Schedule 10: Crimes (Sentencing Procedure) Act 1999
Section 21A
Explainer for a General Audience
The recent proposal to amend the Crimes (Sentencing Procedure) Act 1999 aims to include "gender identity" and "particular variations of sex characteristics" as factors that could increase the severity of sentences for crimes perceived to be motivated by prejudice against these groups. These amendments when put in law elsewhere have undermined women's rights, compromised child safeguarding, eroded civil liberties, and deepened existing power imbalances within the legal system.
The concept of Gender Identity: Firstly, it is important to understand that it is upon this nebulous and vague concept of “gender identity” that self-identification is based. It is commonly understood to be a performance of sex-based stereotypes as indicated by mannerisms or dress, or language via “preferred pronouns” and name. This is reflected in the definition given by the Sex Discrimination Act: “gender identity means the gender‑related identity, appearance or mannerisms or other gender‑related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.”
See The Key flaws and myts of 'Gender Identity' ideology
In other words, one’s ‘gender identity’ is subjective, performative and for the most part is transitory. Allowing people, in particular minors, to change their birth certificates and legal status when their change of identity is more likely transitory, resolved through the completion of puberty, or a purely subjective state soley defined by an individual in question, does not lend itself to sensible public policy.
Here are the key points to this ammendment:
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Enhanced Penalties: If a crime is found to be motivated by bias against someone’s gender identity or sex characteristics, the offender could face a harsher penalty.
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Erosion of Women’s Rights: Adding "gender identity" and "variations of sex characteristics" as aggravating factors could potentially prioritise the protection of certain groups over the biological realities and rights of women.
For example, in scenarios involving sex-based rights conflicts, such as those involving access to women-only spaces (e.g., changing rooms, shelters), the amendment could be used to argue that denying access based on gender identity, even when aimed at protecting the privacy and safety of women, is an aggravating factor in a criminal sentencing context. This puts women at a disadvantage, forcing them to accommodate men or face legal repercussions, thus eroding established protections based on sex.
See: lostwomensrights.com for the impact so far for women in Australia and their testimonies here: NoConflictTheySaid.org
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Impact on Children: In legal matters like custody disputes, prioritizing a child’s gender identity as a significant factor could potentially overlook other aspects of the child’s welfare and emotional needs. For instance, in custody battles or cases involving the welfare of the child, arguing that a parent's refusal to recognize a child's asserted gender identity is an aggravating factor could overshadow other welfare considerations. This focus might compromise the child's broader emotional and psychological needs by placing undue emphasis on gender identity.
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Free Speech Implications: These changes could limit open discussion or critique of gender identity issues, as expressing dissenting views might be seen as aggravating factors in legal cases. If expressing scepticism or criticism about gender identity ideologies is potentially seen as an aggravating factor in criminal acts, it could stifle legitimate public and private discussions. This poses a significant threat to academic freedom, journalistic inquiry, and personal expression, all of which are essential for a democratic society.
See: https://www.lostwomensrights.com/fs (Free Speech)
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Potential for Legal Abuse: The amendments could be exploited in personal disputes, where false accusations related to gender identity could unjustly influence the severity of legal penalties.
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Complications in Law Application: The amendments might lead to significant complexities in the legal interpretation and application of these new categories. Defining and proving "gender identity" and "variations of sex characteristics" in legal terms could lead to inconsistent rulings and confusion, complicating the judiciary's task and potentially leading to uneven applications of justice.
While the intent behind the inclusion of "gender identity" and "variations of sex characteristics" in the Crimes (Sentencing Procedure) Act may be to offer greater protection to vulnerable groups, the potential for unintended consequences, particularly in the erosion of women's rights, child safeguarding, and freedom of speech, is significant. These amendments could also lead to new forms of discrimination and power imbalances that exploit the legal system.
Recommendation
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Avoid incorporating gender identity as an aggravating factor in sentencing to maintain judicial impartiality and fairness.
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Focus on protecting all individuals equally under the law without giving undue weight to unverifiable personal identities.
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Withdraw the proposed amendments
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