CRITICAL ANALYSIS of NSW Department of Education Bulletin 55 – Transgender Students in Schools

CRITICAL ANALYSIS of NSW Department of Education Bulletin 55 – Transgender Students in Schools

By Katherine Deves

This article is in response to deep concern caused by the proliferation of gender identity ideology that is being taught in our schools. Bernard Lane, the investigative journalist at The Australian, is the only mainstream journalist in Australia willing to cover this contentious issue1.

In NSW, Bulletin 55 (referred to as “the document”) is the official policy of the Department of Education in relation to trans-identified (“transgender”) students. It was conveniently published in December 2019 just before the holiday break, and it is in the keeping with the IGYLO strategies designed by global law firm Denton’s for the regulatory and institutional capture by gender identity ideology lobbyists. The timing was likely purposeful in order to avoid any media scrutiny or public debate in implementing such policy and legislation that favourable to the efforts of these ideologists, as it is favoured tactic to achieve that aim when it likely would be rejected or criticised by the vast majority of the general public had they been made aware.

The document contains a number of discriminatory and alarming policies:

• It deliberately conflates ‘sex’ with ‘gender’, and omits to refer to the single-sex exceptions contained in the Sex Discrimination Act 1984 (Cth);
• It continually prioritises one protected characteristic (‘gender identity’) over others, contrary to Commonwealth sex discrimination legislation;
• It fails to satisfy Australia’s international treaty obligations under CEDAW Art.10 in relation to education;
• It fails to meet basic safeguarding requirements by promoting mixed-sex changing rooms and residential accommodation;
• It treats concerned parents as a safeguarding risk;
• It disregards the rights of all pupils to safety, privacy and dignity in single sex spaces;
• It disregards the rights of teenage girls to compete in sports on a level playing field as per Sex Discrimination Act 1984 (Cth) s 42, Anti-Discrimination Act 1977 NSW s38 and CEDAW Art. 10(g).

1 https://www.theaustralian.com.au/author/Bernard+Lane

Reliance on Erroneous and Ideologically Informed Language

The policy begins by upholding the ideological stance that sex is “assigned” at birth. This is factually untrue, sex is observed and recorded at birth. Sex is determined at fertilisation with the absence or presence of the Y chromosome and SRY gene, with observation in utero possible from the beginning of the second trimester, and via genetic testing from 7 weeks via a blood test of the mother. The word “assigned” has been co-opted by gender ideologists from the now outdated practiced of “assigning” a sex to an infant born with ambiguous genitalia due to a Disorder or Variation of Sex Development. The current protocol for such a situation is that scans and a blood test are conducted in order to ascertain the sex of the infant, as Disorders of Sex Development conditions (colloquially known as “intersex”) are conditions that arise from either one sex or the other.

In relation to birth certificate, the document erroneously refers to “gender”, because it is “sex” (not “gender”) that is recorded on the document, and this opens up the broader implications of people being able to retrospectively alter a core identity document to reflect a factually untrue status.

The document repeatedly refers to “gender”, “gender identity” or “gender expression”, without including a definition within the document. “Gender identity” has been defined in federal legislation2, and is based on a definition promulgated in the Yogyakarta Principles3. The concept of “gender identity” is unable to be defined without resorting to circular reasoning and relies on offensive and restrictive gender stereotypes (i.e. a little boy likes “Frozen” and wants to grow his hair therefore IS a girl, instead of just being a child who may be gender non-conforming, or is simply exploring his personality as a normal part of child development), which is contrary to the Sex Discrimination Act (Schedule) and CEDAW Art.5(a) where sex based stereotypes are specifically rejected in order to eliminate prejudice.

Toilets and Change Rooms

“The need for the student to be safe is a paramount concern in these circumstances. Students should not be required to use the toilets and change rooms


2 Sex Discrimination Act 1984 (Cth) s 4
3 “[T]he Yogyakarta Principles have no legal force either internationally or within Australia. They were developed by a group of human rights experts, rather than being an agreement between States” Responses to questions on notice provided by the Attorney-General’s Department on 21 May 2013 in The Senate Legal and Constitutional Affairs Legislation Committee pg. 26 used by persons of the sex they were assigned at birth if they identify as a different gender.”

This statement privileges the needs of the trans-identified student over the rest of the student body. This is particularly problematic in the situation of a male student identifying as female and then using the girl’s facilities. Girls are entitled to privacy, dignity and safety, particularly during puberty with the additional burden of managing menstruation (or pregnancy), without having to deal with a male-bodied person in this space.

There is ample evidence of girls being adversely affected at school via rebranding of female toilets as “gender neutral” or allowing biological males access to this space; there are reports of girls electing to self-exclude, being subjected to period-shaming, and refraining from eating and drinking (with a commensurate rise in UTIs).

In QLD there was a huge international public outcry when a new school in Brisbane was promoted as having “gender neutral” toilets, which forced Premier Palasczuk to step in and revert the policy to single sex provision4.

Sanctions for Objecting to Overriding of Boundaries

“If other students indicate discomfort with sharing single-sex facilities (toilets, change rooms, dormitories or overnight accommodation for example) with a student who identifies as transgender, this should be addressed through the school learning and support team.”

Our society takes great pains and invests significant time, energy and resources to educate our children about safeguarding from a very young age (particularly for girls), and we encourage them to speak up if they feel uncomfortable, intimidated or frightened, particularly by the presence of a male in a space where they are vulnerable. Yet the document completely dismisses this basic safeguarding tenet by telling children that if they raise concerns or assert their boundaries, the child who is rightfully expressing their fear or discomfort with an opposite sex child being in a confined and private space with them, will be the student who will be removed, reprimanded and re-educated to acquiesce to gender ideology because the trans- identifying student’s needs have been given priority. It also promulgates a false narrative that the male student is actually “female” and has every right to be in that


4 https://www.news.com.au/lifestyle/parenting/school-life/genderneutral-toilets-at-brisbane-high- school-cause-outrage/news-story/aedcfd3787f58b943eff624c3b4b4aa8

space, essentially we are asking to children to ignore the reality of their own senses and to accommodate a falsehood despite their own distress or discomfort.
It is particularly egregious and concerning to presume that a male student should be allowed to share sleeping quarters with female students – this is a significant safeguarding issue, and completely disregards the rights of girls to safety, privacy and dignity in spaces where they may be in a state of undress or asleep.

School Sport

The section completely misrepresents the protection for sex-segregated sport under Sex Discrimination Act (Cth) s42 where sports can be segregated by sex after the age of 12 years if “strength, physique and stamina” are relevant. These factors are relevant to all sports, particularly as most children have begun puberty by age 12, which is when the biological advantage of males over females is in arguably apparent.

“Most students will be able to continue to participate in competitive sport in their identified gender after they have turned 12”.

The implication is that there is presumption that the needs of the trans-identified student will again take precedence, without any due consideration for safety and fairness of the girls, and the trans-identified student’s need take priority without any application of the legislative exemptions that allow for a player to be excluded solely on the basis of sex in NSW, and upon consideration of the factors of “strength, physique and stamina” under Commonwealth legislation., the legislation is silent on either elite and community sports.

“It may be lawful to exclude students aged 12 and over from competing in certain sports at the elite level in certain circumstances”.

The legislation does not differentiate between elite or community or social sports, in fact the legislation is entirely silent on distinguishing the differing levels of sport. The safety, privacy, dignity and fairness for girls in sports, fought for by women over many decades of activism, to ensure equal participation in sport has been completely disregarded. Investment, resource allocation and media coverage of women’s sports remains woefully inequitable and has only been further adversely impacted by COVID-19.

A high-profile case is currently being heard in the US in relation to Title IX violations where the state of CT has allowed males to compete against females5, and the Department of Education has stated that any institution allowing biological males to compete in the female category is violating Title IX6.

Teaching Gender Identity in the Cirriculum

The document states that “gender identity may be discussed in many curriculum areas”, this is deeply concerning due to highly contentious nature of the topic, and it is arguing that NSW school children should be taught factually untrue and ideological concepts such as human beings can “change sex”, or “boys can be girls, or have periods” and some “girls have penises”. A recent example of this is the “genderbread” managing to find its way into NSW classrooms, despite gender identity being explicitly excluded from the formal curriculum7.

There is a case currently pending in Canada where a 6 year old girl was deeply distressed at being told girls aren’t real.8

The document goes on to state that “Teachers should treat the topic in a manner that is respectful, inclusive and positive”, however based on the current method of silencing or shaming critics of the ideology, it is strongly doubted that the opinion of any student criticising the dogma would be welcomed, and would in fact require reprimanding for failure to unquestioningly accept the ideology should they dare to critique, or even question. It is also asserted that “inclusion” in this instance, excludes girls, as by accepting this ideology they are being compelled to subsume their needs to those biological male students.

Undermining of Family Integrity and Parental Authority

The most alarming part of the document is found in Support for the extended family of the student and Reporting Requirements; if the parents of the trans-identified child do not “affirm” the child and refuse to provide “consent” to the school to facilitate the transition (“to help with decision making, planning, assessment or service provision”), the school is informed that they can rely on the Children and Young Persons (Care and Protection) Act 1998 to circumvent the parent’s rights and authority and they are encouraged to report the parents to Community Services for this “harm”.

5 https://www.adflegal.org/selina-soule-track-athlete-story
6 https://www.nationalreview.com/news/education-dept-concludes-that-connecticuts-inclusion-of- transgender-athletes-in-womens-sports-violates-title-ix/
7 https://www.skynews.com.au/details/_6157675480001 https://www.dailymail.co.uk/news/article-8333507/Controversial-transgender-education-tool- Genderbread-Person-pulled-NSW-school.html
8 https://www.jccf.ca/school-sued-for-telling-six-year-old-girl-that-girls-are-not-real/


There is a growing group of concerned parents9 who have suffered already due to this policy; ordinary, caring, diligent parents whose children have come to believe “transitioning” is a solution to their problems. Many children “diagnosed” with “gender dysphoria” have pre-existing mental health issues, are on the autism spectrum or are simply gender non-conforming and would likely grow up to be gay or Lesbian if they are left alone.

Managing Risk of Harm

The document states in its introduction: “Schools have a legal duty to protect students from foreseeable risk of harm and to do what is reasonably practicable to ensure their safety”.

However, it is clear from the guidelines that the concerns and rights of girls and non- trans identifying students have been completely disregarded and dismissed. The Guidelines explicitly say “The welfare and educational needs of the student are of primary importance and should be the focus of all actions taken by the school”, It is remarkable that the needs of the trans-identified student take priority over the needs of the rest of the entire student body, to their detriment, with girls’ needs failing to be given any consideration whatsoever.

A school’s exposure to liability may be increased if biologically male students are entitled to access spaces that have been set aside for female only use when the girls may be vulnerable, asleep or in a state of undress. Additionally, it appears no consideration has been given to the known and foreseeable increased risk of injury and concussion to girls playing sports should they have to compete against a biological male.

Conclusion

It begs the question, who were the advisers to the Department of Education in relation to this Bulletin? Why has there been an obvious failure to consider the needs of the overall student body against those of a single or very small group of students? Why were the needs of female students ignored? Why has this policy and regulatory capture occurred with no media scrutiny or public debate, except

9 https://www.facebook.com/pages/category/Community/Australian-Parents-Questioning-Gender- 109605477037918/

coverage unilaterally in favour of gender ideology? Why were students, particularly female students, and parents, not consulted?

Recently in the UK, school districts and the CPS implementing similar guidelines were threatened with judicial review and legal action, have now been withdrawn. It will only be a matter of time before similar legal action occurs here in NSW, should these issues not be addressed10.

Bulletin 55 is an egregious example of policy capture by transgender ideologists. It is deeply concerning that such guidelines are being implemented in our schools with little oversight or public scrutiny when it has such a significant material impact on the student body, particularly girls. This has gone far enough, our children deserve better.


10 https://www.dailymail.co.uk/news/article-8301769/Schoolgirl-13-wins-court-fight-forcing- Oxfordshire-council-scrap-transgender-toilets-toolkit.html https://safeschoolsallianceuk.net/2020/05/08/council-ditches-trans-guidance-on-lavatories-after- girls-victory-the-times/
https://safeschoolsallianceuk.net/2020/04/30/cps-guidance-withdrawn-for-review/

Lego, cultural appropriation, Maori

There was an incident that happened about 13 years ago, that forever is included in University classes on the topic of cultural appropriation. It seems so very long ago and I am happy that people have become much more aware, but I’m a little bit sick of the reinvention of what happened at that time. That I’m reposting an old article I wrote to reference it when I come across the discussion again.

The incident was; a Mäori hacker took down a major Lego forum that encouraged the reinvention of Mäori culture and language for the sake of their Bionicle product range. There seemed to be a bit of an upset as a result of this, it was in the newspapers,(e.g. http://www.scoop.co.nz/stories/HL0211/S00055.htm) radio and various academics wrote various articles dissecting the conversation. etc. Even today the incident seems to part of ongoing conversations around cultural appropriation. I wrote an article in 2002 for our Maori website, to discuss that Lego’s actions were just a little example of an ongoing larger story that is replayed.

——————————————————————————————————(2002)
On the Te Taura Whiri te Reo Māori (Māori Language Commission) website is stated the following:
“Mäori is the foundation language of New Zealand, the ancestral language of the Tangata Whenua and one of the taonga guaranteed protection under the Treaty of Waitangi. It also provides this country with a unique language identity in the rest of the world, as this is the only place where Mäori is spoken widely. In more tangible terms, the Mäori language is a powerful social force for the reconstruction of a damaged and deteriorated self-image among Mäori youth, a vehicle of contribution to society, and therefore a means of regaining dignity. Finally, human freedom is dependent at all levels of choice and diversity; linguistic pluralism can be nothing other than a guardian of individual freedom and identity against the forces of conformism.”

The core issue at the heart of this discussion is that of identity.
Who defines who the Māori people are?
Who has the right of representation of Māori cultures?
Who defines our identity to the larger world?
Is it the people themselves: the Māori?

Or is it as the American based BZPower forum insists; that it is the equal right of Americans to reinvent the Māori and other Polynesian and indigenous cultures “as they see fit”?(1)
This small story of LEGO plus the spin-off American online communities’ appropriation of Māori and Polynesian identity and resources to brand their new product line; Bionicle, is a chapter of a much larger story that replays in many places all over the world past and present. It is the ongoing story of western domination; that process of invasion of another’s territory; theft and destruction of lives, resources, the reinvention of history and indigenous identity for the sake of power, profit and the inflated image that the Dominator would present to the world.

The larger story goes like this; the Colonizer (5) has history start with his arrival. All that was before his arrival he determines is wrong, ugly, “primitive” or of no account. All that there is to remind one, of who you really are, what really was ‘so’ before the Colonizer’s arrival has been sought out, destroyed, trivialized or reinvented. The evils and injustices that the Colonizer committed and still commits are hidden minimized or erased. Mythologies, religious stories, foreign ideologies or philosophies are indoctrinated into our indigenous populations to account for this new state of affairs as being ordained or decreed by God, Science or Nature. So that the Colonizer’s way is the only standard and reference to what is ‘real’, the norm, of value, of worth or of beauty. It is a ‘one true way’ mindset that categorizes superiority or inferiority according to adherence to its norms and values only. This mentality permeates and underscores every facet of Western society, so it is predominantly an unquestioned ‘given’ from one generation to the next down to this present day.

Many contemporary Māori are alienated from their roots, they’re adrift, neither fully participant in the western cultures that engulf them, nor firmly anchored to even a memory of the ways of life that once sustained our ancestors. For those who are lost to their Māoritanga the whole of who they are is valued of little worth as accounted for by the larger society.
The first vehicle to the recovery of esteem as Māori, Polynesian, or Aboriginal people or for that matter any other human person is to recover the truth of your past. To know from who you were descended the truth of your people’s culture and teachings to really understand for yourself who you are. For Māori, it is to discover in fact a great heritage and diverse history that frees you from the inferiority mentality derived from the indoctrination of false identity. The heart and center of identity as a people and a person are family, land, and truth told both past and present. The guardians of Māori cultures, histories, and identity are in fact the Māori themselves; we alone are the authors of our cultures’ past and present. It is our birthright and our current responsibility. We reject the reinvention of who we are as a people as defined by any both past and present who so claim whether they be from America or any other country. Historically and to this day the images and identities you project onto us are false and profit you alone to our detriment.

Let’s look then at a smaller chapter of that larger story
When in 1997 the Lego Company for the first time experienced a loss, they realized that today’s kids wanted something “cool” to play with. Something that would encompass more than building blocks they wanted a story and to go with that story “they wanted neat pieces that they could use to create their own play fantasies” (2). This observation was confirmed when they introduced the Star Wars line, which took them out of the red for 1999. Lego now knew for a fact, that ‘bricks with a story’ was a great money-spinner. However they had to pay out a large number of royalties to Lucasfilm cutting into their profit margin, hence they got the idea of avoiding that expense by creating their “own” story.

In much the same way that George Lucas turned to the indigenous cultures of Asia (3) to appropriate it’s mythology and spiritual teachings as the background stories and culture of his own ‘invention’. The LEGO Company followed that pattern looking instead to Polynesia for something ‘new’ and ‘creative’ to offer the international market interweaving a story as did Lucas with elements of other cultures reinterpreted through a western perspective.

Again, in much the same way that the early dominator cultures mined the natural resources of land, sea, and air for industry and economy. In more recent times the Western world at large has discovered there is just as much profit to be had in mining the spiritual and cultural resources of indigenous cultures for its new products. LEGO is nothing if not a product of it’s own larger past.

Early 2001 Maui Solomon a Māori Lawyer drew up a letter of complaint to Lego. Although there were accusations that the premise of the game borrowed from the story derived from the Easter Islands people (who are closely related), the major complaint ccentered on Polynesian names that were used out of context and without permission. After meeting with Māori representatives, it was reported that in the latter part of that year that, Lego would discontinue the use of Maori words such as “Tohunga” (Maori for “priest”), “Pohatu” (“stone”), “Kanohi” (“mask”), and “Whenua” (“earth”), and in the future would refrain from using names taken directly from other cultures. (4)
Over a year later LEGO has made a cool £6m from the toys, plans a new range of remote-controlled ones plus a movie associated with Miramax, has cartoons, multi-media entertainment and has formed an alliance with Nike. It has not (with the exception of the word “Tohunga”) discontinued the use of all the words that they originally misappropriated. Furthermore, the BZPower forums and other Bionicle online communities continue to use all terminology originally employed by the LEGO Company and sources the entire Māori language for fantasy and role-play. The exploitation of Māori resources such as online translators designed to assist the recovery of heritage and identity of the sake of our Māori youth is used instead to fabricate and re-invent anew false pseudo-Polynesian identities for the entertainment of American and European consumers; young and old.

The administrators encourage this exploitation as an expression of American cultural values: “You[r] language belongs to anyone who wants to use it. You are not going to like this, but we in the United States, have as much right to your language as you do. We have just as many rights to use it as you do, and I know I will continue to do so as I see fit.” (Assistant administrator BZPower forum)

“Yes I condone “bastardizing” other cultures, as you would like to put it, as it is my right to and I will do so as I see fit.” (Assistant administrator)
We refute America’s ‘right’ to colonize our culture anew for the sake of profit and gain let alone this company’s. We recognise that they have no ethical right, that they are but asserting their ‘might’ as a larger bullying power to take without asking. We stand against demeaning Māori peoples lives and culture as a resource for fantasy role-play and product. We stand also against the false representation of the Māori people by such forums as exemplified by BZPower forums which follows the patterns of a vile tradition that has done generations of harm to First peoples the world over.
Last year the first and only comment made by a Māori on that forum, which expressed firstly my feelings on the misuse of Māori language was immediately suppressed. Discussion was re-opened after I challenged that act on the basis of free speech. Through the course of that debate I was informed that the rights of an indigenous person of another land to use free speech to define my culture and represent a Māori’s voice was denied:
“You have no rights granted by the American constitution. Only citizens of the United States have those rights, and your right to express your opinion here is only granted by the administration of this website, a website that you bash as unfair. Therefore you can be stopped from saying everything, because freedom of speech does not apply to you, however the administration (of which I am a part of) have given you the right to discuss your opinion.” Assistant Administrator.

Not too long after explaining why the misuse of Māori culture was wrong all commentary by myself or any Māori for that matter on the issues of Māori language and culture used by the BZPower forum users was forbidden by the administrators. Freedom of speech is not as many Americans think the unique invention of White American culture. Evidence of this was among my own ancestors and was more likely adopted into the American constitution based on the practices of the Iroquois people that Benjamin Franklin and Thomas Jefferson studied. Freedom of speech as given by them is the right for ALL people to be heard regardless of race, nationality, sex, religion, or any other criteria.

After the BZPower forum was recently hacked into by an alleged Māori hacker Bzpower posted the following:

“BZPower would like to ask for the assistance of anyone within the Maori sphere of influence, who would be able to help convince the radical elements within the Maori people that such destructive behavior is counterproductive to improving that culture’s international acceptance. Such negative publicity is certain to impede anything the Maori are trying to achieve, and shutting down a forum about a toy will certainly do more harm than good in the long run.”

Frankly, no stereotyping of a people for the sake of fun and games serves anyone in the short or long term. The false representation of a culture does not render ‘international acceptance’ it suggests instead that an indigenous culture needs to be reinvented by the western world to be considered equal or of worth. The world would be a better place if America recognised the right of other people to be governed by their own people. It would be better again if the western world recognised that human freedom is dependent at all levels on choice and diversity; linguistic pluralism let alone unique systems of thoughts and ways as found in indigenous cultures ensure a diversity of human expression which stand as a bastion against the forces of conformism; represented by global commercial interests it offers a choice to what the market would profit from having you see yourself or others as.

This article has been written in response to the BZPower forums intimating that the hacker was associated with Aotearoalive.com (because of a debate I had with them a year ago), instigating an ongoing barrage of cyber attacks on one of New Zealand’s largest and most current Māori websites. Although personally, I don’t endorse hacking – I can fully understand that when an organization or a people for that matter forbids the freedom of speech of all people regardless of race or nationality and furthermore encroaches on that’s people’s wellbeing that you allow no other expression but retaliation. Certainly, BZPower can not expect sympathy that their ‘freedom of speech’ is removed when they do so to others.

The recovery of all Maori people’s identity and well being will continue; our response will be, tell the truth, both past and present of our culture first and foremost by the people, for the people without the re-invention practices of the West. Although our ability to get our voice heard is substantially less than the wider commercial world we clearly signpost authentic Māori sites under second-level domain names and interlink authentic websites off our main Māori portals. The contrast between authenticity and fabrication is immense; the first builds a people and provides tools to the wider world for a diverse array of needs that require a diverse array of solutions, the latter is exploitation for fun and the belittlement of others.

* Tangata Whenua means people of the land.
* Taonga means treasure.
* Māoritanga – Māori ways and traditions
1 “my right to bastardize other cultures as I see fit” Assistant Administrator of BZPower forum
2 http://www.bzpower.com/ref.php?ID=489
3 http://www.middleenglish.org/spc/23.1/wetmore.htm Kevin J. Wetmore, Jr.
The Tao of Star Wars, Or, Cultural Appropriation in a Galaxy Far, Far Away
4 http://www.icv2.com/articles/news/840.html