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I don't follow. Here you said that "[t]here’s no discrimination lawsuit in using the actual indicators for a treatment". So, I must ask again, given that there's a specific law calling out gender identity and sex discrimination,
Suppose the doc, a private service provider, proceeds according to the authoritative document and not the measurements, and B happens to die. Is that a successful lawsuit by the estate, according to pure law brain? Suppose the doc proceeds according to the measurements and not the authoritative document, and B happens to live. Is that a successful lawsuit by B?
We have a specific law. It is applied to private service providers. The document is authoritative.
Still no discrimination suit. What service is being withheld on the basis of sex or gender?
Maybe if the patient was demanding a service—a breastless transwoman desperate for a mammogram, or something. I could see that happening. But I’m reasonably confident our medical jurisprudence allows doctors to decline providing frivolous care. It certainly lets insurance opt out.
That’s all pretty far from your hypothetical lifesaving intervention. Did you have one in mind?
The different service that would have been provided to the other sex. At this point, I almost feel compelled to ask whether you think Giggle would have been perfectly legally fine if they had simply put males on the 'male server', talking to other males, and females on the 'female server', talking to other females. Then, in response to a complaint, would you be perfectly happy dismissing it by just observing that there is no service that is being withheld on the basis of sex or gender? Because to draw the line here seems to cut against the entire zeitgeist.
That’s not…look, the different service was never on the table. The patient didn’t request it. The diagnosis didn’t suggest it.
https://www.legislation.gov.au/C2004A02868/latest/text
“Less favourably.” There’s nothing less favourable about giving the medically correct treatment. No discrimination.
The patient was unconscious, so that was never on the table.
It sure was, and it sure did, if the chosen method of identifying sex was reversed.
...we're all the way back to, "What is correct?" Are you saying that the sex listed on the authoritative document is "incorrect"?
My brother in Christ—you chose the method. If the patient can’t demand anything, why does the license?
You keep saying the document is authoritative. I’m saying it’s not, because there isn’t a medical procedure in the world that cares about driver-license-sex, correct or not. So the mere presence of that license doesn’t create an obligation.
My brother in Christ—the entire question of this thread is about the government designation creating a government-enforced legal requirement on third-party service providers to respect the drivers-license-sex. If you'd like to say that the government designation creates no legal requirement for doctors, then it should equally make no legal requirement for this digital app.
Otherwise, you have to make a distinction - from the law - for why it creates a legal requirement for some private service providers and not for others.
I don’t think the license itself never created a legal requirement for anyone. The 1984 SDA did, but only by criminalizing “less favourable” treatment. In social media, that means access to your app. In medicine, though, it means some combination of desired and correct care.
I could imagine why waving your license would get you back into an app. It was harder to figure out how doing so would get you a particular treatment.
I think it’s kind of a moot point, because I misunderstood how the license was actually used in this case.
I think you're resting a lot on this, but the court document only mentions this once, with reference to CEDAW (not SDA), saying that it
They don't really say anything about SDA having some form of "less favorable" test; they talk about "disadvantaging", and they don't really grapple how that would really work WRT a claim of gender identity. What is the set of possible "gender identities" in question? What is the reference class? It's a conceptual mush. I know it's approaching a reductio, but what if someone gender identified as an attack helicopter (substitute less ridiculous, but still nonbinary or whatever), but appeared male, then tried to access Giggle. Indirect gender identity discrimination?
Perhaps @Gillitrut was completely barking up the wrong tree when claiming that the 'authoritative document' had anything to do with it, but we're still left with a different kind of mess... and one that I point out, still leaves yardsticks on the table. You can fit almost anything into "other status".
It also reopens your hypo:
I don't see why, with this ruling, it would be considered frivolous or allow an opt out. Could even have one with implants or just barely large enough 'moobs'. The only way would be to say, "Mammograms are for the female sex," but then we're exactly back in the same position Giggle is. There's no reason to disadvantage MtFs in terms of getting to see imagery of their chest, if that's what they want. We don't actually have a reference class to compare them to, anyway. In order to show that Tickle was disadvantaged in comparison to some other reference class, I'd want to know what that reference class is, and once we know that, then maybe we can check to see if denying MtFs mammograms does/doesn't disadvantage them WRT the same reference class.
If there's anything I've learned from learning about BIID, it's that people can be very very serious about demanding a treatment that others may see as kind of silly or potentially even harmful. Are you going to import some "someone might think it's actually silly/harmful" exemption? Like, if a doctor simply asserts, "I think this would actually be silly/harmful, for whatever reason," then they're okay? Well, sure, Giggle can simply say that they think that someone who looks that much like a man is being silly or actually going to harm themselves, because they're gonna like get made fun of or something. I don't think it's easy at all to surgically (heh) slice out the cases that you personally think are silly/unlikely, because that's a ridiculous ad hoc test where the rule is that every time something comes up, we have to ask you whether it's silly or not.
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I don't think the law let's you draw a distinction between "sex" and "drivers-license-sex". And why would "drivers-license-sex" create an obligation for a SocMed app, but not for medical services?
After further reading of the (summary) opinion, it doesn’t actually create the obligation there, either!
The crux is that sex and license-sex only mismatch when the subject is trans. Therefore, anything that only penalizes such a mismatch is unlawful discrimination.
Yes, you can ban any man or woman for being too masculine, so long as they haven’t specifically disavowed it at the QLD state level. If they have, they’re trans and protected.
Is this goofy? Maybe. Does it make the medical analogies fall apart? Oh yeah.
Giggle was not penalizing the mismatch. A trans man would be welcomed with open arms.
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