[NB This article is the fourth in a series looking at the unfinished business of LGBTI equality in Australia.]
Earlier this year, 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:
- Access to amended identity documentation must not depend on surgery or other medical treatments
- Access to amended identity documentation must not depend on approval by doctors or other medical professionals, and
- 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.
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 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 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. With the recent re-election of the Andrews Government, they will hopefully act on this issue quickly in their second term.
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 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, although it is concerning that there doesn’t appear to be any follow-up to that discussion paper in the eight months since. If the Palaszczuk Government doesn’t act, it’s up to the community to put pressure on them to do so.
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  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 considered in the recent options paper produced by the Western Australia Law Reform Commission as part of their inquiry into recognition of a person’s sex, change of sex or intersex status (see my submission to that inquiry, here). It will be interesting to see what the final outcome of that inquiry is, and whether the WA Government implements its recommendations.
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 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 2018, 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.
This has resulted in the Justice and Related Legislation (Marriage Amendments) Bill 2018, which has passed the Legislative Assembly (despite Government opposition) and will be considered by the Legislative Council in early 2019.
This includes creating a system of gender identity registration based on self-declaration only, which would be best-practice (as well as making the inclusion of gender optional on birth certificates for people who apply for it, or parents who choose that – a proposal that has potential benefits for both trans and gender diverse and intersex people, and which appears to have provoked an irrational response from Prime Minister Morrison).
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.
The Northern Territory has 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.
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.