Why Are We So Scared of Men Being Pregnant?: The need to destroy the gender binary and norms entrenched in Australian society

Kirsty Dale

“Wanting to have a biological child is neither a male nor female desire, but a human desire” – as Thomas Beatie, a prominent transgender man, put it. We typically see pregnancy as an exclusively female act, but male identify and appearing individuals are also capable of this. Individuals born with female sex characteristics and reproductive capacity that identify as male and have made a physical transition to this thus subvert our expectation of gender in our binary societal views. Pregnant transgender males are not the norm in Australia or any Western country. It’s imperative that the law recognises the existence of these individuals and offers them the same rights and protections relating to pregnancy as cis-women.

The medical eld regards transgender people as suffering from a condition called ‘gender dysphoria’ where they have continual and strong feelings of discomfort associated with their gender identity not being consistent with their biological sex. Pregnant transgender males often struggle with an even stronger sense of gender dysphoria as they feel detached from their chosen male identity in doing something society considers an inherently female act – giving birth.

A recent study by A.D. Light took surveys of 41 transgender males who had experienced pregnancy and delivered a baby after they had commenced their transition from female to male. Falling pregnant required them to stop their hormone replacement therapy for the period leading up to the pregnancy and throughout, which often led to the reemergence of their gender dysphoria as their bodies became more feminine again. The men recorded various responses to pregnancy. Some nally felt happy and at peace knowing their bodies were doing something useful that other men’s bodies couldn’t do: “It was relieving to feel comfortable in the body I’d been born with.” But for most, the experience of pregnancy heightened the feeling of gender dysphoria as pregnancy is a “bizarrely feminized world” increasing the gap between some transgender men’s psychological identity and their biological sex: “Heavy time, having a baby, not passing as male, all the changes and a society telling me to just be happy.”

The study found that unfortunately the majority of the men reported negative experiences with the healthcare system. Hostile looks, suspicion and double takes were moderate and typical experiences reported by the respondents. In an extreme incidence one participant was reported to Child Protective Services for being a “tranny with a baby.” There were also instances of transgender men being turned away from doctors and healthcare professionals refusing to use correct pronouns. This negative, discriminatory and irresponsible response from the healthcare system needs reform including establishment of specialised ethics committees. If a patient presents with the capacity and desire to have children (a uterus, fertile eggs, donor sperm) then there is absolutely no reason to deny them this vital service.

The United Nations Universal Declaration of Human Rights article 16 provides everyone with the right to marry and found a family. Although equal marriage rights are strongly advocated for, transgender issues do not receive the same widespread support or attention. This right to marry and found a family should be no different for transgender people as article two dictates that the Declaration applies to all people without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The provision for health and wellbeing in the declaration makes special reference to motherhood as needing additional assistance and care. This reference to ‘motherhood’ is clearly outdated in the current social climate where our society sees fathers taking a greater role in parenting, and in particular instances of entering ‘motherhood’ themselves. The UN would do well to change this reference to ‘motherhood’ to the broader term ‘parenthood’ to ensure adequate and equal recognition of this.

Transgender men have been discriminated against for expressing the wish to have children or merely retaining the capacity to do so. In the case of Western Australia v AH [2010], the WA Court of Appeal denied two female-to male applicants the right to be issued gender reassignment certificates on the basis they had not undergone invasive surgery to remove internal female reproductive organs and create male genitalia. The applicants did not see these organs as disruptive to their gender identity, and did not think surgery was an appropriate response to their existence. Phalloplasty, the artificial creation of a penis is not performed in Australia due to an extremely high risk factor with low success rate.

The decision in WA v AH has since been overturned by the High Court of Australia replacing this with the requirement that they only be socially rep- resented as male. Unfortunately the preference for female-male transgender people to be permanently and irreversibly infertile still lingers in many countries around the world. This approach condones the surgical ‘mutilation’ of transgender bodies. So it might be shock that most of Australia’s state legislation is yet to re ect this precedent.

All states and territories excepting Western Aus- tralia and the ACT still require a ‘sex-affirmation’ procedure to correct the sex on one’s birth certif- icate. It is unclear in the legislation what exactly a ‘sex-affirmation’ procedure entails, but it is defined in South Australia as a procedure that alters the genitals and other sexual characteristics of a person.

Overwhelmingly, the denial of adequate healthcare to transgender men seeking or undergoing pregnancy leads to discrimination, significant health risks, and a significant impact on general wellbeing. This flies in contravention of international human rights, although there is some necessary progress needed in that area. Domestic legislative reform in line with improved representation and education of gender and sexual identity would help spearhead a change in how we view non-binary conforming and transgender individuals and their reproductive rights.

Chaos in the International Legal Order: The ICJ Strikes Again

Claire Rapson

For those of you who spent International Law asleep, on Facebook or too unnerved by Hitoshi’s relentless bounding around Coombs to pay attention to what he was actually saying, the International Court of Justice (ICJ) is the BNOC of the international legal scene. As the UN’s principal judicial organ, it has two main functions: resolving inter-State legal disputes submitted by its members, and providing advisory opinions on legal questions requested by UN organs and specialised agencies. Any self-respecting first year can tell you that a domestic judge can’t spontaneously override Parliament’s statutory law with their own opinions, no matter how justified. Although crystal clear at the domestic level, international issues tend to be more nebulous. International law is far more political than domestic law, and therefore the separation of powers is not as defined.

One of my lecturers recently attended a public lecture by the ex-ICJ President, Judge Gilbert Guil- laume. In response to a question from a student, he controversially suggested that the ICJ was not concerned with the application of international law, but with the maintenance of international peace. Clearly the material applicattion of international law does not necessarily lead to a peaceful outcome.

With all due respect to Judge Guillaume (love your work), I can’t agree with him on this point. International law is based on a system of facultative jurisdiction; it only functions because States consent to it. For those who need a quick refresher, the international legal equivalents of our statutory law are treaties and customary international law (which requires (a) widespread State practice and (b) opinio juris – States’ subjective belief that they are ‘legally bound’ to act according to that practice). If the ICJ starts to base its decisions on what it considers nec- essary “to maintain peace,” instead of according to custom, it will unleash a tumultuous rollercoaster of unpredictability onto the international legal scene. States will no longer know what they are consenting to when entering into agreements. Take a minute to think about the colossal implications this could have on the future of international relations: States are going to feel pretty reluctant about engaging in international negotiations if they don’t know how their treaties will be interpreted. Beyond this, if we don’t limit the work of international courts to the application of the law, then where do we set the boundaries? What’s to stop them from deciding according to any other cause they deem worthy?

Take the case of the investment arbitration tribunals which interpret the Bilateral Investment Treaties (BITs) concluded between States. In a series of recent judgments, a number of these tribunals decided to throw a spanner in the works and morph from Legal Interpreters of BITs into self-appointed Guardians of Foreign Investors . One could question whether it is really a tribunal’s task to defend a putative investor, who did not agree to the terms of the BIT, and was probably not even known by the States at its conclusion. Shouldn’t BITs be interpreted according to the intentions of the States who are party to it, as per the ordinary canons of interpretation reflected in custom or the 1969 Vienna Convention on the Law of Treaties? The problem with allowing international courts to make decisions based on arbitrary goals, instead of on the law agreed to by States, is that these goals are not defined: nothing can stop the ICJ from promoting the maintenance of peace today, and then the interests of investors tomorrow. There is no certainty in this kind of system, and there can be no consent by the main agents of the international legal order: the ICJ may be the BNOC of international law, but the States are Brian Schmidt. International law only works because they give their consent to its application, and they only do this because they trust that the ICJ will interpret it according to defined legal principles. When courts and tribunals stop doing this, States lose their con dence, and the international legal order stops working.

This all comes down to what we think the role of international courts should be: should it be to favour certain values (such as the right of investors to access arbitration, or the maintenance of world peace)? Or should it be to apply the law? In an era of international cooperation, confronted by unparalleled global issues such as climate change, it is of utmost importance that States feel that they are able to rely on our international legal system. The only way for this to happen is if we leave the peace-maintenance and investor protection to the States – the ICJ should do what it does best and apply the law.

97 Lonely Nurses Want Boyfriends

Elizabeth Harris

‘Your hair looks cool today’ – That guy in your Monday tutorial. Very acceptable. ‘I like your dress’ – Tinder guy. Far subtler than ‘DTF?’. ‘You slay me’ – The cashier at Ikea. 10/10. You never forget your rst ‘slay.’ ‘It’s that time to hunt’ – One of your fellow students. A completely unacceptable, different type of ‘slay’ reference, of which Beyoncé would not approve.

Nevertheless, this is the kind of predatory comment to which students at the University of Melbourne (and a plethora of other Australian universities) were subject on the now infamous (and thankfully no longer existent) Hotties of Melbourne University Facebook page.

This article does not aim to be trite. Cogent analysis scrutinising the social norms which allow such a page to exist has been made. By the time this article is published, Pledge Week will be a month in the past. The furore of public anger about the page will have died down. But the ideas behind Hotties of Melbourne University will not have – that, at least, is reasonably foreseeable.

Beyond education, shutting down pages, and writing about these issues, what can we do to improve this situation? What legal solution may we have? What reform can we make? Embarrassingly, the answer is that we can look to two past societies that have already done things better: One where a father could kill his daughter as a punishment, and another where white masculinity was the ruling power. That is, Ancient Rome and Apartheid Era South Africa.

Ancient Rome gave us many things: The Roads of the First Century, toga parties and (bear with me, I’m an art history student) arches. But they also gave us another gift we have yet to accept: Dignitas. Broadly, dignitas referred to status, worthiness, and the general esteem borne towards a person by grace of their position, and, at a stretch, humanity. In civil law, dignity was protected by the actio ininuriarum. This tort provided a cause of action for those who believed that they had been misrepresented, or whose dignity had been impaired or injured by another. While I doubt that this law was ever employed to shut down a Hotties of Pompeii graffiti wall, the central idea holds. Separately from a tort of defamation, there should be, in a society that cherishes the inherent humanity of each person, hot or not, a cause of action to combat injuries to dignity and restore an individual after embarrassment.

Receiving Roman-Dutch law from the Netherlands, the action ininuriarum lives on in South African civil law. In a notorious case, Kidson v South African Associated Newspapers Ltd, impairment of dignity was held to fall under the law of delict (the Roman law equivalent of torts) in South African law. We distinguish this civil offence of ‘false light’ from defamation in that it bears more on the wellbeing of the person, rath- er than their reputation.

In Kidson, the photographs of three young nurses were shown on the front page of a newspaper under the headline ’97 Lonely Nurses Want Boyfriends.’ One of the nurses, engaged at the time, argued that this was a misrepresentation – she was engaged and therefore, she said, was neither lonely nor in want of a boyfriend. Bear in mind Kidson was decided in 1957, and it perhaps did not occur to the court that there may be other justi cations for insult to dignity than that you were engaged, rather than that you were happily single/too busy nursing/didn’t appreciate the unrequested old-timey Tinder profile.

Nevertheless, Kidson provided recourse for those whose dignity was insulted by the use of their identity or characteristics without permission, causing insult to the privacy of their personality.

This is something that Australian civil law fails utterly to protect. Now, this right is protected in the South African Bill of Rights entrenched in Part II of the Constitution. We rail against a bill of rights. In Cape Town, Hotties of Cape Town University Facebook Page accompanied by inappropriate comments encouraging sexual assault would give rise to innumerable suits. In Canberra, a similar page would give rise to a request to remove the page, but not tortious remedy would be available to victims, whose human essence, their dignity, has been injured.

The broader social forces that produce young men and women who create pages like Hotties of Melbourne University need to be addressed, but the reality is that this will take generations, and society will never be eradicated of pests such as these. The responsible thing to do is at least to supply a Band-Aid to ease the pain of harm done to human dignity, and to show our disdain for these attitudes. If a society that fed people to lions for fun, and another that oppressed approximately 91% of its population can do it, so can we.

Offshore No More

Kanika Kirpalani

It is a strange twist of fate when one’s study of Corporate Law suddenly becomes applicable and vital to understanding the latest Australian Budget.

Or perhaps it is a re ection of the now infamous ‘Panama Papers’ and the impact this has had on the shaping of the 2016 Budget. The Panama Papers became a worldwide phe- nomenon when papers were leaked from the legal rm Mossack Fonseca in the titular country. The papers implicated some of the world’s wealthiest in tax avoidance schemes, whereby ‘shell companies’ were set up to harbour funds by shifting large amounts of money to tax havens, like Panama and Monaco. In what seems to be a fantastic irony in today’s world, the most elite are so practiced at systematically undermining taxation schemes, thereby reducing their overall impact. For when less taxpayer money exists, the funding of infrastructure, schools and hospitals, and so forth, becomes less feasible.

In response to this, Treasurer Scott Morrison announced in the 2016 Australian Budget a new regulatory scheme to tackle tax avoidance. In a move in uenced by the UK’s ‘Google Tax’, Australian companies caught transferring pro ts off shore will face a penalty rate of 40% as opposed to the ordinary 30%. This will target multinational corporations and wealthy individuals with a team of 1000 tax avoidance specialistsat the Australian Taxation Office. Although this move seems completely necessary given the current climate of taxation scrutiny following Panama, the tax is also a fundamentally passive political move. Rather than delving into serious policy reform, it seems the Budget is reflecting nothing more than a likeable policy move to win the Australian public.

With the Federal Election coming up this winter, it is clear this government has an ulterior motive in presenting such reforms. The Budget introduced agreeable reforms to keep the every-day vote appeased. In targeting large multinational corporations and elite individuals, the Budget sought conservative ways to justify tax cuts. It is questionable how the Australian public will receive these proposals, with many of them toeing the line between conservative and passive too significantly to shift public opinion in any way. If the government is genuine about taking a stand against tax avoidance by the elite, they need more serious policy reform than the creation of a taskforce. Otherwise, this will remain to appear as merely an appeal to working class Australians.

LSS Events: The Revolution that Never Was: Law Ball 2016

Harry MacLaurin

It’s the most lavish, resplendent social event on the College of Law calendar. Law Ball.The annual opportunity for students to adorn themselves in their finest attire, to dine over the most exquisite mass-produced two-course cuisine, and be regaled with tales of classmates over one of the most generous beverage packages of all the Society balls. Tickets are feverishly sought after and are sold-out as fast as your average tutorial sign-up. Despite their prices – which tting with the splendour of the event, are also extravagant – Law Balls consistently attract unparalleled interest. And with glamorous venues, luxurious table ornaments, live music and endlessly owing champagne, Law Ball is always a night to remember. For many decades, Law Ball has been the jewel in the Law Student Society’s (LSS) crown. It has become an inherent responsibility of the LSS Events Vice President to host this glittering yearly event, and justly it has become the most expensive item on the LSS budget. While the cost and format of the ball has been unquestioningly acceded to by committees-gone-by, this year there was a spanner thrown into the works.

As the LSS does not publish its minutes from its committee meetings (full disclosure: a practice for which I am partly to blame), the uninvolved law student has little idea about the mysterious goings-on inside their representative Society. With Facebook posts, emails and, of course, Peppercorn magazine the main modes of communication, the student cohort were largely unaware of the challenge that had befallen their cherished Ball.

Having flagged this debate at an earlier committee meeting, Social Director Kirsty Dale stood against the tide of accepted wisdom and raised underlying concerns that the Ball is expensive, exclusive and inaccessible. For a university as progressive as the ANU, she said, why do we persist with this antiquated event in its present form? Her concerns were legitimate. Many people had expressed pessimism in the past at the prospect of forking out over $120 for a ticket. Moreover, with last years’ table book- ing asco, many could not even sit with their friends. Kirsty believes the expense and limited number of tickets available restrict many students from attending, given not everyone gets support from their parents while studying, with many students working a number of jobs to support themselves.

Kirsty was instead proposing to turn Law Ball into a stand-up cocktail event, which in the scheme of things, was a fundamental alteration of the traditional event. Her rationale was simple: having no tables nor sit-down dinners would reduce ticket costs and allow up to 800 people to attend, as opposed to 680. She identi ed that there would be less ticketing issues, people could attend in smaller groups and the food might be better as canapes would be served which are easier to prepare in bulk. The criticisms were predictable: it would be a less formal event, people would look forward to sitting on tables with their friends, few other balls do a sit down meal, people would get sore feet, Law Ball’s reputation would go downhill, and the ball is a tradition.

The counter arguments were just as predictable: it would be no less formal because you can still dress up, there is greater opportunity to mingle standing up, the LSS Social Justice event is already a sit down meal, there would still be seats for people to sit if they got sore, people would still buy tickets, and ‘traditions are made to be subverted’. The mood was tense. No one wanted to say they were in support of something labelled exclusive and inaccessible for fear of being politically incorrect. However no one wanted to throw away the traditions of Law Ball either.

Ultimately the final decision came down to practical considerations. There were safety concerns with 800 people swarming over a canape dish. How many venues can host 800? Would there still be busses? And most importantly, how different would the cost be? As it turns out, the costings indicated that a stand up event with 800 people would only cost about $11 difference compared to the sit down event. Despite Dan McNamara’s claim that $11 means a lot for a person supporting themselves, he was fooling no one considering a Quarter Pounder meal with bacon costs more.

The committee put the matter to a vote and Kirsty’s proposal was easily defeated. An audible sigh of relief was heard. The insurrection had been stopped and the Law Ball was safe once more. Such revolutionary ideas would be shelved for the foreseeable future, doomed to failure at future discussions. Yet the debate was now out in the open. The Law Ball tradition was no longer beyond reproach. And while this years’ Ball will be as dazzling and grandiose as always, the need for inclusivity and accessibility will perhaps sit at the back of committee members’ minds as they indulge in dessert. Let them eat cake!