This week marked an important milestone on the long march to trans and gender diverse equality in Australia. From 1 May 2020, trans and gender diverse people in Victoria can update their birth certificate and other identity documentation without requiring surgery.
Unfortunately, there are still two Australian jurisdictions that continue to impose this unjustified and unnecessary barrier, as well as a third where the laws also require urgent amendment.
[NB The following is up to date as at 23 March 2023]
New South Wales
Under section 32B of the Births, Deaths and Marriages Registration Act 1995, in order to apply to alter the register to record a change of sex, a person must first have ‘undergone a sex affirmation procedure’, which is defined in section 32A as:
‘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.’
With the NSW election to be held on Saturday (25 March), neither the Perrottet Liberal/National Government nor the Minns Labor Opposition have given any clear commitments to amend these laws. As we will see below, that will soon leave NSW as the only place left which imposes a requirement for genital surgery on trans people who simply want identity documentation which reflects who they are.
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 birth.’
This requirement is obviously the same as NSW’s – for the time being.
However, in late 2022, the Palaszczuk Labor Government introduced the Births, Deaths and Marriages Bill 2022, which would replace the requirement with a scheme based on Victoria’s (discussed below) which removes any requirement for surgery, or other medical approval (but still falls short of the best practice approach in Tasmania, also discussed later in this article).
The situation is only slightly better in the nation’s West, where section 14 the Gender Reassignment Act 2000 allows people to apply for gender recognition certificates where that person ‘has undergone a reassignment procedure’. 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.’
Fortunately, following a decision of the High Court in AB v Western Australia; AH v Western Australia  HCA 42 6 October 2011, this has been interpreted such that genital surgery is not required. However, physical medical treatment, such as hormone therapy, remains a pre-requisite to access a new birth certificate in Western Australia.
These issues were examined in the Law Reform Commission of Western Australia’s 2018 Report: Review of Western Australian legislation in relation to the registration or change of a person’s sex and/or gender and status relating to sex characteristics, which recommended that applications for change of gender involve a simple administrative process, including a statutory declaration, with no requirement for surgical or other medical treatment.
After a long delay, the WA McGowan Government promised in late 2022 to abolish the Gender Recognition Board. It is expected that they too will introduced similar reforms to the existing Victorian approach.
South Australia, Australian Capital Territory and Northern Territory
These three jurisdictions have abolished the requirement for trans and gender diverse people to have surgery, or other physical medical interventions, in order to access updated birth certificates and identity documentation.
However, they do still require doctors or other health practitioners, such as counsellors or psychologists, to approve such applications, which remains inappropriate medicalisation of people’s gender identities, that should instead be based on self-identification.
Section 29L of South Australia’s Births, Deaths and Marriages Registration Act 1996 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…’, with section 29H clarifying that ‘clinical treatment need not involve invasive medical treatment (and may include or be constituted by counselling).’
Likewise, section 24 of the Australian Capital Territory’s Births, Deaths and Marriages Registration 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’. Clinical treatment is not further defined, meaning it does not explicitly require surgical intervention.
The Northern Territory has also adopted a similar approach, with section 28B of their Births, Deaths and Marriages Registration Act providing that trans and gender diverse people can update their birth certificates if they can show that they have ‘received appropriate clinical treatment in relation to the adult’s sex or gender’.
It is positive that each of South Australia, the ACT and NT have removed the requirement for surgery or other physical medical interventions. However, in order to reflect the self-determination of trans and gender diverse people, they should still amend their laws to remove the role of health practitioners as ‘gate-keepers’ of their identity.
As indicated above, Victoria’s new birth certificate reforms mean trans and gender diverse Victorians can update their identity documentation without having surgery or other physical medical interventions.
Importantly, these changes, which were introduced by the Births, Deaths and Marriages Registration Amendment Act 2019 (Vic), also mean that trans and gender diverse people do not need approval from doctors or other health practitioners, such as counsellors or psychologists. Their role as ‘gate-keepers’ is over.
However, there is one requirement which fails the principle of complete ‘self-identification’. That’s because section 30A of the Victorian Births, Deaths and Marriages Registration Act 1996 requires adults to 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 their sex in good faith, and
- supports the application.
This second requirement in particular (that another person must ‘support’ the application of a trans or gender diverse person for a new birth certificate) is unnecessary, and is the reason why Victoria’s new scheme, while a massive improvement from the previous regime, falls short of Australian best practice.
That honour belongs to Tasmania’s Births, Deaths and Marriages Registration Act 1999. Following amendments earlier last year, it allows trans and gender diverse Tasmanians (aged over 16) to self-determine their own gender identity.
Without the need for surgery or other physical medical interventions. Without the need for medical approval. And based solely on self-identification.
When NSW, Queensland and Western Australia finally bring their own birth certificate laws into the 21st century, it is the Births, Deaths and Marriages Registration Act 1999 (Tas) they should be emulating.
This article is part of a series. Find other ‘Did You Know?’ posts here.
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