GUEST BLOG: Kelly Ellis – We’re not fools. We know hate when we see it

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hate

When appearing in a new forum or before a new judge, getting there early carries two advantages. It allows an early look at the players and, of course, guards against the distinct disadvantage of arriving late, wheezing, gasping, spilling documents and, yes, even ink on a bad day.

With that in mind, two years ago I entered a hotel conference room where submissions were being heard on what I’ll lazily call the Marriage Equality Bill. As a lawyer who has heard many things in court, it was easy to sit through religious lunatics talking about the impropriety of gay sex and “God’s design” of the human body. But my 16-year-old son, sitting beside me quickly became agitated and bristled.

Soon the man talking about Sodom and Gomorrah was cut short and sent away. My boy looked at me, appalled. Surely he can’t say those things? Surely we should not have to hear that hate? I gave a world-weary shrug. He looked at me, wondering why I wasn’t more indignant.

Soon some kids his age were on. They talked about how marriage equality would make them feel like fully-fledged members of society. They talked of being bullied in school and how this bill, if passed, would be a declaration to everyone that they were equal. Until then, they said through their tears, they would be second class citizens, a little less than human.

Even a leathery old litigator like me, stained by a thousand children’s tears, swallowed hard at this testimony. These kids were the best messengers for they are the ones who, by the dozen, hang themselves from trees as a last defiant act of agency in a world where “gay” is an insult and being a “girl” is pathetic.

Louisa Wall’s bill went through. Some opposed it, but were overwhelmed. I wonder about those kids and think of their smiles in the hope that it will balance my memory of the pain I saw. And, of course, I share their joy, being a beneficiary of marriage equality.

This feeling is more than being in the tent. It’s ownership of the tent. It’s true participation. Because, let’s get real, in this country, you either are or you aren’t. Human that is. Human and worthwhile. Human and worthy of human rights, say, under the Human Rights Act.

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But there are still kids that hang themselves from the trees because they do not feel inside the tent.  This aspirational Human Rights Act has never included transgender people. In a list of prohibited grounds of discrimination, there is no mention of us. A previous Solicitor General opined that by a convoluted path through English common law, there is inclusion. But no one else inside the tent has to argue they haven’t got a ticket, but that they really should be in. No one else has to argue that they’re fucking human.

This opinion, given by the Solicitor General, that transgender people have HRA inclusion has been relied on by successive governments to keep transgender people out of the Act. After all, they’ve said, their mates inside will let us in with a wink. No one would really keep us out.

Earlier this month Judith Collins put the skids under a bill that would expressly give transgender people equality under the Human Rights Act. Supplement Order Paper 432, again promoted by the conscientious Louisa Wall, was to clarify the Act and under the guise of the Statutes Amendment Act Number 4. Effectively using a power of veto, Collins is reported to have seen transgender inclusion as too substantive or controversial.

Effectively we’re being told that we’re in the tent, but it would be too controversial to give us the stamp on the hand that would legitimise our entry. Without proper identification as humans in the tent, we have to argue with the bouncers.

Collins, unbelievably, fails to see that having to argue we’re included in the Human Rights Act sets us apart from those who don’t. That we have to argue for cover, that we, in essence, need to argue our humanity. As one astonished commentator wrote – isn’t that the thing about human rights – we don’t have to argue for them?

The consequence of this denial of rights is pain which is shared and spreads. In Auckland last year, 1.2 percent of high school kids identified as transgender.

One in five had tried to take their own lives in the previous 12 months.

What a terrifying prospect for the families of the hundreds of Kiwi transgender kids too frightened to reveal to the world who they really are. Or, perhaps, those bravely being authentic and experiencing the lack of protection from the slings and arrows that inevitably come their way.

The opprobrium visited upon transgender people is astonishing. I recall one of my abusers spilling red wine and ciggy ash on the carpet of a non-smoker hotel room as she berated me. Between her gasps, I managed to squeeze in that it wasn’t as if I’d taken up something dangerous like butter.

And yet this feeble attempt at humour (which unfortunately escalated the situation) rang as hollow then as it does now. Being transgender is far more dangerous than butter. The danger is the prejudice that transgender people experience; the rejection by family, friends, colleagues, clients, employers, lovers,  the good old fashioned redneck hate that’s screamed from passing traffic, the jokes, the ridicule, the bashings and the murders.  Although I’m fortunate to have a great deal of privilege, it simply means people are simply more discreet in their discrimination. Those who spread their prejudice never do it to my face. And while my privilege shields me, there is no doubt there are some places I never go, for it is too dangerous. With my mug spread over the news and now billboards in this small town, I have never experienced anything overt in public. But I’m alert and a strong survival instinct makes me listen carefully for footsteps behind.

No one overtly discriminates against me. If they did, I’d take a case against them. And the starting point would be an argument that I was human. This isn’t hard to swallow, it’s impossible. My throat is too choked to swallow anything. And if I didn’t have a home, work and a loving family, I would feel no kind of social inclusion. I would feel trapped by unspeakable loneliness and I would show that far from being no escape, there were a thousand ways out of there. As my government has betrayed me, again, by locking me out, I cling for dear life to these connections and wonder how I ever made it through my teens.

We’re on the outside looking in when it comes to human rights. No government has ever seen us worthy of inclusion. Lives, literally, are being traded off for convenience. Apparently we’re too controversial to consider. Calling us human is too significant and clearly arguable in their eyes. We are not fools. We know hate when we see it.

But those who hate us so much they keep us locked out of the Human Rights Act have the blood of our children on their hands. It’s time we all supported these hundreds of dying kids. It’s time we smacked down our prejudiced mates instead of being silently and shamefully complicit. It’s time opened the tent and let these kids into the warmth before more lose that last ray of hope and wander off, unloved into the snow’s cold embrace.

 

 

 

Kelly Ellis, Whangarei Labour Candidate, former journalist and current lawyer grubs her living from the criminal justice coalface but dreams of being a better parent and more dutiful partner to her long-suffering family.

 

29 COMMENTS

  1. A fair amount of anger in this piece, and as a tg woman, I understand it. Turns out a lot of people really are not nice. I feel they are worthy of a more elaborate turn of phrase, but I won’t use those words on a public forum.

    Keep standing up. Keep fighting. I’m right behind you.

    Every human has the right to be treated with dignity and respect. Seems so simple. Wish it was. I wish those who want to control, demean, belittle and condem us as hot even worthy of human rights , well, I wish they would wake up and realise we are human beings too. We have feelings. We are real.

  2. “religious lunatics” – Christians know hatred when we see it. Liberals hate us and its clear they want to shut us out of the societies that they are trying to hijack. I’m tired of this anti Christian bullshit. Do you know how hard it is to be a part of the Labour Party as a Christian? You guys are just too good for us. That’s how it often feels, and that’s the vibe I get from this blog entry.

    It was under the identity politics movement, starting in the 1980s, that the poverty gap exploded. It’s disingenuous to talk about suicides as a liberal unless you’re going to talk about the suffering and misery your movement has caused. Take responsibility for the damage your movement has done before you start preaching at others.

    • Umm Vaughan, you’ll find that Kelly mentioned ‘religious lunatics’ as a wider concept, not Christians specifically. The likes of St Matthews In the City support these kinds of human rights. Or are they not ‘real Christians’?

      And the poverty gap widened in spite of identity politics, not because of it. Unless of course, you count the old Business Roundtable as part of the identity politics movement.

  3. Vaughan Little, I do not find it hard to be a Christian in the Labour party but sometimes I find it incredibly difficult to be a Christian in the church. This is because so many Christians use the bible to justify their hate and prejudice when funnily enough Jesus said nothing whatsover about homosexuality or transgender people in the gospels and spent his time ministering to prostitutes, lepers, tax collectors and other outcasts of the time. There is anti gay stuff in both the old testament and in the letters of the new testament and that sits amongst other odd stuff such as women not being able to speak in church, stoning adulterers and not eating shellfish. The haters are the right-wing Christians who seem to have lost track of the core message of the gospels and focus on their own pet hates..

  4. Oh yeah, religion’s fucking great. I come from a catholic family who won’t acknowledge who I am cause I’m trans and evil. And this family came from bretheren roots who were disavowed and ostracised when one dared marry a catholic. Didn’t you see Georgina standing in front of swathes of black wearing and black hearted fundamentalist destiny ‘Christians’.

    Yeah, religion’s fucking great when you have Israeli’s preaching genocide and Palistiniens Jyhad.

    Don’t get me wrong, if true Christians got off their fucking asses and started standing up for love and acceptance and a bit of good old fashioned decency maybe we wouldn’t have the farcical bullshit that prevails in our supposedly decent society. It could be so good, instead we get a diabolical patriarchy hell-bent on preaching control and dominion. If you ask me religions got a lot to answer for and not all of it’s ‘good’, quite the opposite.

  5. The reason this SOP failed has nothing to do with Judith Collins and is entirely to do with the Statutes Amendment Bill being an inappropriate legislative mechanism for making such a change. The purpose of these bills is to make uncontroversial, minor amendments to legislation. This amendment is clearly not uncontroversial. My flatmate who is a trans woman was incredibly stressed about this legislation doing further harm, especially because if it is done wrong it will be harder to change in the future.

    By adding gender identity to the grounds of sex, s 21(1)(a) of the HRA would read “sex, which includes pregnancy, childbirth and gender identity”. Surely it is far more logical and far more respectful to trans people to include gender identity as its own ground? By conflating gender identity and sex, such an amendment risks gender identity being read as a subset of sex – a narrow reading which would not necessarily protect diverse trans identities. Our law is already incredibly confused about the meanings of sex and gender, and tends to interpret sex in a narrow and biological way. Including gender identity under sex will only add to this confusion.

    Additionally, if a court were to look at the legislative intention when interpreting such a section, they would probably interpret it as confirming the existing practice of the HRC taking complaints of discrimination on the basis of gender identity under the grounds of sex anyway. Basically what this means is that the amendment would be unlikely to change anything in practice, while leaving many trans people and other people with diverse gender identities unprotected by the HRA. The Crown Opinion was a stopgap measure, and this would have been another stopgap measure which would have simply been an extension of that. This sets a dangerous precedent of trans rights being protected by piecemeal measures rather than actual substantive change.

    I don’t like National any more than you do, but really, Louisa Wall should have made a much more thorough attempt at amending this legislation in an inclusive and consultative way rather than these token crumbs she is throwing at the trans community. I think it would be more helpful to hold her to account and demand better from the Labour Party than to use this as an excuse to attack National.

    The HRA should include gender identity and gender expression, it should explicitly cover intersex people, and it should cover a wider range of sexual orientations. All of this should happen in full consultation with the relevant communities rather than be snuck through using inappropriate processes. If Labour wants to protect trans people they should be writing a government bill to do all of these things. Trans people are not going to get justice from people who are afraid to openly support them.

    • Just what we need – a non-trans person who has never had to argue the humanity of trans people in court explaining it all. The point is Emily, that no one should consider trans rights controversial.

      • I have to admit my eye’s glazed over at Emily’s post. Why do people make simple things so complex?

      • actually most of what emily said is basically the same stuff that i believe (i am the trans woman flatmate she mentioned), especially about how the SOP would have just inflicted another half-measure that delays real progress, but i don’t always have the energy to engage in these discussions online

        not to mention that the previous labour government obviously considered trans rights controversial or they would have amended the HRA instead of going with the crown law opinion; if trans rights are something that labour believes in then they should have no problem with proactively engaging with trans people and preparing a government bill for when they are next in government

        if they are afraid to do this then attacking national seems a bit hypocritical, i mean bigots are bad enough but moral cowards are even worse

  6. I agree that this amendment wasn’t ideal. It was, however, on the table and would have given trans people an advantage in our bid for equality. I won’t say I don’t care by what mechanism we advance towards equality, nor will I say that perfection shouldn’t have been striven for. However, this bill was better than nothing – and that’s what we’ve had under the Human Rights Act.

    As for Labour’s past action on trans issues, I’m not so fussed about the history which I cannot change. I will say though that there is plenty of trans awareness within the party and that people like Louisa Wall are demonstrating a commitment advancing trans equality.

    • if you’re not concerned about history then you are not equipped to change the future either, because labour today are no better than they were a decade ago

      in order to improve they have to openly declare support for us and back that up with real action and engagement where we decide the terms, respecting the fact that we are the experts on our own lives and that they are not entitled to dictate the terms of our liberation; louisa’s SOP would have been pretty much the opposite of that, a paternalistic half-measure that would only serve as another obstacle to real change

      she is not on our side in any meaningful sense, if she cared about anyone other than cisgays then she would have used her member’s bill to protect trans people (or intersex people) rather than to get marriage (of course if labour had gone for marriage instead of the half-measure of civil unions in the early 2000s, we might have been spared a decade of waiting for cisgays to get shiny things before we get anything of substance)

      not to mention that when i asked her what her position on non-monogamous relationships was at a lecture in late 2012, she responded with what was possibly the most hate-filled tirade i’ve ever seen from a supposedly progressive person, employing the exact same slippery-slope arguments that homophobes use and everything, she will not hesitate to attack and screw over people she perceives as posing even an incidental threat to her real goals

      she won’t do anything proactive unless it’s ultimately about cisgays, this SOP business was about being seen to do something (regardless of its chances of success, the harm it could have caused, or whether it was in a form we actually wanted) so as to deflect and silence trans people’s criticism when she jumps straight into her next cis-centric project and throws us all under the bus again

      • The Emily’s consider equality ‘too controversial’ to be addressed by the SOP method but believe Louisa should have included non-monogamous relationships in her marriage bill. Warped reasoning girls – unless you’re just having an angry rant. Angry rants are OK but let’s not pretend they have any substance.

        • actually you have it completely backwards, while i would have preferred that she had drafted a more inclusive marriage bill, marriage is of no personal interest to me and is much less important than effective and comprehensive HRA protection for trans people generally (which the SOP would have obstructed); i’ve maintained that position since the day the marriage bill was drawn from the ballot

          the point of the non-monogamy anecdote was to illustrate her hatred and aggression for anyone whose opinions or politics she felt threatened by, i mean she was a 40 year old MP ranting at a bunch of students because one of them wasn’t on board with her pet political position

          but clearly i’m the villain for mentioning this, and for expressing frustration at the fact that the labour party continues their decades-long run of weaseling out of providing trans people – and others who are similarly vulnerable – with robust protection from discrimination that covers all of us, rather than just the least vulnerable among us

          • ‘to illustrate her hatred and aggression for anyone whose opinions or politics she felt threatened by’? Hatred and aggression? That’s ridiculous over the top rhetoric and says more about you than it does about Louisa. I agree that Labour has very publicly missed out on it’s opportunities to provide trans people with the same protection from discrimination as others have and that’s simply not good enough but attacking Louisa who has a least stood up for us is a bit much.

            • yeah, i was there and you were not, don’t tell me that i don’t know hatred and aggression when they are directed at me

              and she obviously miscalculated the degree to which it was acceptable in that context because she visibly alienated a good portion of the class, i had people offering me support afterwards and everything, and from what i hear she has not been invited back to give another guest lecture since

  7. I don’t understand why my human rights must be partisan.

    So I have to support this or that party to be treated as human?

    The problem is bigots. And they are everywhere.

  8. And by taking sides you are playing into their hands.

    There ain’t no sides sunshine. We are in this togeather.

  9. I couldn’t disagree more Emily. Marriage equality was a huge thing for trans people. It removed an absolute prohibition on marriage for some people and a requirement for medical examinations prior to being given a marriage licence.

    I am a direct beneficiary of that. This was a tremendous advance for trans people and I for one will be forever grateful for Louisa’s bill. I don’t think, from memory, a single trans person appeared before the select committee opposing it.

    As one of the few people who have argued in court that we have HRA cover, I can say that express inclusion would be an advantage to my clients. The plight of the polygamous pales somewhat in comparison and, I rather suspect, if it had been included in the bill, we would have no marriage equality and a continued ban with medical exams for some trans people who wanted to marry. To say that Louisa Wall has thrown us under a bus is nonsense given that the only trans inclusive bills that have been put before Parliament in recent years were promoted by her.

    • it’s nice that the changes to marriage have directly benefited you, but you are in quite a position of privilege if housing, employment, healthcare, and protection from violence are not bigger issues for you as they are for many in my generation

      furthermore louisa’s marriage bill as initially written did not include trans people in the manner you describe, so if everyone uncritically supported her actions as you advocate then you would not have gained those benefits

      her SOP is similar in that it was in desperate need of engagement with trans people, but worse in that it would have avoided all such engagement (making a meaningful challenge to its ineffectual and non-inclusive approach impossible) and would have effectively solidified categories of deserving and non-deserving trans, intersex, and genderqueer people within the law for years or decades to come

      labour has a history of doing as little for trans people as they can get away with, and louisa is as much a part of that as anyone given that nothing she has done or tried to do has helped the most vulnerable among us; when you support her, you’re saying that putting forward any bill that does anything for any trans people is sufficient to be considered progressive, which is within a hair’s breadth of praising people for not actively seeking to harm us

      we can do better than that, the best course of action in this type of situation is to raise the bar for them rather than let them buy us off at a price they set, it means better outcomes for all of us and it is the only option that doesn’t leave any of us (or those we should be supporting) just as vulnerable and with less power to change that in future

  10. Emily, as a person working for transgender clients I can say that SOP 432 would have had useful application. I’m grateful for any weapon in the battle for transgender equality and this would have been one.

    Judith Collins scuppered this bill and if you want to support her in that, I guess it’s your prerogative.

    Far from solidifying categories of trans people, the words “gender identity” would have been subject to interpretation by the Courts. The courts are more flexible, better able and quicker to adapt to a fast-changing landscape than Parliament.

    Imperfect that SOP432 was, it would have provided a valuable tool for those representing transgender clients. I suspect, Emily, you’ve not fought for the freedom of a transgender person by asserting that they have rights under the HRA that have been breached. When you have, come back from this battlefield and tell me you don’t want an imperfect weapon now but would prefer to wait, maybe for years, fighting with bare hands. I guess you have to be there to know. When you have, let me know.

  11. if international cases are anything to go by then the courts would likely take a narrow interpretation of gender identity if given the freedom to do so, it’s entirely possible that this could make things worse than they currently are and reduce the potential for complaints at the HRC level

    trying to wring a better result out of existing legislation is a good and sometimes necessary thing, but what you are advocating is the creation of bad statute law, then trying to create case law to clean it up later; that’s a terrible idea for a bunch of reasons but apart from anything else it’s making a promise you can’t keep

    invoking the collins bogeyman is a bit weak too, since her position on what the law should be probably has more in common with yours than with mine; i support inclusion of both gender identity and gender expression as their own prohibited grounds of discrimination (each containing subclauses that explicitly ensure they have a broad scope), and explicit inclusion of intersex people under the existing prohibited ground of sex, a position that is substantially more inclusive than anything proposed by you, judith collins, or louisa wall

    and as for that battlefield business, what you’re basically saying there is “no law degree, no opinion” (curiously this doesn’t seem to apply to louisa though), and while i’ll grant you that at one time i could have studied law, that is no longer a practical option for me, and for a lot of people it never has been and never will be an option; presumably you are aware that law school is a suffocatingly white, straight, middle-to-upper-class place (and it sure isn’t that way by chance), so it’s pretty scummy of you to try to set that as the bar for having an opinion

    i mean there are so many other barriers to being heard as it is, and the way that louisa tried to change the law without any chance for trans people to have a say on what the law should be is a central problem here; now we have you doing the same thing that cis “experts” have been doing to us for decades, trying to gain power over us and silence any dissenting voices, that is not on

    so yeah, i get that the SOP might have helped out a few “respectable” trans people who strongly conform to the gender binary and can afford a lawyer, but those are simply not the people staring down the barrel of the worst oppressions; hell it would have left me and almost every other trans and genderqueer person i know with no voice and dubious protection and there are plenty of people out there who are more vulnerable than most of us

    • No Emily, SOP432 would not have helped out a few “respectable” transpeople who can afford a lawyer. It would have specifically helped in, say, the R v Cooper case where I argued that a jailed client should have her gender identity recognised. She could not afford a lawyer to do the the work that went in to that case. So, no, you’re wrong about this being for privileged people. It’s for those at the bottom of the heap. In the Cooper case that small victory was overshadowed on the same day by the sexual violation of a trans woman in the cells a few metres beneath my feet. If you thought about the look in the eyes of those women in the interview room, if you touched the tips of their fingers through the narrow document slot at the bottom of the perspex window, you would not make such wild and clearly wrong statements. If you empathised with the plight of those women, you would not be trolling the blog of their hard-working, free-of-charge lawyer.

      You don’t need to be a lawyer Emily to be an advocate. I’m not trying to silence you, it seems that you have been silent for a long time with no assistance from me. I’m encouraging you to speak up. Gather the mandate of the communities you speak for and present a cohesive front. Don’t just be an anonymous keyboard warrior. Unite, mobilise and make a difference.

      • those at the bottom of the heap would not have benefited because in addition to their other circumstances, they are unlikely to conform to the gender binary, either at all or to the degree that the inevitable narrow interpretations drawn from classifying “gender identity” under sex would demand

        if your approach is better then you should be able to explain how it protects a sufficiently broad range of people, but you haven’t done a thing to show that it would not protect fewer people than mine would; you haven’t even offered anything beyond unbacked assertions to establish that it would not be worse than the status quo

        instead you’re going with the manipulative option, claiming that having seen the harm caused by abuse (and believe me, you are not alone in that) counts for more than wanting to more broadly prevent that form of abuse by protecting a larger group of vulnerable people

        and seriously, i’m not going to be baited by this “anonymous keyboard warrior” nonsense (if anything, the fact that you don’t know who i am speaks more to the power disparity between us than to any failure of character on my part), i mean you’re trying to start a pissing contest with someone several decades younger than you about who is the better activist/advocate/whatever, and telling us to unite when you do your best to shut down any attempt at action that goes beyond your narrow and unambitious goals

        you really don’t seem to grasp that most of my generation have very little in the way of resources or connections, and individual struggles to acquire and maintain access to housing, income, and healthcare drain a hell of a lot of time and energy; i do the best i can in the (relatively stable) circumstances i am in – i already speak up as loudly as i am able to – but i, like everyone else who would have been left out by louisa’s SOP, lack access to even a fraction of the platform available to you

  12. Kelly apples oranges moment BUT a very big issue for those in the trans community who identify as transsexual. The waiting list for GRS was approx 26 years long, were everyone on the list to be found worthy.
    You know I have argued in the past the govt subsidiaries on excess pills I’d take to remain pre op, over a normal life span is probably more than the one off cost of an operation. They pay for themselves.
    Right now though I find myself in a hospital in Phuket, convalescing from GRS an $18K cost to date, flights included. With complications to the 2nd skin grafts I have been in bed a week longer than hoped…. quite frankly it would have been nice to have convalesced in NZ surrounded by nurses whose English was equal to my own.
    No chance now, loooooong waiting list aside, our one surgeon, E Peter Walker was allowed to retire without training up a replacement.
    What about the ground we’re losing Ms Ellis

    • Simone, gaining cover under the HRA is a great springboard for asserting our human rights. With that statutory recognition of equality, we will be in a better position to assert it in matters such a discriminatory health care.

    • Hope your srs goes well and things work out in a positive way. I am currently recovering from complications from a gender surgery. It is hard, and frustrating and scary! All the best.

  13. My Endo won’t send any of his tg patients for srs at the moment as he considers the surgerys do more harm than good. There are some quite promising new techniques being used which involve tissue engineering to grow a vagina in a lab. (Using growth factors to grow actual vaginal tissue from patients own DNA and cells). Works really well apparently. No yucky smell which can come with bowel inversion and a flexible self cleaning vaginal tissue as opposed to the penile inversion. I would totally like srs though and have been asking for help in this area for 15 years. Never have managed to scrape togeather the 20000. I actually like that the hormones crush my libido cause sex is fucking strange sometimes. I think it is sad that this is the case. I would like to enjoy a healthy vagina and sex life. Hopefully the new techniques will lead to more support from the doctors in NZ. I beleive they do want to do better. More and more things are funded now. Facial feminisation, Orchidectomy, breast removal for f-m’s etc etc (hair removal would be nice cause ain’t that a bitch! :). Things are getting better. So much better than when I started this journey. I think the HRC enquiry a few years ago had a really positive impact.

    In short, as hard as things can be, I feel optimistic about the future of tg support in NZ.

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