In another case of “don’t believe everything you read,” scores of websites are claiming that Tasmania wants to make it illegal to use the pronouns “he” and “she.”
The problem with that reporting: It isn’t true.
“Using the pronouns ‘he’ and ‘she’ could land Australians before the courts,” claims the Daily Mail, a conservative news site criticized in the past for an allegedly anti-LGBTQ bent in its reportage.
Other publications piled on to that allegation. LadBible, a U.K.-based clickbait site, claims the legislation “could make it illegal for people not to refer to people by their preferred pronoun.” The Australian, another right-leaning outlet, made the same claim—as did The Evening Standard and Yahoo! Style U.K., for some reason.
The headlines misrepresent a single quote by Dr. Greg Walsh, a lecturer specializing in preferential treatment for religious beliefs at the University of Notre Dame Australia. The Australian quotes Dr. Walsh as saying the decision “could make it illegal for a person to not accept a transgender person’s gender identity, such as by declining to use their preferred personal pronoun.” He calls the measure an “attempt to use state power to force individuals to use language that contradicts their deeply held beliefs.”
Walsh previously advocated in favor of “turn away the gays”-style laws that would allow individuals to treat married same-sex couples as legal strangers.
While coverage of Tasmania’s proposed bill quotes Walsh at length, little of the news quotes any transgender people—or, for that matter, the actual text of the bill under consideration. That could be because the bill, known as the “Justice and Related Legislation (Marriage Amendments) Bill of 2018,” is challenging to read. Its purpose is to update technicalities in the territory’s marriage laws. Previously the government forced couples to get a divorce if one of them began the process of transitioning. That requirement was a holdover from the days when Australia banned same-sex couples from marrying and is due to be corrected.
As the bill proceeded through the Tasmanian legislature during 2018, lawmakers tweaked it with various amendments, many simply clarifying the legal definition of various terms like “gender expression.”
In part, the bill modernizes Tasmania’s Anti-Discrimination Act of 1998, which already prohibits discrimination. It forbids individuals from treating a person with certain attributes “less favourably than a person without that attribute” or “disadvantaging a member of a group of people.”
The law makes it clear all Tasmanian citizens already enjoy non-discrimination protections on the basis of gender identity, whether it’s trans people or cis folks.
So what would the marriage bill currently under consideration actually change? In this case, it would simply reduce confusion about how “gender expression” is legally defined in relation to “gender identity.” It doesn’t create a new ban on pronouns.
In other words, it’s a technical change that’s not exactly the legal apocalypse concocted by headline-writers. Dale Sheridan, a lawyer who is transgender, compared the claims about pronouns to other wild conspiracy theories with no basis in fact.
“These changes will only affect the small minority of people who simply want their identity documents to match their actual identity,” Sheridan claims in a November op-ed published in the Sydney Morning-Herald. “For the rest of the country, it’s business as usual.”
This wouldn’t be the first time that organizations hostile to queer people concocted fears out of nothing. Last week an anti-trans organization in Massachusetts admitted that scare-mongering about trans people in bathrooms was “largely contrived.”
“Our side concocted the ‘bathroom safety’ male predator argument as a way to avoid an uncomfortable battle over LGBT ideology,” a representative of Mass Resistance wrote.
A similar strategy now appears to be underway in Australia. Could a person wind up in court simply for saying “he” or “she?” No. That would, of course, be a ridiculous situation that no rational person could ever entertain as possible.
What Tasmania has—and has had for some time—is a ban on harassment, discrimination, and harming another person simply because they don’t conform to another’s idea of how people should express their gender. Under those conditions, could aggressively misgendering someone constitute a crime? It’s possible. For example, if a co-worker maliciously harassed a colleague by using the wrong pronoun in order to create a hostile workplace, that might be found to constitute discrimination. But the pronoun on its own wouldn’t be the problem; the problem would be the intent to harass.
The marriage bill also establishes a few other protections for transgender citizens unrelated to pronouns and discrimination, and it’s perhaps these provisions to which critics actually object. For example, parents would be allowed to decide whether or not to record a gender for their child on a birth certificate. The bill would also eliminate a draconian rule that requires trans people to submit to mandatory surgical procedures before the government recognizes their true gender.
“How could it be illegal to say ‘he’ or ‘she?’” The Daily Mail demands to know. The answer is simple: It isn’t.
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