Draft Introduction to “Australian Democracy, The Politics of Representation, and the Biopolitics of the 2021 Census”

Abstract

When the Australian Bureau of Statistics (ABS) launched their “Every Stat Tells a Story” campaign for the 2021 Census, the non-inclusion of the LGBTIQ+ communities was palpable. Political interference was allegedly involved in the decision to not include gender identity and sexual orientation questions, in spite of the strong case for their inclusion acknowledged by the ABS. The current debate surrounding LGBTIQ+ inclusion in the census can be explained by demonstrating the historically-situated nature of the census in which decisions for inclusion of topics are far from natural and inevitable, but are socially and politically driven. This thesis seeks to answer the question: Is the conceptualization of census data as an alternative form of political representation the best strategy for LGBTIQ+ political advocacy, considering the ongoing systemic discrimination and implicitly heteronormative framing of the census as it stands? The intersection of the state’s information gathering activities and its production of knowledge with gender and sexuality lends itself to the mobilization of critical demography and Foucault’s biopolitics. This thesis engages in a sociolegal methodology, utilizing critical discourse analysis to engage with both primary texts related to the census and census review and public discourse on Twitter, in order to identify issues of LGBTIQ+ exclusion, erasure and invisibility beyond the gender and sexual orientation questions. A key difference between the Australian and UK was the legislative monitoring and reporting duties imposed by the UK’s Equality Act 2010. Collection of information around gender identity and sexual orientation raises issues around privacy and safety. The ongoing struggle with homophobia and transphobia, in particular evident in the recent marriage equality and religious discrimination debates, together with the relatively recent decriminalization and depathologization of LGBTIQ+ identities, further problematizes the collection of LGBTIQ+ information by the state. In light of plans for future advocacy in the review for the next Australian census in 2026, this research is both highly contemporary and of ongoing relevance both for the Australian context and internationally.

Introduction

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“Every stat tells a story – unless you’re LGBTIQA+!”[1] This was how Joe Ball, CEO of Switchboard Victoria in a tweet[2] so poignantly responded to the launching of the Australian Bureau of Statistics (‘ABS’) “Every Stat Tells a Story” Campaign in the leadup to Census Night (10 August 2021).[3] It was apparent that a lot of work (and funding) had been put towards this nation-wide media campaign targeted to encourage universal participation.[4] The campaign in particular focused on rural and remote communities, Aboriginal and Torres Strait Islander communities and culturally and linguistically diverse communities.[5] However, in spite of its apparently inclusive purpose, the lack of attention to the LGBTIQ+ communities was palpable. They expressed the feelings of ongoing exclusion, erasure and invisibility felt by many in the lesbian, gay, bisexual, transgender, intersex and queer (‘LGBTIQ+’) communities in Australia after the 2021 national census.[6] Of course, the handwriting was already on the wall when the ABS announced the removal of the gender identity and sexual orientation questions from the 2019 Census Testing.[7]

The question of how to best collect data related to gender identity, sexual orientation, and variations of sex characteristics (i.e., intersex) has been an ongoing topic, both in Australia and internationally.[8] Conventionally speaking, “sex” is understood to be an assigned binary category based upon the biological configuration of the body, as opposed to “gender” as a socially, culturally and historically contingent category.[9] However, “gender” as a category entered medical and psychiatric discourse only since the 1950s, through the work of John Money and Robert Stoller.[10] Thus, while contemporary feminist and queer theory apparently mobilizes this sex/gender distinction unproblematically, it should be remembered that the origin of this concept and distinction developed within the kinds of medical and psychiatric discourses (in particular, early sexological work which broadly characterized intersexuality and transsexuality/transgender as abnormal and pathological).[11] Legal engagement with the definition of sex and gender has a long history.[12] “Sexual orientation” is understood to refer to a multivariate configuration of sexual identity, sexual attraction and sexual behaviours and practices.[13] While conventionally, sexual orientation has been (apparently unproblematically) categorized according to attraction to so-called same-sex, opposite sex, or both (i.e., homosexual, heterosexual, and bisexual), this isn’t necessarily the only way that it could be conceptualized.[14] A key challenge with attempts to quantify gender identity and sexual orientation in demography is the reductive and fixed nature of statistics, which apparently would fail to capture this element of fluidity.[15] The apparently unproblematic matrix by which sex, gender and desire are assumed to align, together with compulsory heterosexuality which defined Western understandings of family and relationships have been problematized by queer theory.[16]

In addressing the state’s information gathering activity in the census in relation to gender and sexuality, it would be impossible to avoid Michel Foucault’s paradigm of biopolitics,[17] by which he develops theory around the intersection of state power, knowledge and sexuality.[18] However, while Foucault’s theory tends to be read in a state-centred and reductive way.[19] Drawing upon a dialectical reading of Foucault, together with Weber and Bourdieu, Emigh, Riley and Ahmed developed an interactive model of the interaction between state and society which aims to demonstrate the forces at work in information gathering in the census.[20] This model has been further developed by Gunnar Thorvaldsen, with a particular emphasis on the role that international statistical conferences played (and continue to play) in the development of domestic national censuses.[21] I propose to extend Thorvaldsen’s insights into international cooperation’s role in census development to the role that international law and organizations play in the (non)inclusion of LGBTIQ+ communities in census information gathering. Another key theoretical element in this thesis involves the reexamination of the politics of recognition, representation and democracy in order to conceptualize census data as an alternative form of political representation.[22]

This thesis will utilize a combined sociolegal, comparative and legal history methodology. The primary method throughout will be a critical discourse analysis[23] through close reading of various texts, such as primary texts published by the ABS, submissions by key organizations to the census review process, and media releases in response to the outcome of the census review process. In examining the response to the census from the LGBTIQ+ communities, I have utilized a critical analysis of public discourse through Twitter conversations between July-August 2021.[24] This supported the identification of issues regarding LGBTIQ+ communities beyond the sex, gender identity or sexual orientation questions.

This thesis will proceed in four chapters. In the first chapter, I will define the population census at the heart of my inquiry. My argument regarding the nature of the census as a tool of governance which must be historically and politically situated will be grounded in a historical review from the birth of the modern population census in the 17th century, drawing a line of development between the Census in England and Wales, the colonial censuses on the Australian continent, the establishment of the federal census in 1911, through to the 2016 Census. In the second chapter, I will argue that Foucault’s biopolitics and critical demography can shed light upon the historically situated and politically and socially constructed nature of the census. Considering the role that the census plays within Australian democracy, I will argue that the politics of recognition and representation can be mobilized in conceptualizing census data as an alternative form of political representation for the LGBTIQ+ communities. In the third chapter, I will build a case study of the recent census review process and the public discourse surrounding the 2021 Australian census as a demonstration of these same historical, political and social forces at work. Finally, I will address some of the key challenges facing those who would seek to collect information related to the LGBTIQ+ communities, including the complexity of gender identity, sexual orientation and variations of sex characteristics as concepts, protecting people’s privacy and safety, and finally, acknowledging the ongoing struggle and trauma experienced by the queer community.


[1] LGBTIQA+ stands for lesbian, gay, bisexual, intersex, queer, asexual and other gender and sexual minorities. LGBTIQ+ (meaning lesbian, gay, bisexual, transgender, intersex, and queer, with the plus being an inclusive umbrella for other diverse sexualities outside of those specifically listed in the acronym) is the acronym recommended in the Griffith University Guidelines provided in the ‘How to be an LGBTIQ+ Ally at Griffith’ (online) <https://www.griffith.edu.au/__data/assets/pdf_file/0031/1137946/How-to-be-an-LGBTIQ-Ally-at-Griffith_July-2020.pdf>. Thus, I will generally use this acroynym.

[2] @Joe_c_Ball (Joe Ball) (Twitter, 19 July 2021 3:39pm AEST) <https://twitter.com/Joe_c_Ball/status/1416996185676554242/photo/1>.

[3] Australian Bureau of Statistics (4 July 2021) Every stat tells a story in 2021 Census campaign [https://www.abs.gov.au/media-centre/media-releases/every-stat-tells-story-2021-census-campaign], ABS Website, accessed 12 September 2021.

[4] ‘ABS and UM launch one of Australia’s most complex media campaigns’, AdNews (online), (online at 4 August 2021) <https://www.adnews.com.au/news/abs-and-um-launch-one-of-australia-s-most-complex-media-campaigns>.

[5] See Australian Bureau of Statistics, Campaign Overview [https://www.abs.gov.au/census/census-campaign-hub/campaign-overview], ABS Website, accessed on 12 September 2021, together with its subpages.

[6] Eden Gillespie, ‘Trans People Say They Feel “Erased” by This Year’s Census’, The Feed (online) (online at 7 August 2021) <https://www.sbs.com.au/news/the-feed/trans-people-say-they-feel-erased-by-this-year-s-census>; Biwa Kwan, ‘“It’s 2021, people”: Courtney Act backs call for LGBTIQ+ Australians to be counted in Census’, SBS News (online) (online at 9 August 2021) < https://www.sbs.com.au/news/it-s-2021-people-courtney-act-backs-call-for-lgbtiq-australians-to-be-counted-in-census/81275b6e-e0c3-4c4d-944f-7bd11500173d>; Georgie Hewson, ‘Census 2021 leaves LGBTIQA+ community feeling “erased” after questions left out’, ABC News (online) (online at 10 August 2021) <https://www.abc.net.au/news/2021-08-10/lgbtiq-census-erasure/100362094>; ‘Census 2021 Feels Like an Insulting Erasure of Australia’s LGBTQI+ Communities’, The Star Observer (online) (online at 10 August 2021) <https://www.starobserver.com.au/news/census-2021-feels-like-an-insulting-erasure-of-australias-lgbtqicommunities/205062>.

[7] Australian Bureau of Statistics (6 October 2019) ABS Statement on selection of topics for 2019 Census Test and 2021 Census [https://www.abs.gov.au/media-centre/media-statements/abs-statement-selection-topics-2019-census-test-and-2021-census], ABS Website, accessed 12 September 2021.

[8] Economic Commission for Europe, In-depth review of measuring gender identity (9 April 2019) ECE/CES/2019/19 <https://unece.org/DAM/stats/documents/ece/ces/2019/ECE_CES_2019_19-G1910227E.pdf>.

[9] Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1990); Toril Moi, Sex, Gender, and the Body: The Student Edition of What Is a Woman? (Oxford University Press, 2005) 59.

[10] Jennifer Germon, Gender: A Genealogy of an Idea (Palgrave Macmillan, 2009); Jemima Repo, The Biopolitics of Gender (Oxford University Press, 2015).

[11] Ibid.

[12] Corbett v Corbett [1970] 2 All ER 33; R v Harris & McGuiness (1988) 17 NSWLR 158; Re Kevin (2001) 165 FLR 404; AB v Western Australia (2011) 244 CLR 390; NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490.

[13] Sabra L Katz-Wise, ‘Sexual fluidity in young adult women and men: Associations with sexual orientation and sexual identity development’ (2015) 6(2) Psychology and Sexuality 189.

[14] Eve Kosofsky Sedgwick, Epistemology of the Closet (University of California Press, 1990) 8.

[15] J E Sumerau, Lain A B Mathers and Dawne Moon, ‘Foreclosing Fluidity at the Intersection of Gender and Sexual Normativities’ (2020) 43(2) Symbolic Interaction 205.

[16] Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge, 1990); Ruberg, Bonnie and Spencer Ruelos, ‘Data for queer lives: How LGBTQ gender and sexuality identities challenge norms of demographics’ (2020) 7 Big Data & Society 1.

[17] See Michel Foucault, The History of Sexuality, Volume 1: An Introduction, tr Robert Hurley (Pantheon Books, 1978); Michel Foucault, “Society Must Be Defended”: Lectures at the Collège de France, 1975-76, ed Mauro Bertani and Alessandro Fontana, tr David Macey (Picador, 2003); Michel Foucault, Security, Territory, Population: Lectures at the Collège de France, 1977-1978, ed Michel Senellart, tr Graham Burchell (Palgrave Macmillan, 2007); Michel Foucault, The Birth of Biopolitics: Lectures at the Collège de France, 1978-79, ed Michel Senellart, tr Graham Burchell (Palgrave Macmillan, 2008).

[18] Wendy Brown, ‘Power After Foucault’ in Anne Phillips et al (eds), The Oxford Handbook of Political Theory (Oxford University Press, 2006) 65; John Iliopoulos, ‘Foucault’s Notion of Power and Current Psychiatric Practice’ (2012) 19(1) Philosophy, Psychiatry & Psychology 49.

[19] Rebecca Jean Emigh, Dylan Riley and Patricia Ahmed, Antecedents of Censuses from Medieval to Nation States: How Societies and States Count (Palgrave Macmillan, 2016a) 8-9.

[20] Rebecca Jean Emigh, Dylan Riley and Patricia Ahmed, Antecedents of Censuses from Medieval to Nation States: How Societies and States Count (Palgrave Macmillan, 2016); Rebecca Jean Emigh, Dylan Riley and Patricia Ahmed, Changes in Censuses from Imperialist to Welfare States: How Societies and States Count (Palgrave Macmillan, 2016).

[21] Gunnar Thorvaldsen, Censuses and Census Takers: A Global History (Routledge, 2018).

[22] For example, Simon Thompson, The Political Theory of Recognition: A Critical Introduction (Polity, 2006).

[23] Gilbert Weiss and Ruth Wodak (eds), Critical Discourse Analysis (Palgrave Macmillan, 2007); John Flowerdew and John E Richardson (eds), The Routledge Handbook of Critical Discourse Studies (Taylor & Francis, 2017).

[24] Bonnie Stewart, ‘Twitter as Method: Using Twitter as a Tool to Conduct Research’ in Luke Sloan and Anabel Quan-Haase (eds), The SAGE Handbook of Social Media Research (SAGE Publications, 2016) 251.


Recognition of Non-Binary Genders on Birth Certificates: The Case for Gender Abolitionism from Queer & Feminist Perspectives

This is the critical essay based upon my earlier Project Proposal, which you can read here. I achieved 20/20 for my Project Proposal, and this Major Project (my critical essay) achieved 60/60.

Introduction

Considering the important, if not central, place that the law plays in the development and maintenance of social regulation,[1] it is not surprising to see how entrenched the heteronormative/cis-normative conception of sex/gender is within Australian law.[2] This paper will examine the current position in law regarding the recognition of transgender, intersex and other non-binary genders within Australian law,[3] focusing on the ability given to adults to register change from their assigned sex/gender at birth in acknowledgement of their self-identified gender outside the gender binary. This will involve an examination of the historical development of the understanding of sex/gender in UK, Australian and international law, [4] before turning to a close examination of the current Births, Deaths and Marriages Registration (‘BDMR’) laws in Queensland (as an example of the continued persistence of a bio-medical model[5] within Australian law), compared to the more progressive reforms in Tasmania and Victoria (as examples of a move towards a self-identification model of sex/gender).[6]

My critique will involve exploring various aspects of queer and feminist theories that relate to how sex/gender could be conceptualised, the relationship between embodiment and gender, sex as biological fact versus gender as social construct, and of the concept of ‘value-free science’.[7] Applying these various theoretical perspectives, I will critique the relevance of gender in law, and argue for developing towards a genderless society – as envisioned by certain queer and feminist theorists.[8]

Continue reading “Recognition of Non-Binary Genders on Birth Certificates: The Case for Gender Abolitionism from Queer & Feminist Perspectives”

A Critical Examination of the Doctrine of Separate Legal Personality and Piercing/Lifting the Corporate Veil

Introduction

From its inceptions in the late Middle Ages, the incorporation of business activities has remained an area of controversy both in legal scholarship and the political and social sciences. In the early days of the twentieth century, Ambrose Bierce wrote in his Devil’s Dictionary, that a corporation is ‘an ingenious device to obtain profit without individual responsibility.’[1] On many levels, this satirical statement captures the practical realities behind the concept of separate legal personality, limited liability and the veil of incorporation. This essay will examine these doctrines from both traditional theoretical perspectives and critical perspectives, with an emphasis upon the implications for these doctrines to the development of jurisprudence related to corporate groups.[2]

This essay will begin with an introduction to the doctrines of separate legal personality and limited liability, their basis in the general law[3] as well as those relevant sections of the Corporations Act 2001 (Cth) (‘CA’) which affirm them.[4] I will then turn to an examination of the doctrine of the corporate veil, from a traditional theoretical framework in concession[5] and contractarian theories,[6] including a discussion of some of the reasons behind the court’s reluctance to pierce or lift the corporate veil.[7] This will lead into a discussion of the several areas where the courts have decided to pierce or lift the corporate veil in the general law.[8]

Following on from this, I will turn to discuss several critical theories of the corporation – communitarian theories and CSR,[9] feminist critiques of the corporation[10] and Islamic jurisprudence and its relevance to international corporate activities.[11] Thus, I hope to shed light on the potential for recognising theoretical plurality in our understanding of corporate law jurisprudence in Australia.[12]

Continue reading “A Critical Examination of the Doctrine of Separate Legal Personality and Piercing/Lifting the Corporate Veil”

Recognition of Non-Binary Genders on Birth Certificates

Recognition of Non-Binary Genders on Birth Certificates: A Comparison of Biomedical vs Self-Identification Models Underlying State BDMR Laws, with Reference to Feminist & Queer Theories of Sex, Gender and Embodiment

This is the Project Proposal for my current Critical Research Essay for my Gender & The Law Course. I hope my readers appreciate it. I’ll be working on the actual Major Project which will be due in mid-October. Here is the published Major Project (critical essay) which achieved 60/60.

Introduction – Topic Outline

I will be investigating the different models of sex/gender underlying the current differences in legislation regarding change of sex/gender in Queensland[1] compared to more progressive legislation in Victoria[2] and Tasmania.[3] Queensland’s law requires ‘sexual reassignment surgery’,[4] defined as:

A surgical procedure involving the alteration of a person’s reproductive organs carried out – (a) to help the person to be considered to be a member of the opposite sex; or (b) to correct or eliminate ambiguities about the sex of the person.[5]

Births, Deaths and Marriages Registration Act 2003 (Qld), sch 2 (definition of ‘sexual reassignment surgery’).

In contrast, the Victorian and Tasmanian legislation has recently been reformed in 2019 to allow a person to make a declaration of their gender identity based on their own self-identification.[6] Thus, on a spectrum between the traditional gender binary based on the biomedical model and an acknowledgment of gender diversity, based upon an individual’s self-identification of gender identity, Queensland’s law is still closer to the traditional biomedical model, whereas Victoria and Tasmania are much closer to a more progressive self-identification model.

Continue reading “Recognition of Non-Binary Genders on Birth Certificates”