Gender Reassignment Act Australia

Transgender rights in Australia enjoy legal recognition and protection under federal and state/territory laws, but the requirements for gender recognition vary depending on the jurisdiction.[1] For example, birth certificates and driver licences are within the jurisdiction of the states and territories, while Medicare and passports are matters for the Commonwealth.[2]

Changing legal gender assignment for federal purposes such as Medicare and passports requires only a letter from a treating medical practitioner.[2] By contrast, most states and territories impose additional requirements for gender recognition that have been criticised by the Australian Human Rights Commission and LGBT advocates.[2] This includes the requirement that the person must undergo sexual reassignment surgery.[1] Advocates argue that marital status and surgery requirements are irrelevant to the recognition of a person's sex or gender identity, and instead should rely on their self-identification.[2][3] The legalisation of same-sex marriage in 2017 had the effect of removing the requirement to divorce if one was already married. This takes effect on 9 December 2018 unless the state or territory government has already removed this requirement beforehand.[4]

Gender reassignment surgery is available in Australia with the costs of some, but not all, treatments for trans people covered by the national Medicare public health scheme. Between 2004 and 2017 transgender children required approval from the Family Court of Australia before being prescribed hormone treatment, although a series of rulings in 2013 and 2017 removed the need for court approval of puberty blockers and cross-sex hormone therapy where there is no dispute between a child, their parents and their treating doctors.[5]

History[edit]

Following the widespread newspaper reports of the successful sex change operations of Christine Jorgensen in December 1952 and Roberta Cowell in March 1954, the first reported case of an Australian undertaking a sex change operation was an ex-RAAF Staff Sergeant Robert James Brooks in February 1956.[6]

In 1975, the Gender Dysphoria Clinic at Queen Victoria Hospital Melbourne was established by Dr Trudy Kennedy and Dr Herbert Bower. The clinic later moved in the Monash Medical Centre in 1989 and closed surgeries in 2009; however it continues to provide mental health assessments and referrals as the Monash Health Gender Clinic. [7]

In 1979 Australia's first transgender rights and advocacy organisations were established, the Melbourne-based Victorian Transsexual Coalition and the Victorian Transsexual Association; these were followed in 1981 by the Sydney-based Australian Transsexual Association, which included prominent activist, academic and author Roberta Perkins.

In 1987, Estelle Asmodelle became possibly Australia's first legally recognized transsexual with the Births, Deaths and Marriages Department of New South Wales,[8] and her transition helped gain recognition for transgender people in Australia.[9] This was the first time in Australian legal history that a transgender Australian was permitted to change their birth certificate to a different sex.[10] Soon afterwards the passport laws also changed to allow the sex on passports to be changed

Identification documents[edit]

Issues[edit]

Forced divorce[edit]

Traditionally, all states and territories required a person to be single before changing the sex recorded on their birth certificate, which meant divorcing their spouse if the person was married.[11] This was to prevent a same-sex marriage arising after the person's transition to the same sex as their partner, which would contradict the Commonwealth law prohibiting same-sex marriage in Australia before 2017.[11][12][13]

To prevent married trans* people challenging the "forced divorce" requirement on the basis that it discriminated against their marital status in breach of the Sex Discrimination Act, in 2011 the Gillard Government introduced an exemption in section 40(5) of that Act allowing a State or Territory "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".[14][15]

Despite the exemption, both Australian Capital Territory and South Australia changed birth certificate sex markers for married transgender people before the introduction of same-sex marriage, with the latter repealing its "forced divorce" law in 2016.[16] Legislation abolishing forced trans* divorce was also introduced in 2014 in Tasmania and New South Wales, but have not passed. In 2017 the United Nations Human Rights Committee upheld[17] a New South Wales woman's objection to her state's forced divorce law, finding it violated articles 17 and 26 of the International Covenant on Civil and Political Rights.[18][19][20]

The section 40(5) exemption was repealed by the law legalising same-sex marriage in Australia, the Marriage Amendment (Definition and Religious Freedoms) Act 2017, which will make it unlawful for Australian states and territories to require a trans* person to divorce before changing the sex on their birth certificate.[21] However, the repeal does not come into effect until 12 months from the legalisation of same-sex marriage - that is, until 9 December 2018 - to give states and territories time to abolish the "forced divorce" requirement from their birth certificate laws.[13]

Medical requirements[edit]

In 2014 the Australian Capital Territory abolished the sex reassignment surgery requirement for a change of sex on birth certificates,[22][23] after a 2013 Law Reform Advisory Council report called it "inhumane".[24]

In 2014 trans man Paige Phoenix challenged the Victorian requirement for surgery on the basis that it would be potentially life-threatening, making a complaint to the Human Rights Commission and United Nations.[25]

South Australia abolished the surgery requirement in December 2016, while a similar proposal in Victoria failed in the Legislative Council by one vote.[26]

Western Australia formerly required sterilisation prior to approving a change in sex classification. This requirement was overturned when the High Court ruled, in the 2012 case of AB v Western Australia, that two transgender men who had undergone mastectomies and hormone treatment did not need to undergo sterilisation to obtain a WA gender recognition certificate.[27]

Non-binary gender recognition[edit]

Norrie May-Welby is a Scottish-Australian who became the first transgender person in Australia to publicly pursue a legal status of neither a man nor a woman. That status was subject to appeals by the State of New South Wales.[28]

In April 2014, the High Court of Australia unanimously ruled in a case titled NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11[29][30] that, having undergone sex affirmation surgery, androgynous person Norrie was to be registered as neither a man nor a woman with the NSW Registry of Births, Deaths and Marriages.[31] The decision follows previous regulations and legislation that recognises a third gender classification, and establishes that Australia's legal system recognises and permits the gender registration of 'non-specific', as the judges found in the Norrie case.[31]

The Australian Capital Territory's 2014 birth certificate law amendments also allowed people to register as male, female or "X" regardless of whether they had undertaken any surgery.[22] Victoria's failed 2014 proposal had a similar approach.[32]

Birth certificates by state[edit]

Birth certificates are issued by states and territories. In many states, sterilisation is (or has been) required for trans people to obtain recognition of their preferred gender in cardinal identification documents.

Australian Capital Territory[edit]

In 2014, the Australian Capital Territory passed legislation that removed the surgery requirement for changing the sex marker on birth certificates.[34] In 2016 the ACT introduced a new identity document for transgender people who were born outside the Territory to use as their proof of gender instead of a birth certificate.[35]

New South Wales[edit]

The New South Wales Registry of Births Deaths & Marriages requires that trans people must have "undergone a sex affirmation procedure."[36]

South Australia[edit]

In December 2016, South Australia became the first state to remove the surgery requirement for a change of sex on birth certificates.[26]

Passports[edit]

The Australian Government Guidelines on the Recognition of Sex and Gender, which took effect from 1 July 2013, enable any adult to choose to identify as male, female or X. Documentary evidence must be provided from a doctor or psychologist, but no medical intervention is required.[37]

Alex MacFarlane was reported as receiving a passport with an 'X' sex descriptor in early 2003. MacFarlane achieved this after using an indeterminate birth certificate that was issued by the State of Victoria.[38][39][40] Australian government policy between 2003 and 2011 was to issue passports with an 'X' marker only to people who could "present a birth certificate that notes their sex as indeterminate"[1][41]

In 2011, the Australian Passport Office introduced new guidelines for issuing of passports with a new gender, and broadened the availability of the X descriptor to all individuals with documented "indeterminate" sex.[42][43] The revised policy stated that "sex reassignment surgery is not a prerequisite to issue a passport in a new gender. Birth or citizenship certificates do not need to be amended."[44]

Gender dysphoria treatment[edit]

Access by children[edit]

Medical treatment for minors with gender dysphoria experiencing puberty is generally divided into two stages:[45]

Transgender Australians are generally not eligible for sexual reassignment surgery until they turn 18 years old.[47]

Medical treatment is available to a child who has been diagnosed with gender dysphoria.[46] A diagnosis requires that the child feels and verbalises a strong desire to have a different gender for at least six months.[45]

A number of requirements must be satisfied in order for a transgender child to receive treatment. Stage 1 treatment in Australia is provided in accordance with the Endocrine Society's Clinical Practice Guideline "Endocrine Treatment of Transsexual Persons"[48] and involves:[46][47]

  • a standardised assessment of psychological development by two independent child and adolescent psychiatrists
  • a formal assessment of the child’s gender identification and capacity to understand the proposed treatment
  • an assessment by a paediatric endocrinologist to establish the child’s pubertal stage and exclude disorders of sex development
  • discussions between the paediatric endocrinologist, the child and their parents about the effects and risks of blocking puberty
  • (if there is any disagreement between the child, a parent or the medical practitioner about the treatment) legal authorisation from the Family Court of Australia

Access to Stage 2 treatment requires the following:[46]

  • consensus among a team of medical practitioners (a paediatrician, a fertility expert and two mental health professionals of whom at least one must be a psychiatrist) that the treatment is in the best interests of the child
  • (if there is any disagreement between the child, a parent or the medical practitioner about the treatment) legal authorisation from the Family Court of Australia

Court involvement[edit]

In the 2004 case Re Alex : Hormonal Treatment for Gender Identity Dysphoria[49] the Family Court of Australia held that both Stage 1 and Stage 2 treatments for gender dysphoria were non-therapeutic "special medical procedures" for the purposes of the Family Law Act 1975, which meant that even if a child's parents consented, the Family Court's approval was necessary to ensure the child's welfare was protected. This was based on the principles of Marion's Case, in which the High Court of Australia ruled that parental consent was insufficient for "special medical procedures", and instead court approval was necessary to ensure they were in the best interests of the child.[50] After that case, the Family Court heard an increasing number of applications for child gender dysphoria treatment.[45]

This approach was relaxed in several 2013 judgments,[51][52] which were approved by the Full Court of the Family Court in Re Jamie.[53] In these cases, the judges accepted that the medical treatments were therapeutic in nature and that parents could consent to Stage 1 treatment for their child without court oversight.[45] Court approval would only be necessary for Stage 1 treatment if there was a disagreement between the child, their parents or the treating doctors about the treatment.[54]

In these cases, the Family Court established what is referred to as the child's Gillick competence; in other words, whether the child is in a position to consent to the treatment by fully understanding its nature, effects and risks.[55] If the Court found the child to be Gillick-competent, the child's wishes must be respected. If not, the Court would then decide whether the proposed treatment is in the child's best interests.[56]

Australia was the only country in the world to require court involvement in the process.[57] Several families with transgender children called for the Family Court's role to be abolished, given that the legal process merely "rubber stamped" the expert opinions of medical practitioners and imposed significant financial and emotional costs on applicants.[55] The legal process cost about $30,000 in 2016.[55] Opponents of court involvement also indicated that some transgender teenagers were risking their lives sourcing cross-sex hormones on the black market due to the cost and delays caused by the legal process.[57]

In 2016, Family Court Chief Justice Diana Bryant acknowledged the difficulties of the existing process and promised it would be simplified.[58] Bryant had earlier suggested in 2014 that the High Court of Australia should reconsider the case law requiring court supervision for the medical treatment of transgender children.[59] As recently as late 2016 a spokesperson for the Attorney-General's office said the government was “actively considering options” for reform.[60]

On 30 November 2017, the Full Court of the Family Court issued a ruling which removed the court's involvement in the hormone replacement therapy process for children where both the family and medical staff agreed. The case, known as Re Kelvin, was brought by a father of a 16-year old transgender child, who asked the court to consider whether previous case law requiring the court process for unopposed applications should be overturned. The case had several interveners, most of which agreed the court's role should be removed from the process unless there was a disagreement.[5][61][62]

Access by adults[edit]

Gender reassignment surgery is available in Australia with the costs of some, but not all treatments for trans people covered by the national Medicare public health scheme.[63] Trans advocates have campaigned for full Medicare funding for various treatments that may be currently be unaffordable for transgender people, such as breast surgery, facial surgery and hormone treatments, among others.[63] Few Australian medical staff have expertise in trans issues, particularly in rural areas,[64] leading to many transgender Australians to travel overseas for surgery to countries such as Thailand.[63] Members of the trans community have also called for greater access to mental health services given the increased demand, with delays of 12 to 18 months recorded in Victoria for access to necessary psychological and psychiatric services before hormone therapy can be accessed.[65]

Discrimination protections[edit]

Federal law protections[edit]

Prior to 1 August 2013 Australia did not comprehensively outlaw discrimination based on gender identity at the federal level. In late 2010, the Gillard Labor Government announced a review of federal anti-discrimination laws, with the aim of introducing a single equality law that would also cover sexual orientation and gender identity.[66] This approach was abandoned and instead on 25 June 2013, the Federal Parliament added marital or relationship status, sexual orientation, gender identity and intersex status as protected attributes to the existing Sex Discrimination Act by passing the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

From 1 August 2013, discrimination against transgender and gender diverse people, and all LGBTI people, became illegal for the first time under national law. Aged care providers who are owned by religious groups will no longer be able to exclude people from aged care services based on their LGBTI or same-sex relationship status. However, religious owned private schools and religious owned hospitals are exempt from gender identity and sexual orientation provisions[67] in the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013.[68]

State and territory law protections[edit]

Aside from Commonwealth (i.e. federal) anti-discrimination laws, each of the states and territories have their own laws which protect LGBTI people from discrimination.

School anti-bullying programs[edit]

The Safe Schools Coalition Australia has sought to combat anti-LGBTI abuse or bullying, which research suggested was prevalent across Australian schools.[69] Initially established in Victorian schools in 2010,[70] the program was launched nationwide in 2014 under the Abbott Government.[71] The program received support from a majority of state governments, LGBTI support groups and other religious and non-governmental organisations such as beyondblue,[72]headspace and the Australian Secondary Principals Association.[73]

However, the program faced criticism in 2015 and 2016 from social conservatives including the Australian Christian Lobby, LNP politicians such as Cory Bernardi, George Christensen, Eric Abetz, Malcolm Turnbull, Tony Abbott, Kevin Andrews, and former Labor Senator Joe Bullock for indoctrinating children with "Marxistcultural relativism"[69] and age-inappropriate sexuality and gender concepts in schools,[74] while others criticised the Marxist political views of Roz Ward, a key figure in the program.[69][75][76] Petitions were also delivered against the program by members of Australia's Chinese and Indian communities.[77]

The concerns led to a review under the Turnbull Government, which implemented a number of changes such as restricting the program to high schools, removing role playing activities and requiring parental consent before students take part.[78] The federal changes were rejected by the governments of Victoria and the Australian Capital Territory, who persisted with the original program and announced they would fund it independently of the federal government.[79] Funding for the federal program has since been allowed to lapse.[80]

Marriage[edit]

In the 2001 case of Re Kevin – validity of marriage of transsexual, the Family Court of Australia held that a post-operative transsexual person could be recognised as their new gender for the purposes of marriage.

See also[edit]

References[edit]

  1. ^ abc"Concluding paper of the sex and gender diversity project". Sex Files: the legal recognition of sex in documents and government records. Australian Human Rights Commission. March 2009. Archived from the original on 17 September 2016. Retrieved 8 September 2016. 
  2. ^ abcdMcAvan, Emily (12 August 2016). "Why Australia's gender recognition laws need to change". Special Broadcasting Service. Archived from the original on 20 December 2016. Retrieved 12 December 2016. 
  3. ^Gleeson, Hayley (7 April 2016). "Gender identity: Legal recognition should be transferred to individuals, Human Rights Commission says". Australian Broadcasting Corporation. Archived from the original on 19 September 2016. Retrieved 8 September 2016. 
  4. ^"What do the same-sex marriage laws actually say?". News.com.au. 9 December 2017. Archived from the original on 9 December 2017.  
  5. ^ abLane Sainty (30 November 2017). "Transgender Teens Can Now Access Treatment Without Going To Court, Following Landmark Decision". BuzzFeed. Archived from the original on 11 December 2017. 
  6. ^Ex-RAAF man wants to change his sex, Mirror (Perth, WA), Saturday 25 February 1956, Page 5
  7. ^"Gender Clinic". Monash Health. Archived from the original on 4 January 2018. Retrieved 4 January 2018. 
  8. ^The Daily Mirror (Australia) Newspaper 13 October 1987
  9. ^Highlands Post Newspaper 10 January 1986
  10. ^Rhodes (7 September 2017). "8 hard-won rights for LGBTI Australians". Museum of Australian Democracy at Old Parliament House. Old Parliament House. Archived from the original on 12 September 2017. Retrieved 23 October 2017. 
  11. ^ abBishop, Caitlin (21 June 2017). "Transgender men and women in Australia are forced to divorce if they want a new birth certificate". Mamamia. Archived from the original on 17 January 2018. Retrieved 16 January 2018. 
  12. ^Silva, Christiana (10 January 2018). ""Forced divorce" laws for transgender people undermine Australia's same-sex marriage legalization". Newsweek. Newsweek LLC. Archived from the original on 16 January 2018. Retrieved 16 January 2018. 
  13. ^ abSainty, Lane (10 January 2018). "Now That Same-Sex Marriage Is Legal, States Must Abolish Transgender "Forced Divorce" Laws". BuzzFeed. Archived from the original on 17 January 2018. Retrieved 16 January 2018. 
  14. ^"Sex and Age Discrimination Legislation Amendment Bill 2011 - Explanatory Memorandum". ParlInfo. Parliament of Australia. Archived from the original on 17 September 2015. Retrieved 16 January 2018.  
  15. ^"Legislative Tracker: Sex and Age Discrimination Legislation Amendment Bill 2011". ParlInfo. Parliament of Australia. Archived from the original on 19 April 2017. Retrieved 16 January 2018. 
  16. ^Hirst, Jordan (10 January 2018). "Calls For State Premiers To Scrap 'Forced Transgender Divorce' Laws - QNEWS". QNews. Archived from the original on 17 January 2018. Retrieved 16 January 2018. 
  17. ^"G v Australia"(PDF). Views adopted by the Committee under article 5(4) of the Optional Protocol, concerning communication No. 2172/2012. United Nations Human Rights Committee. Archived(PDF) from the original on 27 June 2017. Retrieved 16 January 2018. 
  18. ^Gerber, Paula (27 June 2017). "Even the UN rejects Australia's stance on transgender married couples". The Guardian. Archived from the original on 17 January 2018. Retrieved 16 January 2018. 
  19. ^Sainty, Lane (20 June 2017). "A Married Transgender Woman Fighting For A New Birth Certificate Won The Backing Of The UN". BuzzFeed. Archived from the original on 17 January 2018. Retrieved 16 January 2018. 
  20. ^Hirst, Jordan (10 January 2018). "Calls to end forced divorce for trans partners in Australia". Star Observer. Archived from the original on 17 January 2018. Retrieved 16 January 2018. 
  21. ^"Marriage Amendment (Definition and Religious Freedoms) Bill 2017 - Explanatory Memorandum". ParlInfo. Parliament of Australia. Archived from the original on 28 February 2018. Retrieved 16 January 2018.  
  22. ^ abLawson, Kirsten (17 March 2014). "Transgender people will be able to alter birth certificates". Canberra Times. Fairfax Media. Archived from the original on 17 January 2018. Retrieved 16 January 2018. 
  23. ^"ACT to make it easier for transgender people to alter birth certificate". ABC News. Australian Broadcasting Corporation. 17 March 2014. Archived from the original on 5 May 2014. Retrieved 16 January 2018. 
  24. ^"Australia: Trans and intersex inclusive birth certificate amendments considered by lawmakers". PinkNews. Archived from the original on 17 January 2018. Retrieved 16 January 2018. 

The Gender Reassignment Board deal with matters relating to a person's changed gender under the Gender Reassignment Act.

Recognition certificates are issued by the Gender Reassignment Board.

Where do I apply to amend my birth certificate?

Provided you were born in Western Australia, an application can be made to the Perth Registry to amend your birth certificate one month after the Gender Reassignment Board has issued your Recognition Certificate (download below).

If you were born in another State that has similar legislation, apply to the relevant Registry Office for your birth certificate.

Payment

Payment may be sent by:

  • Credit card (MasterCard or Visa only)
  • Cheque
  • Money order.

Cheques or money orders should be made payable to: Registrar of Births, Deaths & Marriages.

For more information contact:

Registry of Births Deaths & Marriages
Department of Justice
Level 10, Westralia Square
141 St Georges Terrace
PERTH WA 6000

Business hours: Monday to Friday 8:30am to 4:30pm (except public holidays).

To avoid the usual busy times consider visiting the Perth Registry between 8:30am to 10am or 2pm to 4pm.

Phone: 1300 305 021
Fax: 9264 1599

Post correspondence to:

Registry of Births, Deaths & Marriages
Department of Justice

PO Box 7720
Cloisters Square
PERTH WA 6850


Last updated: 8-Feb-2018

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