December 2nd 2017

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Articles from this issue:

EDITORIAL Turnbull redefines terms of marriage vote

CANBERRA OBSERVED Turnbull is running on empty as margin shrinks

GENDER POLITICS Northern Territory proposes recognising fluid genders

ENVIRONMENT Sea levels are not on the rise: research

NATIONAL AFFAIRS Our clinging to the fringe is stultifying development

FREEDOM Where to now after the marriage redefinition vote?

EDUCATION Unions and the ALP have gutted the curriculum

ECONOMICS The West faces tests of its own resilience

CULTURE The mysterious birth of technology

DRUGS AND SOCIETY Addiction and the cultural repression of spiritual values

OPINION Don't stand by as the fight for freedom begins

LITERATURE Britain's Kazuo Ishiguro a worthy Nobel laureate

HUMOUR Whispers from court side

MUSIC Funny tones: Playing it for a laugh

CINEMA Murder on the Orient Express: First-class mayhem

BOOK REVIEW Disentangling the free-market fraud

BOOK REVIEW Not inscrutible, just ambitious


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Northern Territory proposes recognising fluid genders

by Patrick J. Byrne

News Weekly, December 2, 2017

A Northern Territory discussion paper proposes redefining the human person by their fluid gender identity and sexual orientation, while removing the biological definitions of man and woman from the Territory Anti-Discrimination Act.

Binary is out of fashion.

The discussion paper for “Modernising the Anti-Discrimination Act” (ADA), issued by the Territory Attorney-General’s Department, says that the proposals are based on changes made in 2013 to the federal Sex Discrimination Act 1984 (SDA).

The discussion paper says: “Gender is not limited to biological sex assignment; it takes into account appearance, mannerisms and the social identity a person chooses for themselves, including to be something other than male or female. Gender refers to the way a person presents and is recognised within the community.

“A person’s gender might include outward social markers, including their name, outward appearance, mannerisms and dress. It also recognises that a person’s assigned biological sex and gender may not necessarily be the same. Some people may identify as a different gender to their assigned biological birth sex and some people may identify as neither male nor female.

The discussion paper endorsed the changes to the federal SDA, which defined gender identity as “the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”

What does it mean to say gender identity is based on mannerisms or on gender-related characteristics like dress, makeup, or to change physical appearance, regardless of a person’s sex at birth? Mannerisms can reflect feelings that are deep and profound, vague and subject to moods and emotions, permanent, occasional or fleeting, past or present, different in the future. Changing one’s appearance can involve a total change of appearance to identify as the opposite sex, or partial change, or minimal change, and can be permanent, temporary or only for social occasions; it can be a fashion statement (“the new black”) or it can be an identity politics statement in opposition to the state identifying people as male or female only.

The SDA definition of gender identity and the discussion paper’s description of gender identity allows a biological man, with or without medical intervention, to identify more as a woman. It allows a biological woman, with or without medical intervention, to socially identity more as a man. It allows for legal recognition of the 58 gender identities listed on Facebook, or for persons being on a spectrum between 100 per cent male and 100 per cent female. It can mean a person identifying as genderless, that is, as having no sex identity or gender identity.

The SDA definition and discussion paper description of gender identity is open to infinite possibilities. Whereas sex describes something objective – an innate, immutable and deeply abiding aspect of the human person – gender identity describes something subjective, fluid, uncertain and ambiguous.

A human right can only be based on what can be objectively defined, like a person’s race, age, disability or sex. But gender identity is wholly a social construct, a fluid and ambiguous term that cannot be consistently or objectively be defined. Writing fluid gender identity into law creates uncertainty in law, with penalties for those who fail to comply with what they cannot understand with certainty.

Attempting legally to recognise every idiosyncratic form of gender identity risks descending into legal and cultural incoherence.

To underscore the change from recognising a person by their biological sex to recognising a person by their fluid gender identity, the discussion paper argues that the biological definitions of man as “a member of the male sex” and woman as “a member of the female sex” should be repealed from the ADA.

This prompts a question. If the law is changed to allow a person to identity socially as a member of the opposite sex, or with a fluid gender identity, can the law also be changed to allow a person to change their race or age, or to claim a disability they don’t have?

The discussion paper proposes a new vilification clause that would make it “unlawful for a person to do an act, other than in private (for example at home), if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people” on the basis of their gender identity, sexual orientation and other protected attributes.

This vilification clause is similar to controversial vilification clauses in the Racial Discrimination Act 1975, under which journalist Andrew Bolt was prosecuted, and the Tasmanian Anti-Discrimination Act 1998, under which there was an attempt to prosecute Catholic Archbishop of Hobart Julian Porteous.

This definition of vilification would make it an offence for a person simply to disagree with another person. This legally institutionalises intolerance and would seriously limit freedom of speech, which is the foundation of democracy.

This threat to basic freedoms is made worse by having the ADA cover all schools, while removing most religious exemptions. Religious exemptions in the current ADA are described by the discussion paper as enshrining discrimination.

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April 4, 2018, 6:45 pm