Don’t Erase Trans Kids

By Roslyn Cook | 17 Feb 21

At the start of 2021, we find ourselves in the middle of another harmful public debate about the rights of trans and gender diverse children simply to be themselves. The NSW One Nation Education Legislation Amendment (Parental Rights) Bill 2020, which is currently open for public comment, would deny children in our community the right to be seen, to be protected, and to be treated with integrity by schools and teachers.

Trans kids are beautiful. Trans kids deserve the same love and support as every other child, and the same opportunities to thrive and reach their full potential.

These statements are not controversial. Even so, at the start of 2021, we find ourselves embarking on another public debate about the rights of trans and gender diverse children simply to be themselves.

This debate comes courtesy of the NSW One Nation Education Legislation Amendment (Parental Rights) Bill 2020, which doesn’t extend any courtesy to trans and gender diverse kids.

This legislation targets teaching about ‘gender fluidity’, which it defines as ‘a belief there is a difference between biological sex … and human gender and that human gender is socially constructed rather than being equivalent to a person’s biological sex.’

As it is written, the Bill would prohibit teaching about gender diversity generally – but also much more than teaching, and not just in the classroom either. The Bill prohibits all ‘teaching, instruction, counselling and advice’ provided by:

  • Teachers
  • Non-teaching school executives (such as principals)
  • Non-teaching school counsellors
  • Non-teaching staff, contractors, advisors and consultants
  • Non-school-based staff, contractors, advisors and consultants, and
  • School volunteers.
  • In practice, nobody connected to any school in NSW, from principals to parents volunteering in the school canteen, will be able to even mention the fact that gender identity can be different to designated sex at birth.

Trans and gender diverse students would be erased – because to accept their existence is to acknowledge that gender diversity is a real thing. Under the Bill, any teacher falling foul of this rule would have their accreditation revoked.

A trans student who is struggling would not be able to seek assistance from school counsellors, who would be barred from providing any advice about gender identity issues, or to make referrals to other support services.

A non-binary student who is being bullied because of who they are will be left on their own, because teachers and other staff will not be able to even ask other students to address them by their name or pronouns, let alone enforce it.

Trans and gender diverse teachers will be adversely affected, too – after all, how can they affirm their own gender identity without contravening the Bill’s censorship of any identity different from what it calls ‘a person’s biological sex’?

If this wasn’t bad enough, the Bill also includes a clause, which resembles the infamous ‘section 28’ of the UK Local Government Act, which came into force in 1988. This section was introduced by Margaret Thatcher and remained in force until 2000. History now records its disastrous impacts – shutting down school-based support groups, blocking safe-sex education at the height of the HIV epidemic, and preventing a generation of UK students from learning about – or even talking about – their sexual orientations.

The Bill provides that ‘education is to consist of strictly non-ideological instruction in relation to matters of parental primacy [which includes matters of personal wellbeing and identity, including gender and sexuality]. The words non-ideological instruction are to be taken to include general teaching about matters of parental primacy as distinct from advocating or promoting dogmatic or polemical ideology’.

Strictly interpreted, this could see school counsellors banned from telling a suicidal gay student that who they are is okay – because whether same-sex attraction is acceptable or not is ‘a matter of parental primacy.’

Even intersex people are under attack from this legislation because it would introduce an offensive and stigmatising reference to variations of sex characteristics in law for the first time (the definition of ‘gender fluidity’ describes ‘people who are, by their chromosomes, male or female but are born with disorders of sexual differentiation’).

Intersex people are not disordered. But the warped ideology which underpins the Bill – a law that would erase trans kids, leave LGBTIQ students without support and further marginalise intersex children – most definitely is.

The Bill is also likely to be in breach of anti-discrimination laws. Section 54 of the NSW Anti-Discrimination Act 1977 provides an exception for acts performed in order to comply with state legislation. However, there is no equivalent exemption under the Commonwealth Sex Discrimination Act 1984, which protects sexual orientation, gender identity and intersex status.

It is clear to me that this Bill treats trans and gender diverse people ‘less favourably than, in circumstances that are the same or are not materially different, [they] would treat a person who has a different gender identity.’

The Bill would deny children in our community the right to be seen, to be protected, and to be treated with integrity by schools and teachers. It would cut off access to school counselling, leave young people vulnerable to bullying, and make it even harder for them to access support and information during their critical formative years.

Trans kids are beautiful. They deserve the same love and support as every other child.

At the Inner City Legal Centre, we are reminded of these truths every day through the work of our Specialist Trans and Gender Diverse Legal Service.

The debate about the One Nation Education Legislation Amendment (Parental Rights) Bill 2020 will reveal whether NSW Parliamentarians choose to stand up for trans kids, or instead close their eyes and pretend they don’t exist.

How to get involved

The NSW Legislative Council has referred the Bill to its Education Committee for inquiry. Unfortunately, this Committee is currently chaired by Mark Latham himself.

The Committee has decided to conduct an online questionnaire about the Bill, which is open until 28 February.

The questions have arguably been drafted in a leading way. It is nevertheless important to demonstrate community opposition to a Bill which seeks to erase trans and gender diverse kids in schools across NSW.

A coalition of organisations involved in fighting against this legislation, including Equality Australia and the NSW Gay & Lesbian Rights Lobby, are suggesting the following approach:

  • Answer question 1 (your name, postcode and email address will be kept confidential)
  • Answer question 2, saying you ‘oppose’ the Bill
  • Skip questions 3 to 7
  • In question 8, share your story about a teacher who made a difference to you or someone you love.
  • Please share this advice, and the survey link, to your communities and networks.

Finally, and perhaps most importantly, at this stage neither the NSW Government or Opposition have publicly announced their position on this legislation.

It is essential they do so as soon as possible, not only because it is the right thing to do, but also to minimise the negative impact of what may become the most harmful public debate since the Marriage Equality postal survey.

If you have relationships with NSW Government or Opposition MPs or have upcoming meetings with Ministers or Shadow Ministers, please ask them to publicly commit to voting against the Education Legislation Amendment (Parental Rights) Bill 2020 and express their support for the rights of trans kids to be themselves.