Gender Legislation Does More Harm Than Good

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On Nov. 21, 2021, James Button, writing in the Sydney Morning Herald, described and evaluated a most interesting debate on gender, sex, and power. It concerned an occurrence at the University of Melbourne where colleagues of an associate professor of philosophy vilified her for opposing the consequences of the implementation of Victoria’s amendments to its births, deaths, and marriages registration law.

The Victorian Parliament passed legislation in late August 2019 allowing transgender people to change the sex on their birth certificate without first having to submit to sex reassignment surgery.

Section 30A of the Births, Deaths and Marriages Registration Act 1996, as amended, now allows a person to change their sex, provided they are 18 years or older and have not made an application “within the 12 months preceding the date of making the application.”

Specifically, the legislation allows a person to change the sex on their birth certificate if the person believes that the chosen sex descriptor on their application form is correct.

The sex on the birth certificate as amended thus simply reflects the applicant’s personal choice as to their gender. The legislation grants people the freedom to select the sex descriptor of their choice—male, female, or any other sex.

Although the legislation requires that the application be made in good faith, it is nevertheless potentially odious and dangerous because predatory men could use it to gain access to women-only facilities, such as bathrooms and toilets.

However, under the legislation, gender identity rather than sex defines whether a person is male or female or transgender.

This legislation was criticised by Associate Professor Holly Lawford-Smith, who teaches philosophy at the University of Melbourne. She even established a website on this issue, inviting stories from women who felt threatened by men who visited female facilities. Lawford-Smith is of the view that the legislation effectively endangers the existing rights of women.

However, the publication of the website precipitated a furious attack by those who were protective of transgender rights.

Epoch Times Photo
LGBT activists from the National Center for Transgender Equality rally in front of the White House in Washington on Oct. 22, 2018. (Chip Somodevilla/Getty Images)

A lecturer in gender studies denounced Lawford-Smith for vilifying transgender people and potentially labelling them as predatory, promoting hate speech, and distributing misinformation. The lecturer sent a letter to the university authorities, demanding that they take firm action immediately.

Students and staff members signed the letter of complaint. However, a law professor, Joo-Cheong Tham, while applauding the National Tertiary Education Union’s (NTEU) solidarity with transgender people, disagreed with the action taken by the lecturer and argued that the scholarly community should discuss the relevant issues in this controversy and support them with scholarly arguments.

This dispute is unusual because Lawford-Smith’s detractors are on the left of the political debate, like her. Nevertheless, it turned into a vicious battle among otherwise like-minded people. The controversy thus discloses a fault line in the left’s narrative.

Specifically, the narrative raises the question of whether the university community should accord precedence to the protection of women (against real or perceived predatory males who are, or pretend to be transgender) or to the rights of transgender people to have their identity recognised by allowing them to change their birth certificate accordingly and access the facilities available to the sex of their choice.

Indeed, the legislation does refute the idea that people are born either as male or female, which in his context, Jane Clare Jones, a British philosopher, believes is “delusional” to deny this reality.

It also raises issues for which universities are justifiably blamed: the suppression of free speech by the adoption of restrictive speech codes, promotion of diversity and inclusion to the exclusion of most other values, the intolerance of tolerance, and the shameless promotion of left-wing causes.

Further, it is controversial because it cultivates a belief that the Victorian legislation, in allowing a person’s request to change their birth certificates, indirectly facilitates, or even condones, predatory behaviour.

It is also troubling because it again raises the issue of free speech on campus and the unwillingness of many staff members and students to discuss controversial issues in an objective and impartial manner.

The debate involves demands that the university leadership and community accept the views of one group to the exclusion of others.

For example, Annette Herrara of the NTEU, referring to Lawford-Smith, even indicated that she is “shocked that a person like that can be employed at an Australian university.”

The lecturer’s request was unsuccessful. However, although Lawford-Smith continued to teach her feminist courses in philosophy, her reputation may well be severely thrashed.

Epoch Times Photo
Professor Holly Lawford-Smith has gone under fire for creating a website to collect personal accounts to highlight the impact of Victoria’s gender identity law on women-only spaces, on June 18, 2021. (Supplied/Holly Lawford-Smith)

Disturbingly, this sordid saga reveals the shocking quality of debate on campus (or more likely, the absence of it) and exposes the opinionated mindset of those staff who lack the tolerance to allow for scholarly discussion to take place on campus.

The attempts by universities to create a safe place for all students and staff is unrealistic because it inevitably involves the suppression of free speech to eliminate the discussion of divisive and sensitive issues.

It is even doubtful that the recently adopted speech codes will make any difference, considering there are exceptions, which would allow for these restrictions to be maintained, or introduced in a case like this.

It is interesting to note that the Melbourne university situation is a direct result of the manipulation of social engineering legislation by a left-of-centre government to pacify a small group of people in society.

Legislation of this nature inevitably generates real, or potential, problems and incites people into doing actions they would otherwise not have contemplated.

Hence, it could be contended that less legislation is better for the maintenance of a harmonious society.

According to a saying attributed to Henry David Thoreau, the author of On the Duty of Civil Disobedience, published in 1849, “The best government is that which governs least.”

Of course, there are societies where indigenous cultures have accepted the idea of non-binary genders for hundreds of years, from Mexico to Samoa and Madagascar. For example, in Mexico, the members of the non-binary gender class are known as “muxes.”

Thus, it is not asking too much to insist that academics discuss these issues without fear or favour in Australian universities.

A society that stifles debate on these issues is a weak society. People deserve to live in a society where discussion of sensitive and controversial issues is not lethal, and people do not lose their jobs when they express a view that is incompatible with the views of society’s policymakers and trendsetters.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Gabriël Moens


Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland, and served as pro vice-chancellor and dean at Murdoch University. In 2003, Moens was awarded the Australian Centenary Medal by the prime minister for services to education. He has taught extensively across Australia, Asia, Europe, and the United States. Moens has recently published novels as well including, “A Twisted Choice,” and short story, “The Greedy Prospector” in “The Outback” anthology (Boolarong Press, 2021).

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