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/

Featured

Change or Suppression (Conversion) Practices Prohibition Bill 2020 VIC Summary and Analysis

Written by Law Graduate Katherine Deves

Main purpose of the Act is to denounce: to condemn or Censure openly or publicly

The Act creates a Civil Response Scheme within the Victorian Equal Rights and Human Rights Commission (“the Commission”):

  • Non-judicial and non-elected politically appointed body
  • Non-judicial therefore not subject to the rules of evidence, or practice and procedure
  • Empowered to create offences
  • Empowered to amend Acts (only parliament has that power)
  • Redefines words (sexual orientation) and introduce ideological concepts (gender identity, sex characteristics)
  • Officers are employed as Public Servants in VIC
  • The powers of the Commission may be delegated to any member of staff of the Commission.

Objects of Act

The object empowers the right to denounce (i.e. condemn or censure a person openly and publicly) a natural person or any organisation for failing to acquiesce to the legislation, backed by significant criminal sanctions and substantial fines.

It is not normal legislative drafting, emotive position statements with no legal meaning are being made “feel welcome and valued in Victoria” and “live authentically and with pride”, “broken and in need of fixing”, “shortcomings”, and in the absence of evidence that such conduct are “deceptive and harmful” to individuals and the community “as a whole”.

The legislation empowers the Commission to publicly excoriate anyone who causes “serious harm” or “harm” to a person by failing to affirm their sexual orientation or gender identity.

These two concepts are defined in the legislation, but they are sufficiently broad as to be rendered meaningless (see below) and could be interpreted to be applied to any feeling a person may experience towards another person, or their name, dress, mannerism or subjective feelings about themselves.

A contravention of the Act is any conduct that is not supportive of or affirms a person’s gender identity or sexual orientation.

It means that if a person fails to affirm another person’s “gender identity” their employer can be held accountable, as can any body corporate that they are employed by or act for.

Suppression is not given a definition, it relies on the initial premise and fails as an illogical fallacy, and it is given sufficiently broad scope as to mean anything that does not affirm or support a person’s “gender identity” or “sexual orientation”.

The Act has extra-territorial application, meaning it can apply to conduct occurring outside of Victoria, provided there is a “real and substantial link” to Victoria such as the harm caused occurring inside Victoria even if the person who contravenes the Act is outside the State.

“Sexual orientation” is redefined as same “gender”, by doing so it erases the concept of homosexuality – same SEX attraction, and fails to define “gender”

If a person consents to treatment for their gender dysphoria, and they want assistance reconciling with their natal sex, anyone assisting them in this could be held liable

Any person is able to report another person to the Commission for breach of the legislation

The language used is archaic and medieval – they refer to “deliverance practices” and “exorcisms” s5(3)(b) and denouncement s1 in the legislation.

The scope for prohibited conduct not only covers in person interaction, but online communications s5(4).

The penalty is up to 10 years imprisonment and 1200 penalty units ($198,264.00) or 6000 penalty units for an organisation ($991,320.00) if “serious injury” is caused.

Serious injury is a legal term defined in the Crimes Act 1958 VIC s15

  • Life has been endangered; or
  • An injury that is substantial or protracted;
  • But under this Bill the Commission is entitled to determine “serious” as it sees fit – depending on the regularity of the conduct, and in consideration of the objects of the

The penalty is up to 5 years imprisonment and 600 penalty units ($99,132) and/or 3000 penalty units for an organisation ($495,660) if “injury” is caused.

Injury is a legal term defined in the Crimes Act 1958 VIC s15

  • Physical injury; or
  • Harm to mental health;
  • Whether permanent or
  • “Harm to mental health” includes psychological harm but does not include an emotional reaction such as distress, grief, fear or anger unless it results in psychological harm
  • Note: for psychological harm a mental illness such as depression, anxiety or PTSD must be established

The penalty is up to 7 years imprisonment and/or 240 penalty units ($39,652.80) if you take someone out of Victoria for the purpose of a “change or suppression” practice.

If anyone advertises about change or suppression practices they can be fined up to 60 penalty units ($9,913.20), and an organisation up to 200 penalty units ($33,044). The Commission is empowered to demand any person produce any documents and will be fined up to 60 penalty units ($9,913.20), and an organisation up to 200 penalty units ($33,044). should they fail to do so.

A corporation will be held criminally responsible for any associate who engages in conduct, if they are aware of any associate engaging in conduct, or if there is a “corporate culture” that encourages or tolerates conduct, that has the intention of contravening the act.

The Commission

The Commission has placed themselves as judge, jury and executioner. They are empowered to assign authorisation for any of their powers to any person.

They are empowered to:

  • Create the message;
  • Conduct research to create the message
  • Educate the community;
  • Enforce compliance including criminal sanctions and substantial

The Commission is empowered to perform their functions against:

  • A natural person;
  • An organisation or corporation;
  • An employer, principal, organisation or corporation who will be held vicariously liable for all employees, agents, officeholders and volunteers, unless they took steps (proven on the balance of probabilities) to prevent the

The Commission is fully empowered to perform these functions:

  • Receive reports from any person about any other person or organisation;
  • Request any information from any person or organisation who has allegations made against them;
  • Establish the policies and procedures for reporting;
  • The report does not yet have to be in any proscribed form;
  • Conduct any investigation if it advances the objectives of the Act in any manner it sees fit
  • If the investigation contravenes the principles of natural justice, it is allowed to do so if the Act allows for that;
  • A person or organisation can be compelled to provide the information, if they fail to do so they can be fined up to $9,913.20 as a person, or $49,566.00 as an organisation;
  • A person or organisation can be compelled to attend if the Commission deems it necessary and relevant;
  • Although a person may refuse to do so on the grounds they may incriminate themselves;
  • Establish the processes for determining the outcome;
  • Determine the outcome, along with the complainant;
  • The response is determined by the needs and wishes of the person affected by the contravention;
  • Facilitate the outcome;
  • That anyone bringing proceedings under this Act is authorised to do so;
  • The Commission may take any action it sees fit in relation to an investigation and enforce compliance or any other undertaking to refrain from or agree to take certain actions;
  • These enforceable undertakings will be made public;
  • Determine whether the parties are entitled to anonymity or not, or whether documents or information should be released publicly;
  • The Commission or anyone empowered with authority by the Commission can determine whether any information can disclosed to the public;
  • This person empowered to make these disclosures must not be required to provide any document containing information the Commission deems to be protected to a court unless it is to prosecute someone for a contravention of the Act, a criminal proceedings or with consent;
  • The parties can reach an “agreement” by consent to be certified and registered by the Commission which can then be enforced;
  • Provide “targeted education” the person or organisation in contravention, including the principals and office-holders;
  • Provide support to complainants to report contraventions to police;
  • Report the contravention to any other public body or agency, including the police;
  • The Commission is entitling itself to provide advice to the court in relation to contraventions of this Redefinition of Words “Gender Identity” means a person’s gender-related identity, which may or may not correspond with their designated sex at birth, and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal preferences;”.

This definition is broader than the Commonwealth definition as it has removed the words “deeply held” leaves limitless scope for application.

 Sex Characteristics

 “Physical features relating to sex” replacing the concept of biological sex, and breaks the body in parts instead of treating the human form holistically.

 Sexual orientation has been redefined as:

 “a person’s emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender;”.

This completely erases the concept of homosexuality – same sex attraction – and replaces it with an ephemeral, subjective description that could apply to anyone’s feelings of any kind about anyone else.

Amendment of Family Violence 2008 and Personal Safety Intervention Orders Act 2010

The practical application of this is that if a child or spouse declares a sexual orientation or gender identity, they are entitled to have a member of their family or their spouse charged with domestic violence and a bring an Intervention Order against them if they fail to affirm or support them.

The practical application of this is that the transitioning family member can retaliate against family members who refuse to support or affirm, or even remain neutral, in light of their SOGI. It will enable people to impose criminal sanctions on their families – with respect to the stories of ROGD girls, AGP males, and transwidow and transorphan survivors, it is completely foreseeable and predictable the havoc and harm these amendments will wreak on families and relationships.

Explanatory Memorandum

  • Promote the rights of LGBTIQ+ people under the law; with the passing of the same sex marriage statutory provisions people with a same sex orientation achieved legal equality under Australian
  • Under our law, people claiming a gender identity or with an intersex condition are protected under the Sex Discrimination Act
  • Queer is not a protected characteristic recognised or defined anywhere in Australian law.
  • LGBTIQ have the right to “freedom of thought, conscience, religion and belief”, if the Act is enacted, these rights will be denied to those whose conscience, thoughts or belief systems do not acquiesce to gender identity
  • Egregiously, they claim to rely on human rights protections for children to be protected by society and the State: it is arguable that affirming children to set them on a medical and surgical pathway on the basis of a belief they hold that is factually impossible (that they change sex) protects
  • That failure to acquiesce to, and openly criticising, gender identity ideology is “propagating myths and stereotypes about sexual orientation and gender identity”