This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here. 

In 2018, I wrote about the push to end forced trans divorce, which helped to (finally) deliver marriage equality to trans and gender diverse Australians.

However, ending forced trans divorce was only one small part of the wider battle to ensure trans and gender diverse people can access identity documentation, including birth certificates, that reflects who they are.

A bigger – and arguably more important – challenge is ensuring that people can update their identification without the need for surgery, and without doctors or other medical professionals acting as ‘gate-keepers’ (that is, the inappropriate medicalisation of gender identity).

In practice, I would argue that there are (at least) three principles that should be reflected in the law in this area:

1. Access to amended identity documentation must not depend on surgery or other medical treatments
2. Access to amended identity documentation must not depend on approval by doctors or other medical professionals, and
3. Access to amended identity documentation should be granted on the basis of self-identification, through a statutory declaration.

Unfortunately, as we shall see below, the laws of most states and territories fail to adopt these principles – in some cases, falling short on all three.

NSW

In New South Wales, the Births, Deaths and Marriages Registration Act 1995 provides that, in order to apply to alter the register to record change of sex, a person must first have ‘undergone a sex affirmation procedure’ (section 32B), which is defined in section 32A as:

‘means a surgical procedure involving the alteration of a person’s reproductive organs carried out:

a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or

b) to correct or eliminate ambiguities relating to the sex of the person.’

Section 32C then requires any application to ‘be accompanied by… statutory declarations by 2 doctors, or by 2 medical practitioners registered under the law of any other state, verifying that the person the subject of the application has undergone a sex affirmation procedure.’

In short, NSW law reflects worst practice in this area, and is in urgent need of reform.

Such reform was being considered eight years ago by Independent Member for Sydney Alex Greenwich as part of his discussion paper looking at removing the surgical requirements for changes to birth certificates (see my submission to that consultation process here). He has also prepared amendments on this issue ahead of the March 2023 State Election.

There were also hopeful comments of possible movement in this area during parliamentary debate on the bill that abolished forced trans divorce in NSW, however trans and gender divorce people need more than just indications of possible future co-operation, they need practical action now. Unfortunately, neither the Perrottet Liberal/National Government, nor Minns Labor Opposition have committed to change in this area ahead of the 2023 poll.

Victoria

In August 2019, Victoria moved from having ‘worst practice’ laws in this area, to now having the second-best laws in the country (behind Tasmania, see below). This is because of passage by the Andrews Labor Government, supported by most of the upper house cross-bench, of the Births, Deaths and Marriages Registration Amendment Act 2019 (which was the same Bill that had been rejected by the Liberal and National Parties in the Legislative Council in 2016).

This legislation achieves two-and-a-half of the three objectives identified above:

• It removes the requirement for surgery
• It removes the requirement for other medical approval (at least for adults – it still requires a doctor, health professional or a member of a prescribed class of persons to support an application with respect to a child), and
• It is primarily based on the self-declaration of the applicant.

However, section 30A also requires that, for adults, they must submit a ‘supporting statement’ made by a person who is aged 18 years or over and who has known the applicant for at least 12 months and state that the person making the supporting statement:

• believes that the applicant makes the application to alter the record of the sex of the applicant in good faith; and
• supports the application.

This second requirement in particular (that another person ‘supports the application’) is unnecessary, and was not included in the best practice Tasmanian laws. In my personal view, it should be removed in the future (while other states and territories should be aware of this difference as they pursue their own reforms).

Nevertheless, the Bill enjoyed strong support from Victoria’s trans and gender diverse community, and its passage undoubtedly a huge difference to their lives.

Queensland

Queensland is another jurisdiction that falls short on all three criteria, although there is more cause for optimism that these laws will be changed in the (very near) future.

Currently, section 22 of the Births, Deaths and Marriages Registration Act 2003 provides that ‘the reassignment of a person’s sex after sexual reassignment surgery may be noted in the person’s entry in the register of births’.

Section 23 then includes the ‘the application must be… accompanied by… statutory declarations, by 2 doctors, verifying that the person the subject of the application has undergone sexual reassignment surgery…’

However, when the Queensland Government ended forced trans divorce in early 2018, they indicated they were also actively considering further reforms to identity documentation for trans and gender diverse people. And they supported those statements by undertaking a public consultation process looking at ‘Registering Life Events’ (see my submission to that discussion paper here), which included discussion of removing surgical pre-requisites.

While there was a considerable delay from this public consultation process, the Queensland Government eventually introduced the Births, Deaths and Marriages Registration Bill 2022 late last year. It would mimic the Victorian approach to updating identity documentation, removing medical gate-keepers but inserting a requirement for a person to complete a form indicating they support the trans person’s application. This Bill looks likely to be passed in coming months.

Western Australia

Western Australia’s legislation, the Gender Reassignment Act 2000, is also in need of reform, although in this case the High Court has at least helped to clarify that surgery is not a pre-requisite for access to amended identity documentation.

First, to the text of the legislation itself. Section 14 provides that applications for recognition certificates may be made by a person that ‘has undergone a reassignment procedure’.

Under section 15(b), the Gender Reassignment Board may then issue a certificate if it “is satisfied that the person-

i) believes that his or her true gender is the gender to which the person has been reassigned; and

ii) has adopted the lifestyle and has the gender characteristics of a person of the gender to which the person has been reassigned; and

iii) has received proper counselling in relation to his or her gender identity.”

Importantly, section 3 defines ‘reassignment procedure’ as “a medical or surgical procedure (or a combination of such procedures) to alter the genitals and other gender characteristics of a person, identified by a birth certificate as male or female, so that the person will be identified as a person of the opposite sex and includes, in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child’s gender characteristics.”

In practice, however, the Gender Reassignment Board declined to issue gender reassignment certificates to two trans-men who were undertaking testosterone therapy and had undergone bilateral mastectomies on the basis that they had not also had surgery on their genitals.

These two men successfully challenged this decision in the High Court, which in AB v Western Australia; AH v Western Australia [2011] HCA 42 6 October 2011, clarified that “a surgical procedure to alter the genitals or other gender characteristics is not required of an applicant for a recognition certificate. The definition of ‘reassignment procedure’ refers to a ‘medical or surgical procedure’” [emphasis in original].

Nevertheless, while this decision was welcome, enabling these two men to access updated identity documentation, this decision still does not mean that future access is based on self-identification. As noted by the Court:

“The construction placed upon s 15(1)(b)(ii) and the identification which is its concern, does not mean that a recognition certificate is to be provided based only upon a person’s external appearance, and that person’s belief about his or her gender. Section 14 must be satisfied before a person can apply for a certificate.”

Therefore, there is still a need for the Western Australian Parliament to amend these laws, to remove all requirements for medical or surgical procedures, and to finally allow trans and gender diverse people to determine their own identities.

Positively, many of these best practice principles were reflected in the final report of the Law Reform Commission of Western Australia which was examining the issue of recognition of a person’s sex, change of sex or intersex status (see my submission to that inquiry, here and the final WALRC report here).

As with Queensland, there was a long delay following this public consultation process. However, at the end of 2022, the WA Government finally gave a public commitment to abolish the Gender Recognition Board, and modernise WA’s birth certificate laws. Hopefully they copy the best practice scheme from Tasmania, although at a minimum they should follow the second-best Victorian laws.

South Australia

South Australia’s Births, Deaths and Marriages Registration Act 1996 is one of the relevant laws that currently doesn’t fail on all three criteria – although it still involves unnecessary medicalisation of trans and gender diverse people’s identities.

Section 29L of the Act provides that if ‘the Registrar is satisfied that the applicant has undertaken a sufficient amount of appropriate clinical treatment in relation to their sex or gender identity, the Registrar may make an entry about the change of the person’s sex or gender identity in the Register…’

Section 29H clarifies that ‘clinical treatment need not involve invasive medical treatment (and may include or be constituted by counselling).’

Although the Act still requires that ‘clinical treatment constituted by counselling only cannot be regarded as a sufficient amount of appropriate clinical treatment unless the period of the counselling is equal to or greater than the prescribed period.’

 

Regulation 7C of the Births, Deaths and Marriages Regulations 2011 states that ‘the prescribed period may be comprised of:

a) at least 3 separate counselling sessions aggregating 135 minutes; or

b) counselling sessions occurring over a period of at least 6 months.’

And section 29K provides that an application to change sex or gender ‘must be accompanied by… a statement by a medical practitioner or psychologist certifying that the person has undertaken a sufficient amount of appropriate clinical treatment in relation to the person’s sex or gender identity (including in the case of a person whose sex or gender identity has now become determinate)…’

So, even though South Australia has abolished the requirement for surgery in order to have a change of sex recorded, it still places undue emphasis on clinical treatment, and elevates doctors and/or psychologists to the place of ‘gate-keepers’ for trans and gender diverse people accessing identity documents. It should be replaced by a self-identification scheme, based on statutory declarations – nothing more and nothing less.

Tasmania

Tasmania has – at least in the past two decades – led the way on LGBT law reform within Australia. And, following the passage of the Justice Related Legislation (Marriage Amendment) Act 2019, it now does so again on access to birth certificates and other identity documentation for trans and gender diverse Tasmanians.

As a result, the Births, Deaths and Marriages Registration Act 1999 now allows trans and gender diverse people, including people 16 years and over, to self-determine their own gender identity, without the need for surgery, without the need for medical approval and based solely on self declaration (there is also a process for children younger than 16 to have their gender identity recognised, with support from parents or guardians).

This legislation, which took effect on 5 September 2019, is now the standard that other jurisdictions need to adopt.

ACT

The Australian Capital Territory adopts a similar approach to South Australia on this issue.

Section 24 of the Births, Deaths and Marriages Registration Act 1997 provides that a person applying to have the register amended to reflect a change of sex must have ‘received appropriate clinical treatment for alteration of the person’s sex.’ This term does not appear to be defined, meaning it does not explicitly require surgical intervention.

However, just like South Australia, the role of doctors and medical professionals as ‘gate-keepers’ is confirmed by section 25, which requires that any application ‘must be accompanied by a statement by a doctor, or a psychologist, certifying that the person has received appropriate clinical treatment for alteration of the person’s sex…’

Therefore, while the ACT has the equal-third best current regime of any state or territory, it must still be amended to remove the requirement for ‘appropriate clinical treatment’ – as interpreted and approved by a medical professional – and allow trans and gender diverse people to determine their own gender identity.

NT

The Northern Territory has also recently amendment their Births, Deaths and Marriages Registration Act to make some improvements in that jurisdiction, although it still falls short of best practice.

On the positive side, it has abolished the requirement to have surgery in order to access accurate identity documentation.

However, the new section 28B of the Act still requires trans and gender diverse people to show that they have ‘received appropriate clinical treatment in relation to the adult’s sex or gender’ (although, positively, there is no such requirement for intersex people).

Section 28C then clarifies that an application for updated identity documentation must be accompanied by ‘a statement by a medical practitioner or a psychologist certifying that the adult has received appropriate clinical treatment in relation to the adult’s sex or gender’ (similar processes apply for children).

In effect, doctors or psychologists remain gate-keepers, standing in the way of trans and gender diverse people obtaining accurate identity documentation, including birth certificates. So, will the recent changes are a step forward, there is still a long way to go for trans law reform in the Northern Territory.

[NB For a quick summary of birth certificate legislation, including relevant fees and charges and whether X marker options are available, see Liz Duck-Chong’s website.]

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Trans and gender diverse Australians are exactly that: diverse. Not all will seek medical treatment as part of transition, and only some will undertake surgical interventions (while some others may wish to, but are currently prevented due to the exorbitant costs involved and a lack of Commonwealth Government financial support).

But their gender identities should be recognised irrespective of whether they had surgery, and irrespective of the type of other medical interventions they have received (if any). The law should be changed to reflect identity, not surgery. And trans and gender diverse Australians must be in control of that identity, not doctors or other medical professionals.

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