ways that protect them, but do not conflict with the

rights of women.

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Recommendations

* That there should be a recognition in the legislation that possession of a

mental ‘gender identity’ is quite different from ‘sex’.

* That the legislation should be constructed in a way that does not allow a malebodied

person to have a right of entry to spaces that need to be women only (i.e.

female only) for the purposes of security, privacy, dignity or in order to enable

members of that group that suffers discrimination on the grounds of sex, to meet

separately for political purposes.

References

Allen, Vanessa (2009, 5 September). Transsexual killer and attempted rapist wins ‘human

rights’ battle to be moved to women’s prison. London: The Daily

Mail. http://www.dailymail.co.uk/news/article-1211165/Transexual-prisoner-wins-High-

Court-battle-moved-womens-jail.html

Brennan, Cathy and Hungerford, Elizabeth (2011). “Gender identity” legislation and the

erosion of sex-based legal protections for females.

http://radicalhub.com/2011/08/01/gender-identity-legislation-and-the-erosion-of-sex-basedlegal-

protections-for-females/

CW Arkansas (2010, 10 March). Friends of man arrested for sexual indecency are

shocked. http://www.cwarkansas.com/mostpopular/story/Update-Friends-of-man-arrestedfor-

sexual/ehozQqRzrEmKVIfjZgGHLQ.cspx

Dunn, Mark (2012, 26 July). Serial killer Paul Denyer quizzed on four jail rapes in six weeks.

Melbourne: Herald Sun. http://www.heraldsun.com.au/news/true-crime-scene/killer-pauldenyer-

quizzed-on-jail-rapes/story-fnat7jnn-1226435264343

Frye, Phyllis (2000). The International Bill of Gender Rights v. Cider House Rules

International Bill of Gender Rights. William and Mary College Journal of Women and the

Law. Vol. 7 (6). 133.

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Golgowski, Nina (2012, 4 November). Parents’ outrage as transgendered woman is permitted

to use the women’s locker room ‘exposing himself to little girls’. UK: Daily Mail.

http://www.dailymail.co.uk/news/article-2227562/Colleen-Francis-Outrage-transgenderedwoman-

permitted-use-college-womens-locker-room-exposing-himself.html

Jeffreys, Sheila (2005). Beauty and Misogyny: harmful cultural practices in the west.

London: Routledge.

KATU Communities Staff (2011, 6 July). Detective: Man dressed as woman went into pool

locker room. Milwaukie Katu. http://milwaukie.katu.com/news/crime/detective-man-dressedwoman-

went-pool-locker-room/441693

Mackinnon, Catharine A. (1989). Toward a Feminist Theory of the State. Cambridge, MA,

USA: Harvard University Press.

Ninemsn Staff (2011, 18 April). Man dressed as mannequin found in mall toilet. Australia:

Nine News. http://news.ninemsn.com.au/world/8238380/man-dressed-as-mannequin-foundin-

mall-toilet

Rufus, Anneli (2010, 12 October). Cross-Dressing Peeper Infiltrates Cal Women’s Locker

Room. California, USA: East Bay Express.

http://www.eastbayexpress.com/92510/archives/2010/10/12/cross-dressing-peeper-infiltratescal-

womens-locker-room

Smith, Anthony (2012, 25 July). ‘Granny-killer’ refused hormones in prison. Gay News

Network. http://gaynewsnetwork.com.au/news/northern-territory/7973-granny-killer-refusedhormones-

in-prison.html

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[Complete list of submissions and DOWNLOAD PDF HERE- Number 408]