Gender regulation: Restrictive, facilitative or transformative laws?

Abstract

In the 21st century, Parliaments and the courts are allowing persons some measure of power and agency over their legal gender. This article traces the 40-year trajectory of transgender litigation. It begins by setting out the three main approaches taken by the courts in Australia, the United States and the United Kingdom in determining gender. It then considers specific Australian legislation on the legal recognition of change to a person’s gender and the scope and operation of protections against transgender discrimination within Australian anti-discrimination laws. The article explores federal and state legislative schemes in the context of the framework of regulating gender established in the common law tradition. This allows consistencies and differences in the legislative regimes to be identified and reveals common issues confronting legislatures and the judiciary in this area.