Genderless (Notices of Intended) Marriage

The Commonwealth Attorney-General’s Department is currently consulting about the Notice of Intended Marriage form. Submissions close today, 28 October 2018 (for more information, click here). Here’s mine:

**********

Commonwealth Attorney-General’s Department

via marriagecelebrantssection@ag.gov.au

 

Sunday 28 October 2018

 

To whom it may concern

 

Notice of Intended Marriage Consultation

 

Thank you for the opportunity to provide a submission to this consultation.

 

My comments relate to only one section of the revised Notice of Intended Marriage form, and that is:

 

  1. Gender (optional) Male, Female or Non-Binary.

 

This is required to be completed for both parties to an intended marriage.

 

The inclusion of this question is entirely unnecessary and it should be removed.

 

It is unnecessary because, following the Marriage Amendment (Definition and Religious Freedoms) Act 2017, there is generally no gender (or sex) based restriction on whether couples are able to lawfully marry.

 

This status will be reinforced on December 9 this year when, for those states and territories that have yet to abolish forced trans divorce, the exception provided by the Commonwealth Sex Discrimination Act 1984 to permit this unjustifiable discrimination will expire.

 

This question is also unnecessary to establish identity, which is proved by name, date and place of birth and the requirement to supply identity documentation on the subsequent page of the form. Logically, it is clearly unnecessary to prove identity it if answering is optional.

 

It should be removed because of the growing recognition of, and respect for, the full diversity of the Australian community, particularly in terms of sex, sex characteristics and gender identity.

 

As a cisgender gay man and LGBTI advocate I acknowledge the advice of trans, gender diverse and intersex individuals and organisations that, in order to be fully inclusive of their diversity, requests for information about sex and/or gender should only be included if they can be shown to serve a valid purpose.[i]

 

I can see no such purpose in this instance.

 

Recommendation 1: Question 3 of the Notice of Intended Marriage form should be removed.

 

If the above recommendation is not agreed, then it is my strong view this question should remain optional.

 

Further, given the question serves no valid purpose (in terms of determining whether a person is eligible to marry, or in verifying their legal identity) I suggest that the current three options of Male, Female and Non-Binary be removed. Instead it should simply state:

 

Gender (optional), please specify

 

This should be a write-in box, and have no other prompts for information. Amending the question in this way would allow people to enter their own gender identity, including those who may not identify with any of Male, Female, or Non-Binary.

 

Recommendation 2: If question 3 is retained, it must continue to be optional, and should ask for Gender, please specify, followed by a write-in box.

 

With the passage of last year’s amendments to the Marriage Act 1961, and the imminent abolition of forced trans divorce, marriage in Australia will shortly be available to all couples, irrespective of sex, sex characteristics, sexual orientation and gender identity.

 

That is what 61.6% of Australians said yes to (in the Liberal-National Government’s unnecessary, wasteful, divisive and harmful postal survey).

 

This equality-of-access should be reflected in the Notice of Intended Marriage form, by removing the optional question that asks for the gender of the participants, because it is no longer relevant in 2018.

 

Please do not hesitate to contact me at the details provided should you require additional information.

 

Sincerely

Alastair Lawrie

 

images-1

 

Footnotes:

[i] See for example article 8 of the 2017 Darlington Statement of intersex advocates from Australia and Aoteoroa/New Zealand, which includes:

“Undue emphasis on how to classify intersex people rather than how we are treated is also a form of structural violence. The larger goal is not to seek new classifications, but to end legal classification systems and the hierarchies that lie behind them. Therefore:

  1. a) As with race or religion, sex/gender should not be a legal category on birth certificates or identification documents for anybody” (emphasis in original).
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Submission to WA Law Reform Commission Inquiry into Recognition of a Person’s Sex, Change of Sex or Intersex Status

The following is my personal submission to the Law Reform Commission of WA’s Review of Western Australian legislation in relation to the recognition of a person’s sex, change of sex or intersex status. For more information on this inquiry, click here.

**********

Law Reform Commission of Western Australia

Level 23, David Malcolm Justice Centre

28 Barrack St

Perth WA 6000

lrcwa@justice.wa.gov.au

 

Friday 19 October 2018

 

To whom it may concern

 

Submission in relation to recognition of a person’s sex, change of sex or intersex status

 

Thank you for the opportunity to provide a submission to this important inquiry.

 

As noted in the Discussion Paper, Western Australia’s current legislation in relation to recognition of a person’s sex, change of sex (or gender) or intersex status is inadequate and out-dated, with negative consequences for trans, gender diverse and intersex individuals.

 

The model for reform proposed by the Commission would address a number of these short-comings, although I believe there could be further improvements as discussed below.

 

I write this submission as a cisgender gay member of the LGBTI community, and as an ally of the intersex, trans and gender diverse communities. Where there may be inconsistencies between this submission and the positions supported by those communities, I defer to their views.

 

Question 1. Will the Commission’s proposed model cause any difficulties if implemented?

 

I believe the Commission’s proposed model will remove some of the regulatory barriers currently experienced by trans and gender diverse people in having their gender identities recognised in Western Australia.

 

The removal of sex from birth certificates will also have particular benefits for people born with variations in sex characteristics, reducing pressure for involuntary and unnecessary medical treatments and/or surgeries to be performed.

 

However, as indicated above, I believe there could nevertheless be some improvements made to the model to ensure it better addresses the needs of these diverse communities.

 

Question 2. Is the ‘indeterminate’ category sufficient or should additional categories be added to the forms that are used for the First Report and the Second Report, which will then be used to record the sex of the child?

 

In principle, I do not object to the recording of ‘indeterminate’ sex in the First or Second Reports, provided other aspects of the model – and especially the removal of sex from birth certificates – are also implemented. This appears to ensure statistical data is collected while also reducing the stigmatisation of children born with intersex variations.

 

However, if the collection of ‘indeterminate’ sex is to continue through this process, it would be useful for the WA Government to indicate the numbers of births that have been recorded using this category – and also to actively monitor the number of children with intersex variations who undergo medical interventions to modify their sex characteristics each year (in an effort to reduce and ultimately eliminate human rights abuses in this area).

 

Question 3. Should sex classification be mandatory on birth certificates?

 

No.

 

I can see no proper purpose for recording sex classification in this way. In contrast, there are multiple benefits to be gained by removing this category from this form.

 

For trans and gender diverse people, and especially trans and gender diverse young people, it means they will be able to determine their own gender identity (which is much more relevant) when they are ready – and have that identity reflected in official documentation more easily (under other parts of the model),

 

For people born with variations of sex characteristics, it will help to reduce pressures for involuntary and unnecessary treatments and/or surgeries to alter their sex characteristics to conform to medical, parental and/or societal expectations.

 

The removal of sex and gender from birth certificates has also been called for in the March 2017 Darlington Statement of Australian and New Zealand intersex advocates and as part of the Yogyakarta Principles plus 10.

 

Question 4. Should alternative markers be available, such as ‘other/indeterminate’ or ‘not specified’, if sex classification is required on birth certificates?

 

I would defer to the views of intersex, trans and gender diverse organisations on this issue.

 

However, for the reasons outlined above, I would strongly urge the Commission – and the Western Australian Parliament – to ensure that sex classification be removed, avoiding the potential for adverse consequences in this area.

 

Question 5. Are there circumstances in which it will be necessary or desirable to prove sex through a birth certificate, where proof of gender by a Gender Identity Certificate or proof of sex by medical documentation is not appropriate or sufficient?

 

No. I can think of no circumstances in which proof of sex through birth certificate would be necessary, or preferable instead of proof of gender by Gender Identity Certificate.

 

Question 6. If yes for the above, would certification by the Registrar alleviate this issue?

 

Not applicable.

 

Other comments on the proposed model

 

There are other aspects of the Commission’s proposed model that are welcome, including the recommended abolition of the Gender Reassignment Board (with the simplified functions under the model performed by the Registrar instead).

 

I also welcome the proposed ability of minors to apply for a Gender Identity Certificate from the age of 12, with parental consent.

 

However, I question the age at which parental consent should no longer be required. Rather than the age of 18, which appears to be the position of the Discussion Paper, I believe consideration should be given to adopting an age of 16, as recommended by the February 2016 options paper from the Tasmanian Anti-Discrimination Commissioner.

 

In terms of which categories should be available on Gender Identity Certificates, I suggest that all of Male, Female, Non-Binary and Other (Please Specify) should be options, to recognise the complexity of gender identity, and that simply adding ‘non-binary’ may not accurately capture all of the possible identities of trans and gender diverse people.

 

However, as expressed earlier in the submission, if the consensus view of trans organisations and individuals is that Male, Female and Non-Binary are sufficient, I defer to those views.

 

On the issue of time limits, I do not agree with the proposal to make any change of gender identity beyond the third occasion subject to approval by an appropriate court or tribunal. I can see no reason why, if change of name is allowed annually, that application for change of gender identity should not also be allowed every 12 months (while noting that it is highly unlikely people will actually apply more than two or three times).

 

I also believe there may be some circumstances in which, even within a particular 12 month timeframe, there may be reasons to allow a person to apply to an appropriate court or tribunal for a change of gender identity to be revised (where, for example, a person is distressed following the issuing of a new gender identity certificate and making them wait to amend it has the potential to cause additional psychological distress).

 

An additional concern I have about the model is the comment on page 70 that “The Registrar may also request further evidence if required to prove the application [for a Gender Identity Certificate] is not sought for an improper or fraudulent purpose.”

 

This power seems to undermine the overall intention for the model to reflect self-identification as far as possible. There is also already a penalty for providing a false statutory declaration, making the necessity of such a power debatable.

 

In this situation, I suggest consideration of either removing this power entirely, or for ensuring additional safeguards on its exercise, to ensure it is only used sparingly, and in exceptional circumstances (rather than reintroducing onerous requirements for individuals to supply medical and other evidence through these administrative arrangements).

 

In addition, any decision by a Registrar to reject an application for a new Gender Identity Certificate (that is different to a previous certificate) on these grounds must be easily appealable, at low or no cost to the individual.

 

Finally, in relation to determining the appropriate place to hear appeals (both in relation to this issue, and also on other questions, such as applications for Gender Identity Certificates for minors where parents disagree, or where a person seeks a change in certificate prior to the expiry of any relevant time limits), I express reservations about the suggestion on page 75 that:

 

“The Commission considers the Family Court to be an appropriate decision-maker where the application is contested by one or more parent(s)/guardian(s), given the Family Court’s jurisdiction for approving medical procedures for intersex and trans and gender diverse minors in circumstances where a child is unable to give informed consent or where there is a disagreement between the parents or guardians about the medical procedure.”

 

Based on some harmful decisions in relation to intersex minors and involuntary medical treatments and/or surgeries by the Family Court of Australia, the Western Australian Family Court may not be seen as being best-placed to adopt the role of decision-maker under the Commission’s proposed model. I therefore suggest consideration be given to adopting a different decision-maker, including the possibility of a specialist tribunal within Western Australia.

 

Other issues

 

I welcome the comments by the Commission, on page 77, that:

 

“The [Equal Opportunity Act 1984] does not provide protections for intersex people, on the basis of their sex characteristics or intersex status, nor does it provide protections for people on the basis of their gender identity. The Commission considers a detailed review of the EO Act would be beneficial.”

 

However, while I support the view that this inadequate and out-dated legislation should be reviewed, I do not believe this should delay amendments to the protected attributes covered under the Act to ensure all members of the LGBTI community in Western Australia are protected against discrimination, as quickly as possible.

 

This could be achieved by adding the protected attribute of ‘gender identity’, potentially based on the definition used in the CommonwealthSex Discrimination Act 1984(with final wording agreed following consultation with the WA trans and gender diverse community).

 

However, I disagree with the Commission that consideration should be given to introducing a protected attribute of ‘intersex status’, again potentially based on the Sex Discrimination Actdefinition.

 

While that approach would ensure greater consistency between WA and Commonwealth law, it is not best practice. Instead, I support the introduction of a protected attribute of ‘sex characteristics’, as called for by Intersex Human Rights Australia, and in the Darlington Statement, potentially using the definition included in the Yogyakarta Principles plus 10:

 

‘each person’s physical features relating to sex, including genitalia and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’

 

Finally, I note that any consultation that addresses the issue of legal recognition of people with intersex variations will inevitably raise the issue of harmful, involuntary and unnecessary medical surgeries and/or treatments of children born with variations in sex characteristics.

 

The Discussion Paper indeed touches on this issue, including noting on page 28 that “The Commission understands that the current medical preference is to monitor, rather than intervene, for as long as is medically viable.”

 

My own understanding, based on views expressed by intersex organisations, is that this position may not be entirely accurate. I therefore call on the Commission to further investigate this issue, in consultation with intersex organisations.

 

Ultimately, I would like to see Principle 32 of the Yogyakarta Principles plus 10 reflected in the lived experience of all intersex people in Australia:

 

‘Everyone has the right to bodily integrity, autonomy and self-determination irrespective of sexual orientation, gender identity, gender expression or sex characteristics. Everyone has the right to be free from torture and cruel, inhuman and degrading treatment or punishment on the basis of sexual orientation, gender identity, gender expression and sex characteristics. No one shall be subjected to invasive or irreversible medical procedures that modify sex characteristics without their free, prior and informed consent, unless medically necessary to avoid serious, urgent and irreparable harm to the concerned person’ (emphasis added).

 

Please do not hesitate to contact me at the details provided below should you wish to clarify any of the above, or for further information.

 

Sincerely

Alastair Lawrie

 

Identity, not Surgery

[NB This article is the fourth in a series looking at the unfinished business of LGBTI equality in Australia.]

 

Last month, I wrote about the push to end forced trans divorce, which will help to finally deliver marriage equality to trans and gender diverse Australians.

 

However, ending forced trans divorce is 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 most 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 three 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).

 

There were also hopeful comments of possible movement in this area during parliamentary debate on the recent 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.

 

Victoria

 

Victoria is another jurisdiction with ‘worst practice’ laws in this area. The Births, Deaths and Marriages Registration Act 1996 requires that, in order to apply to alter sex on the register, the person must have ‘undergone sex affirmation surgery’ (section 30A).

 

This application ‘must include statutory declarations, verifying that the applicant has undergone sex affirmation surgery, by:

a) 2 doctors; or

b) 2 medical practitioners registered under the law of the place where the sex affirmation surgery was performed – who performed the surgery or provided other medical treatment to the applicant in connection with the applicant’s transsexualism.’

 

To its credit, the Victorian Andrews Labor Government attempted to amend these requirements in 2016, although those changes were thwarted by the Liberal and National Parties in the upper house. Hopefully, if the Andrews Government is re-elected in November 2018, they will be more successful on this issue next term.

 

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 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 earlier this year, 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.

 

Hopefully they follow through on their commitments in this area – and if they don’t, it’s up to the community to put pressure on them to do so.

 

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.

 

South Australia

 

South Australia’s Births, Deaths and Marriages Registration Act 1996 is one of the few relevant laws that 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 thankfully 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 best practice LGBTI legislation in a range of areas, including anti-discrimination laws – but sadly identity documentation is not one of them.

 

Section 28A of the Births, Deaths and Marriages Registration Act 1999 provides that application to register change of sex requires that the person ‘has undergone sexual reassignment surgery.’

 

This must ‘be accompanied by a statutory declaration from each of 2 medical practitioners verifying that the person who is the subject of the application has undergone sexual reassignment surgery…’

 

In recent weeks, Tasmanian trans and gender diverse campaigners, under the banner Transforming Tasmania, have initiated a push to achieve a range of reforms to identity documentation laws, calling for better access to birth certificates much more broadly than just ending forced trans divorce.

 

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-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 Births, Deaths and Marriages Registration Act incorporates the worst elements of laws in other jurisdictions.

 

Section 28B limits applications to change the register to people who have ‘undergone sexual reassignment surgery’. This is defined under section 28A as ‘a surgical procedure involving the alteration of a person’s reproductive organs carried out to assist a person to be considered a member of the opposite sex…’

 

Section 28C then provides that the application must ‘be accompanied by the prescribed evidence, if any, that verifies that the adult… the subject of the certificate has undergone sexual reassignment surgery.’

 

Regulation 4A of the Births, Deaths and Marriages Regulations then provides that this evidence must include ‘2 statutory declarations, each by a medical practitioner who is entitled to practise medicine within the Commonwealth, declaring that the adult… has undergone sexual reassignment surgery and has changed sex.’

 

Once again, the Northern Territory needs to amend its laws to ensure that trans and gender diverse people can apply to have their gender identity recognised without the need for surgery beforehand, and without the need for a doctor’s sign-off.

 

**********

 

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.

 

28256

Ending Forced Trans Divorce: Mission Half Accomplished

[NB This article is the second in a series looking at the ‘unfinished business’ of LGBTI equality in Australia]

 

This weekend marks six months since the passage of legislation that finally allowed lesbian, gay, bisexual, transgender and intersex people the right to marry under Australian law.

 

Well, most LGBTI people. Because it did not immediately overrule the laws of some Australian states and territories that prevent people who are married from changing their identity documentation to reflect their gender identity. In effect, making some trans and gender diverse people choose between the recognition of their relationship, and recognition of who they are.

 

Instead, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 gave states and territories 12 months in which to update relevant legislation to provide married people with the same opportunity to update their birth certificates as unmarried people.

 

At the end of this 12-month period, the existing exemption under sub-section 40(5) the Sex Discrimination Act 1984 will be repealed:

 

Nothing in Division 2 renders it unlawful to refuse to make, issue or alter an official record of a person’s sex if a law of a State or Territory requires the refusal because the person is married.

 

So, half way to this deadline, how have the states and territories responded?

 

First, there are two jurisdictions that had already abolished forced trans divorce prior to the passage of the Marriage Amendment (Definition and Religious Freedoms) Act:

 

The Australian Capital Territory, where section 24(1) of the Births, Deaths and Marriages Registration Act 1997 does not make any distinction on the basis of whether a person is married or unmarried, and

 

South Australia, where sub-section 29I(3) of the Births, Deaths and Marriages Registration Act 1996 explicitly states that an application to change sex or gender identity ‘may be made under this section even if the person is married.’

 

There are two other states that have passed legislation in the past six months to repeal forced trans divorce:

 

Victoria, where Parliament approved the Justice Legislation Amendment (Access to Justice) Act 2018 on 22 May. Among other things, this law repealed the requirement in section 30A of the Births, Deaths and Marriages Registration Act 1996 that a person be unmarried in order to apply to alter their details on the register, and

 

New South Wales, which only last week passed the Miscellaneous Amendment (Marriages) Act 2018. Similar to the Victorian Act, this legislation removes the requirement in sub-section 32B(1)(c) of the Births, Deaths and Marriages Registration Act 1995 that a person be unmarried in order to apply to alter the register to record change of sex.

 

Which means that, half way to the December 2018 deadline, half of Australian jurisdictions have ended forced trans divorce. Mission half accomplished.

 

Of the other jurisdictions, only one has shown movement to abolish this out-dated and unjust law so far:

 

The Queensland Government has introduced the Births, Deaths and Marriages Amendment Bill 2018 into Parliament, which would remove the requirement in section 22 of the Births, Deaths and Marriages Registration Act 2003 that a person be unmarried for their sexual reassignment to be noted on the register. It has already been the subject of a Parliamentary inquiry, and will hopefully be passed shortly. [NB This legislation was passed on Wednesday 13 June 2018, ending forced trans divorce in Queensland.]

 

Which leaves three jurisdictions that still need to start the process of ending forced trans divorce:

 

Western Australia, where sub-section 15(3) and section 18 of the Gender Reassignment Act 2000 mean a person cannot access a recognition certificate, and therefore new birth certificate, if they are married.

 

Tasmania, where sub-section 28A(1)(c) of the Births, Deaths and Marriages Registration Act 1999 excludes married people from applying to register a change of sex, and

 

The Northern Territory, where sub-section 28B(1)(c) of the Births, Deaths and Marriages Registration Act has the same effect.

 

This post will be progressively updated to reflect (hopefully) developments in Western Australia, Tasmania and the Northern Territory.

 

The good news is that, even if those jurisdictions fail to take action, the Commonwealth Sex Discrimination Act will eventually overrule these provisions, thereby allowing trans and gender diverse people who are already married to apply to update their identity documentation.

 

However, it will be much simpler if these jurisdictions take pro-active steps to update their laws before then. It is also a symbolically important step, so that provisions that have had such a negative impact on trans and gender diverse Australians for so long are wiped from the statute books entirely.

 

28256

Unfairness in the Fair Work Act

This article is the first in a planned series looking at some of the outstanding issues that must be addressed in order to achieve genuine equality for lesbian, gay, bisexual, transgender and intersex (LGBTI) people in Australia.

 

These posts are not proposed in any order of priority, but will hopefully cover many of the barriers that remain, both big and small, as well as challenges that affect often-marginalised groups within the LGBTI community.

 

The first item of ‘unfinished business’ that I have chosen to write about is the discrimination that remains in the Commonwealth Fair Work Act 2009.

 

This unfairness includes two distinct issues, one relatively well-known (and which exists in other legislation, such as the Commonwealth Sex Discrimination Act 1984), the other much less so.

 

Starting with the sometimes-overlooked problem first: did you know that the Fair Work Act 2009 does not protect trans, gender diverse and intersex people against workplace discrimination?

 

While this legislation prohibits adverse treatment on the basis of sexual orientation – thereby protecting lesbians, gay men and bisexuals (at least to some extent: see the discussion below) – it does not include equivalent protections for trans, gender diverse and intersex people.

 

For example, sub-section 351(1) provides that ‘An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

 

Note that this list excludes both gender identity (which would cover trans and gender diverse people) and intersex status (the term used in the Sex Discrimination Act 1984 to protect intersex people, although the intersex community has since advocated for this to be updated to ‘sex characteristics’; see the Darlington Statement).

 

The same list of attributes, with the same exclusions, is found in sub-section 772(1)(f) which protects employees against unlawful termination.

 

In short, the Fair Work Act 2009 (Cth) does not protect trans, gender diverse and intersex Australians from mistreatment or unfair dismissal based on who they are. This is either a gross oversight, or a deliberate choice to treat transphobic and intersexphobic workplace discrimination less seriously than other forms of mistreatment.

 

Nor are these the only sections of the Fair Work Act to omit trans, gender diverse and intersex people:

 

  • Section 153 provides that discriminatory terms must not be included in modern awards. The list of relevant attributes includes sexual orientation, but excludes gender identity and sex characteristics;
  • Section 195 includes a similar prohibition on discriminatory terms in enterprise agreements, and once again omits trans, gender diverse and intersex people; and
  • Sub-section 578(c) provides that the Fair Work Commission must perform its functions taking into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

 

There is literally no requirement in the Act for the Fair Work Commission to help prevent or eliminate transphobic and intersexphobic workplace discrimination.

 

There can be no justification for these omissions. Nor can there be any excuse for the Government, or Parliament more broadly, not to pass urgent amendments to ensure trans, gender diverse and intersex Australians are finally included in the Commonwealth Fair Work Act 2009.

 

Here are my letters to the Prime Minister, and the Minister for Jobs and Innovation, asking them to do exactly that:

 

**********

 

The Hon Malcolm Turnbull MP

Prime Minister of Australia

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

 

27 May 2018

 

Dear Prime Minister

 

Please include trans, gender diverse and intersex people in the Fair Work Act

 

On 15 November last year, in your press conference following the announcement of the 61.6% Yes vote in the same-sex marriage postal survey, you said that: ‘we are a fair nation. There is nothing more Australian than a fair go. There is nothing more Australian than equality and mutual respect.’

 

A little later in that same press conference you added: ‘we are a nation of a fair go and mutual respect and we treat people equally. We don’t discriminate against people because of their gender of their sexual orientation, their religion or race or the colour of their skin.’

 

Unfortunately, trans, gender diverse and intersex Australians are still a long way from receiving a ‘fair go’, and that includes being treated unfairly within the Commonwealth Fair Work Act 2009.

 

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

 

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

 

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

 

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

 

I am writing to ask that you, and your Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

 

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

 

If you fail to do so, you will be continuing to deny a ‘fair go’ to trans, gender diverse and intersex Australians, and your words of 15 November last year will ring hollow.

 

Sincerely,

Alastair Lawrie

 

 

**********

 

Senator the Hon Michaelia Cash

Minister for Jobs and Innovation

PO Box 6100

Senate

Parliament House

Canberra ACT 2600

via minister.cash@jobs.gov.au

 

27 May 2018

 

Dear Minister Cash

 

Please include trans, gender diverse and intersex people in the Fair Work Act

 

I am writing to you about the Commonwealth Fair Work Act 2009, which you administer, and specifically its failure to adequately protect trans, gender diverse and intersex employees against workplace discrimination.

 

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

 

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

 

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

 

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

 

I am writing to ask that you, and the Liberal-National Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

 

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

 

If you fail to do so, you will be failing to ensure trans, gender diverse and intersex Australians receive a ‘fair go’ in their jobs.

 

Sincerely,

Alastair Lawrie

 

**********

 

The second, much better-known, issue of unfairness in the Fair Work Act 2009 is its inclusion of extensive ‘religious exceptions’. These are loopholes that allow religious organisations to discriminate against employees on the basis of their sexual orientation (and would likely allow discrimination on the basis of gender identity were it to be included as a protected attribute in the Act in future).

 

The Fair Work Act entrenches these loopholes in two ways.

 

First, the prohibition on adverse treatment in section 351 (described above) does not apply to any action that is ‘not unlawful under any anti-discrimination law in force in the place where the action is taken’ (sub-section (2)(a)).

 

This means that the Fair Work Act reinforces the religious exceptions that already exist in the Commonwealth Sex Discrimination Act 1984, and its state and territory equivalents (other than the Tasmanian Anti-Discrimination Act 1998),[i] which permit anti-LGBT discrimination.

 

However, the Fair Work Act then includes its own ‘religious exceptions’ in sub-section 351(2)(c), allowing adverse treatment ‘if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.’

 

In effect, the Act provides two different avenues for religious organisations to justify mistreating employees simply because of their sexual orientation.

 

The protection against unfair dismissal in section 772 also includes its own ‘religious exception’, while even the terms of modern awards (section 153) and enterprise agreements (section 195) are allowed to be explicitly discriminatory on the basis of sexual orientation where it relates to employment by a religious institution.

 

There is, however, one important difference between the religious exceptions in this Act and those that are contained in the Sex Discrimination Act 1984: the Fair Work Act religious exceptions technically apply across all protected attributes.

 

This means that, theoretically at least, a religious organisation could claim its beliefs required it to discriminate on the basis of race, or even physical or mental disability – and that it would therefore be protected from any adverse consequences under the Act.

 

Of course, in practice we all know that religious exceptions are most likely to be used to justify discrimination against women (including unmarried and/or pregnant women) and LGBT people.

 

Unfortunately, the Ruddock Religious Freedom Review recently handed to Prime Minister Malcolm Turnbull (although not yet publicly released) is likely to recommend that these loopholes are expanded, rather than drastically reduced. That is a subject I am sure I will be writing about further in coming months.

 

Nevertheless, in the meantime we should continue to highlight the injustice of religious exceptions, including those found in the Fair Work Act and elsewhere, and campaign for their removal.

 

One such campaign, called ‘Change the Rules on Workplace Discrimination’, is currently being run by the Victorian Gay & Lesbian Rights Lobby. I encourage you to sign their petition, here.

 

Ultimately, we need to collectively work towards a Fair Work Act that covers all parts of the LGBTI community – and that doesn’t feature extensive ‘religious exceptions’ allowing discrimination against us.

 

**********

 

Update 24 October 2018:

 

Earlier this year, the (then) Minister for Small and Family Business, the Workplace and Deregulation, the Hon Craig Laundy MP, replied to my letter. As you can see below, it is an extremely disappointing response.

 

He, and the Liberal-National Government, either don’t understand that the Fair Work Act excludes trans, gender diverse and intersex Australians (leaving them at a disadvantage compared to other groups, including lesbian, gay and bisexual people). Or they simply don’t care. I think we all know which is the likelier explanation.

 

This issue has taken on added importance in the context of the current debate around the Ruddock Review, and removing religious exceptions that allow discrimination against LGBT students and teachers.

 

That is because, even if those exceptions are repealed (from both the Sex Discrimination Act and the Fair Work Act), if the protected attributes of gender identity and sex characteristics/intersex status are not also added to the Fair Work Act, there will still be a two-tiered system for LGBTI teachers.

 

In short, lesbian, gay and bisexual teachers will be able to complain to both the Fair Work Ombudsman and the Australian Human Rights Commission, while trans, gender diverse and intersex teachers will only be able to complain to the latter.

 

Unfortunately, the otherwise positive Discrimination Free Schools Bill 2018 from the Australian Greens makes this fundamental mistake. We are also still waiting to see whether the now Morrison Government will introduce any reforms in this area at all, as well as what a Shorten Labor Opposition Bill (or amendments) might look like.

 

But, irrespective of whose Bill it is, and whatever other amendments it contains, if it doesn’t add gender identity and sex characteristics/intersex status to the Fair Work Act, it will be incomplete.

 

**********

 

16 July 2018

 

Dear Alastair

 

Thank you for your email of 27 May 2018 to Senator the Hon Michaelia Cash, Minister for Jobs and Innovation, about protection from discrimination against trans, gender diverse and intersex employees under the Fair Work Act 2009. As the issues raised fall within my portfolio responsibilities as Minister for Small and Family Business, the Workplace and Deregulation, your email was referred to me for reply.

 

The Australian Government believes that discrimination in the workplace is unacceptable and all employees have the right to be free from discrimination at work.

 

The Sex Discrimination Act 1984 (the Sex Discrimination Act) is the principle legislation providing protection against discrimination or harassment on the basis of sex and/or gender. It also covers discrimination and harassment in the workplace. The Sex Discrimination Act explicitly covers discrimination on the basis of gender identity and intersex status.

 

The Human Rights Commission Act 1986 provides remedies for workers who have been discriminated against, harassed or dismissed on the basis of gender identity or intersex status, including in the workplace. The Australian Human Rights Commission (AHRC) is responsible for responding to complaints about harassment or discrimination on the basis of gender identity or intersex status.

 

Any person who has been discriminated against, harassed or dismissed on the basis of gender identity or sex characteristics should contact the AHRC for information and advice. The AHRC has the power to investigate and conciliate the complaints of discrimination and breaches of human rights. Information on what is required to make a complaint is available at www.humanrights.gov.au under the complaints tab on that page. There is also a National Information Service line on 1300 656 419.

 

Yours sincerely

 

Craig Laundy

(then) Minister for Small and Family Business, the Workplace and Deregulation

 

Unknown

Will Scott Morrison’s Government continue to exclude trans, gender diverse and intersex employees from the Fair Work Act?

Footnotes:

[i] For more information on the differences in these laws, see A quick guide to Australian LGBTI anti-discrimination laws.

Submission re Queensland Registering Life Events Discussion Paper

The following is my submission in response to the Queensland Government Registering Life Events: Recognising sex and gender diversity and same-sex families Discussion Paper. For more information on this review, go here.

 

BDM Act Review Team

PO Box 15188

City East, Brisbane QLD 4002

bdmlegislativereview@justice.qld.gov.au

 

Wednesday 18 April 2018

 

To the BDM Act Review Team

 

Submission re Registering Life Events Discussion Paper

 

Thank you for the opportunity to provide a submission in response to the Registering Life Events: Recognising sex and gender diversity and same-sex families Discussion Paper.

 

I write this submission as a long-time advocate for the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.

 

I also write this as a cisgender gay man, and am therefore guided by the views of those groups directly affected by the provisions of the Births, Deaths and Marriages Registration Act 2003.

 

Specifically, with respect to questions 1 to 7 I endorse both the submission to the current review by Intersex Human Rights Australia (IHRA),[i] and the Sex and Gender Advisory Group’s letter to the Commonwealth Attorney-General’s Department Review of the Australian Government Guidelines on the Recognition of Sex and Gender.[ii]

 

Where there is any inconsistency between this submission and the views of these groups, I defer to them as experts in these areas.

 

Question 1. How should a person’s sex be recorded on the birth, adoption and death registers?

Question 2. Do you have any other comments on this issue?

 

I support the views expressed in Recommendation 3 of the Intersex Human Rights Australia submission that: Queensland should end legal classification of individuals by sex or gender, in line with the Darlington Statement and the Yogyakarta Principles plus 10.

 

I also agree with IHRA that this recommendation is unlikely to be achieved in the short-term and therefore support their recommendation 4, namely that: In the absence of an end to legal classification of individuals by sex or gender, Queensland should recognise ‘non-binary’, alternative (for example, self-affirmed) and multiple sex markers. Changes should be available [via] a simple administrative procedure, for example, via a statutory declaration.

 

I note that this terminology, and in particular the use of the term ‘non-binary’, was also supported by the Sex and Gender Advisory Group in its letter of 24 September 2015.

 

Question 3. Should any changes be considered to the BDMR Act and BDMR Regulation to improve the legal recognition of sex and gender diverse people in Queensland? If so, what should the changes be?

Question 4. Should any changes be made to the BDMR Act’s provisions regarding an application to note a reassignment of sex for children/young people under the age of 18? If so, what should the changes be?

 

Yes, significant changes must be made to the Births, Deaths and Marriages Registration Act 2003 to improve the legal recognition of sex and gender diverse people in Queensland. This includes the removal of the major hurdles that currently prevent people from accessing accurate and appropriate identity documentation.

 

First, the requirement that trans and gender diverse people must have ‘sexual reassignment surgery’[iii] before being able to update their sex on the birth register must be removed. This requirement is inappropriate as not all transgender people want or are able to undertake such procedures (for a variety or reasons, including financial).

 

Second, the requirement that applications to note the reassignment of a person’s sex ‘must be accompanied by statutory declarations, by 2 doctors, verifying that the person the subject of the application has undergone sexual reassignment surgery’ [section 23(4)(b)] must also be removed. The medicalisation of identity recognition processes is also inappropriate – doctors should not be ‘gatekeepers’ of the identity of trans and gender diverse people.

 

The process for updating sex and gender details should be based on the experience and/or identity of the individual involved – not the opinion of medical ‘experts’ – and should be straight-forward, most likely affirmed through a simple statutory declaration.

 

The same principles should also apply with respect to minors, with no medical gatekeepers involved, and the only caveat being that they are able to demonstrate their capacity for consent. Obviously, this also means that where a minor is able to demonstrate such capacity, they should be permitted to amend their identity documentation in the absence of approval from parent(s) or guardian(s).

 

Finally, I endorse Recommendation 6 of the Intersex Human Rights Australia submission that: In the absence of legislation and regulation that implements prior BDM recommendations, the Queensland government should ensure that a separate, simple and accessible pathway is available for people born with variations of sex characteristics to correct details on birth certificates.

 

Question 5. Should the BDMR Act contain provisions to allow for the reassignment of a person’s sex for individuals who reside in Queensland but whose birth was registered elsewhere?

Question 6. Should BDMR Act allow for the issuing of a gender recognition certificate/identity acknowledgement certificate which can be used by a person as proof of their sex or gender?

Question 7. Do you have any other comments on this issue?

 

Yes, I support the inclusion of provisions to allow for the reassignment of a person’s sex for individuals who reside in Queensland but whose birth was registered elsewhere. This would seem to be an important practical measure for people who are unable to update these details in other jurisdictions, for a variety of possible reasons.

 

I am not in a position to comment on the process for such recognition – including the specific proposal for the issuing of a gender recognition certificate/identity acknowledgement certificate – and defer to the views of trans, gender diverse and intersex organisations on this question.

 

Question 8. Should the BDMR Act be amended to permit same-sex parents to choose how they are recorded on a birth or adoption registration?

 

Yes, although this should not be limited to ‘same-sex parents’ – all parents should be able to nominate how they are recorded. This would better reflect the diversity of modern families, not just in terms of sexual orientation and gender identity, but also in terms of methods of family creation.

 

Question 9. If so, what descriptors should be available and in what combinations?

 

At the very least, parents should have the option of nominating as ‘mother’, ‘father’ or ‘parent’, thereby allowing the combinations of mother/father, mother/mother, father/father, mother/parent, father/parent and parent/parent.

 

I am not in a position to comment on what other terms may be preferable (especially with respect to the potential use of ‘birth mother’ or ‘birth parent’) but encourage the BDM Act Review Team to consult directly with rainbow families on these issues.

 

Question 10. Do you have any other comments on this issue?

 

I note that the Discussion Paper states that ‘[t]he issue of whether or not a child’s birth or adoption registration should include more than two parents and the issuing of integrated birth certificates listing more than two parents will be canvassed in a subsequent discussion paper.’

 

I take this opportunity to pre-emptively express the view that, in contemporary Australia, there is already a wide range of family structures in existence – including where children are raised by three or four different parents – and that the law should be amended to reflect this reality.

 

Additional Comments

 

I also take this opportunity to express my support for the first two recommendations of the Intersex Human Rights Australia submission to the current review, namely that:

 

Recommendation 1. Queensland should protect children’s right to bodily integrity, in line with the Darlington Statement and the Yogyakarta Principles plus 10

and

Recommendation 2. The Queensland government should protect people from discrimination and violence on grounds of ‘sex characteristics’, in line with the attribute defined in the Yogyakarta Principles plus 10.

 

These are important issues and both represent serious shortcomings in Queensland law (as well as in other jurisdictions within Australia). The Queensland Government has in recent years adopted a progressive agenda on LGBTI issues overall – I strongly encourage it to add both of these items to that list.

 

Thank you for considering this submission as part of this important review. Please do not hesitate to contact me at the details below should you require additional information.

 

Sincerely

Alastair Lawrie

 

Palaszczuk

The Palaszczuk Labor Government has already enacted a strong LGBTI reform agenda – but there’s plenty left to do.

 

Footnotes:

[i] Morgan Carpenter, 4 April 2018: https://ihra.org.au/32033/submission-bdm-queensland/

[ii] Gavi Ansara, Sue Webeck, Morgan Carpenter, Peter Hyndal and Sally Goldner, 24 September 2015, as published on the National LGBTI Health Alliance website: https://lgbtihealth.org.au/wp-content/uploads/2015/10/FOR-DISTRIBUTION-AGD-Sex-and-Gender-Guidelines-Review-Advisory-Group-Endorsement-Letter.pdf

[iii] Defined in the Act as:

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

(a) to help the person to be considered a member of the opposite sex; or

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

Submission re Queensland Births, Deaths and Marriages Registration Amendment Bill 2018

The Queensland Government has introduced legislation to finally abolish ‘forced trans divorce’ in that state. The following is my submission to the Parliamentary Committee which is considering this Bill. More details about this inquiry can be found here.

 

Committee Secretary

Legal Affairs and Community Safety Committee

Parliament House

George Street

Brisbane QLD 4000

lacsc@parliament.qld.gov.au

 

Sunday 18 March 2018

 

Dear Committee

 

Births, Deaths and Marriages Registration Amendment Bill 2018

 

Thank you for the opportunity to provide a submission in relation to the Births, Deaths and Marriages Registration Amendment Bill 2018.

 

In short, I strongly support this legislation. As noted by Attorney-General, the Hon Yvette D’Ath, in her second reading speech, the Bill ‘makes an important and necessary amendment to ensure true marriage equality is realised for sex and gender diverse Queenslanders.’

 

The existing provisions of the Births, Deaths and Marriages Registration Act 2003, which require that married transgender people must divorce their spouses before they are able to have the reassignment of their sex noted on the birth register, are a gross violation of human rights.

 

Forced trans divorce does not respect the right to personal autonomy and self-determination of trans and gender diverse people.

 

Forced trans divorce also does not respect the ability of all people to choose who they marry, and then to decide between themselves whether they remain married – rather than having that decision made for them by government.

 

Forced trans divorce is in direct contravention of Article 26 of the International Covenant on Civil and Political Rights which provides that:

 

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

 

The amendments proposed in this Bill will help address these human rights breaches. If passed, it will ensure that nobody is left in the impossible situation of having to choose between staying married to the person they love and being able to access identity documentation that reflects their gender identity.

 

I therefore urge the Legal Affairs and Community Safety Committee to recommend the passage of the Births, Deaths and Marriages Registration Amendment Bill 2018 and for all members of Queensland Parliament to act on that recommendation.

 

Before I conclude this submission I would also note that forced trans divorce is not the only aspect of the Births, Deaths and Marriages Registration Act 2003 which breaches the human rights of trans and gender diverse people in Queensland.

 

In particular, their right to personal autonomy and self-determination is violated in three key ways:

 

  1. The requirement that people must have ‘sexual reassignment surgery’[i] before being able to update their sex on the birth register. This is inappropriate as not all transgender people want or are able to undertake such procedures (for a variety or reasons, including financial).

 

  1. The requirement that applications to note the reassignment of a person’s sex ‘must be accompanied by statutory declarations, by 2 doctors, verifying that the person the subject of the application has undergone sexual reassignment surgery’ [section 23(4)(b)]. The medicalisation of identity recognition processes is also inappropriate – doctors should not be ‘gatekeepers’ of the identity of trans and gender diverse people.

 

  1. The requirement that sex be marked as either male or female on the register. This binary categorisation does not recognise the diversity of sex and gender which exists in the community, and therefore imposes inaccurate identity documentation on some people.

 

I note that in her second reading speech Ms D’Ath stated that:

 

The Palaszczuk government is strongly committed to ensuring our laws support the rights of sex and gender diverse Queenslanders. The focus of the first public discussion paper for the recently commenced review of the BDMR Act is examining how Queensland life event registration services can improve legal recognition of lesbian, gay, bisexual, transgender and intersex Queenslanders and their families. I encourage all Queenslanders to access the discussion paper on the Get Involved website and have their say.

 

[NB The Registering life events: Recognising sex and gender diversity and same-sex families Discussion Paper can be found here. Submissions are due by 4 April.]

 

I look forward to the three human rights violations identified above being addressed through that process. However, I believe it is important they are highlighted here because, while the Births, Deaths and Marriages Registration Amendment Bill 2018 is an important step forward, it is by no means the end of the journey towards the full recognition and acceptance of trans and gender diverse Queenslanders.

 

If you would like additional information, or to clarify any of the above, please do not hesitate to contact me.

 

Sincerely

Alastair Lawrie

 

MemberImgHandler.ashx

Queensland Attorney-General, the Hon Yvette D’Ath MP.

 

 

Footnotes:

[i] Defined in the Act as:

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

(a) to help the person to be considered a member of the opposite sex; or

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