Parliamentary Library & Information Service Research Note Department of Parliamentary Services No. 4: September 2016 Parliament of Victoria

ISSN 2204-4779 (Print) 2204-4787 (Online) Births, Deaths and Marriages Registration Amendment Bill 2016

Contents Executive Summary Introduced: 18 August 2016 2nd Reading: 30 August 2016 The Bill House: Legislative Assembly Commencement: The earlier day of Sex Affirmation Surgery the day of Proclamation or 1 October 2017. Marriage Links to key documents including the Bill, Explanatory Memorandum, Non-Binary Sex Descriptors Statement of Compatibility and Second Reading Speech can be found on the Altering a Child’s Record of Sex Library’s New Bills Information Links page for this Bill. Other Jurisdictions For further information on the progress of this Bill please visit the Victorian Further Resources Legislation website. Executive Summary

The Births, Deaths and Marriages Registration Amendment Bill 2016 (‘the Bill’) amends the Births, Deaths and Marriages Registration Act 1996 (‘the Principal Act’) to enable transgender, gender diverse and intersex adults and children to alter the record of sex in their Victorian birth registration without having to undergo sex affirmation surgery and be unmarried.

The Bill implements an ALP pre-election commitment.1 In his Second Reading Speech, the Attorney- General Martin Pakula stated that the Bill is ‘in line with the principle of self-declaration’.2 He described sex affirmation surgery as ‘a serious medical procedure’ which is ‘not an option’ for some people, such as where the surgery is inaccessible or unaffordable or where a person has a medical condition or disability that prevents the surgery being undertaken.3 The Bill also:

• Provides for applications to be made by an adult to alter the sex recorded in their birth registration to a sex descriptor of their choice, provided the descriptor is not prohibited; • Provides for applications to be made to alter the record of sex in a child’s birth registration by the parents, or a sole parent or guardian, where the alteration of the record is in the best interests of the child;

1 Victorian Labor (2014) 2014 Victorian ALP Platform, ALP website, p. 70; M. Pakula, Attorney-General (2016) ‘Second Reading Speech: Births, Deaths and Marriages Registration Amendment Bill 2016’, Debates, Legislative Assembly, 30 August, p. 27. 2 M. Pakula, Attorney-General (2016) ‘Second Reading Speech: Births, Deaths and Marriages Registration Amendment Bill 2016’, Debates, Legislative Assembly, 30 August, p. 27. 3 ibid., p. 27.

PARLIAMENTARY LIBRARY & INFORMATION SERVICE | Research Note 1

• Sets out an approval process for the making of applications by, or on behalf of, prisoners, detainees, serious sex offenders, and parolees, such as where the alteration of the record of sex could have consequences to the community.

This Research Note examines the background to the amendments through key reports and High Court decisions, and provides a comparative framework of other jurisdictions. The Research Note focuses on the three main changes, being the removal of the requirements for both surgery and for an applicant to be unmarried, and provision for non-binary sex descriptors to be used in the record of sex on birth certificates. The Bill

Part 4A of the Births, Deaths and Marriages Registration Act 1996 (Vic) titled ‘Recognition of Sex (Transsexualism)’ was inserted through amendments in 2004.4 The Bill substitutes this section with a new Part 4A titled ‘Acknowledgement of sex’.

Sex Affirmation Surgery The Bill removes the need for sex affirmation surgery as a prerequisite for altering the record of sex in the Register of Births, Deaths and Marriages. This follows recommendations by the Australian Human Rights Commission (AHRC) and changes federally to the recognition of sex and gender in the maintenance of personal records by all Australian Government departments.

In their report Sex Files: The Legal Recognition of Sex in Documents and Government Records (“Sex Files”), the AHRC recommended that: ‘The definition of sex affirmation treatment should be broadened so that surgery is not the only criteria for a change in legal sex’.5 Through the submissions received to their sex and diversity project, the AHRC identified a range of issues with ‘the focus on genital surgery for the legal recognition of sex’, including the affordability of surgery, the risks involved with any surgery and the entrenchment of a medicalised approach.6 Submissions made to the AHRC’s 2015 National Consultation Report, Resilient Individuals: Sexual Orientation, Gender Identity and Intersex Rights argued the requirement for sex affirmation surgery for a change of sex on birth certificates ‘de-legitimises the experiences of people who cannot or choose not to have surgery…’.7

Marriage The Bill also removes the current requirement for a person to be unmarried in order to make an application to alter the record of their sex in their birth registration. As noted in the Second Reading Speech:

This requirement can force a person to choose between a birth certificate that reflects their sex or affirmed gender identity, and the maintenance of the legal relationship with their spouse, even where that relationship is ongoing. Such a choice can have both financial and emotional consequences for the people involved.8

4 Births, Deaths and Marriages Registration (Amendment) Act 2004 (Vic). 5 ibid, p. 3 (Recommendation 2). 6 Australian Human Rights Commission (2009) Sex Files: The Legal Recognition of Sex in Documents and Government Records, The Sex and Gender Diversity Project, Concluding Paper, March, AHRC, p. 25. 7 Australian Human Rights Commission (2015) Resilient Individuals: Sexual Orientation Gender Identity & Intersex Rights 2015, Australian Human Rights Commission, p. 54. 8 M. Pakula, Attorney-General (2016) ‘Second Reading Speech: Births, Deaths and Marriages Registration Amendment Bill 2016’, Debates, Legislative Assembly, 30 August, p. 27.

2 Research Note | PARLIAMENTARY LIBRARY & INFORMATION SERVICE

Last year, several media outlets reported on the challenges of changing gender within a relationship, particularly on the partners of transgender individuals.9 For example, Greens Senator for Victoria Janet Rice has spoken in the media about her relationship with her transgender wife, Nobel Prize winning climatologist Penny Whetton who began transitioning in 2003, 16 years into their marriage.10 Senator Rice stated that her experience ‘gives us a very unique position’:

…to know that having been in both heterosexual marriage and now a same sex marriage that they’re one in the same… We’ve got that experience to know that Penny having transitioned from being Peter to being Penny, she’s the same person. We still love each other. We loved each other when we got married. We loved each other when she transitioned. We still love each other now.11

In their report Sex Files, the AHRC recommended that ‘[m]arital status should not be a relevant consideration as to whether or not a person can request a change in legal sex’ (Recommendation 1).12 The AHRC also recommended that the Federal Government should take ‘a leadership role in ensuring that there is nationally consistent approach to the legal recognition of sex’, particularly in relation to birth certificates (Recommendation 11).13

On this aspect of the Bill, concern was raised about the potential implications of federal and state legislation on the issue of ‘marriage’ in a blog published by law firm Landers. There it was noted that the proposed Victorian changes may have ‘unintended consequences’ as the Marriage Act 1961 (Cth) defines marriage as ‘the union of a man and a woman’, which may mean that the marriage is not likely to be recognised as lawful in Australia.14 Special Counsel Jodylee Bartal noted that:

This can have serious consequences if, for example, the couple eventually wishes to obtain a divorce. A divorce decree cannot be granted in Australia without the existence of a valid marriage. The practical effect of the Victorian legislation could be that couples are unable to get divorced if one person in the marriage changes their gender identity.15

Other media and legal commentary has suggested that the legal definition of marriage in the Commonwealth legislation will not affect marriages that have already been entered into.16 In The Age, Human Rights Law Centre advocacy director Anna Brown stated:

Former federal Attorneys-General from both parties have taken the view that the Marriage Act is concerned with the gender of the couple only at the time of the marriage ceremony, which means states can and should be removing this unnecessary and discriminatory requirement.17

Non-Binary Sex Descriptors The Bill provides an option for those who identity outside the male/female binary (intersex) by allowing an applicant to nominate the sex descriptor in their birth registration as something other

9 S. Anderson (2015) I still love her, we can stay married: The Senator and her transgender wife, SBS News, 7 February; B. Law (2015) Transformers: The unique challenge of changing gender within a relationship, The Sydney Morning Herald, 7 March. 10 S. Anderson (2015) I still love her, we can stay married: The Senator and her transgender wife, op. cit. 11 ibid. See also Senator Rice’s maiden speech: J. Rice, Senator (2014) ‘First Speech’, Debates, Commonwealth of Australia, Senate, 27 August, pp. 5781-5782. 12 AHRC (2009) Sex Files: The Legal Recognition of Sex in Documents and Government Records, op. cit., p. 3. 13 ibid. 14 Landers & Rogers Lawyers (2016) ‘Victoria passes legislation allowing gender identity change on birth certificates’, blog post, 19 August. 15 ibid. 16 B. Hall (2016) New Victorian law will create same-sex marriages, The Age, 18 August. 17 ibid. See also: Human Rights Law Centre (2016) Birth Certificates Reforms a Step Forward for Transgender Equality, media release, 18 August.

PARLIAMENTARY LIBRARY & INFORMATION SERVICE | Research Note 3

than male or female. Provisions in the Bill provide that the Registrar can refuse to issue a document acknowledging the name and sex of an adult or child if that document would acknowledge a prohibited sex descriptor (clause 11(5) of the Bill). A definition of ‘prohibited sex descriptor’ is contained in clause 5(d) of the Bill as a sex descriptor:

(a) that is obscene or offensive; or (b) that could not practicably be established by repute or usage— (i) because it is too long; or (ii) because it consists of or includes symbols without phonetic significance; or (iii) for some other reason

Regarding recording sex as something other than male or female across the Australian jurisdictions, the AHRC noted:

During our consultation with Births Registrars, the Commission was informed that some jurisdictions allow for a sex to be noted as something other than male or female, such as ‘indeterminate’. However, a sex other than male or female was only used in rare circumstances such as in the case of stillborn children or premature births where sex could not be determined.18

The High Court Decision in Norrie In 2014, the High Court upheld the rights of a transgender person to be registered as neither a man nor a woman with the NSW Registry of Births, Deaths and Marriages.19 Norrie, the person at the centre of the High Court case, had undergone a ‘sex affirmation procedure’ but ‘considered that the surgery did not resolve her sexual ambiguity’, and thus she applied for her sex to be registered as ‘non-specific’.20 In their judgment, the Justices noted stated that ‘Not all human beings can be classified by sex as either male or female’.21

Altering a Child’s Record of Sex As reflected in Table 1 below, Victoria is currently the only jurisdiction in which an application cannot be made to change the record of sex in the Register on behalf of a child. The Bill inserts a new section 30B and 30BA which allows the parents of a child to apply to the Registrar to alter the record of sex in a child’s birth registration provided:

. the child’s birth is registered in Victoria; . the child consents to the alteration; . the parents believe on reasonable grounds that the alteration of the record ‘is in the best interests of the child’; and . the record of the child’s sex has not been altered in the preceding 12 months.

If the child is under 16 years of age, the child must have capacity to consent to the alteration (new section 30B(4)(c)(ii)). An application can also be made by one parent of guardian if they are the only surviving parent of the child, the sole parent named in the registration of the child’s birth or if the Court makes an order approving the alteration (new section 30BA(1)).

18 AHRC (2009) Sex Files: The Legal Recognition of Sex in Documents and Government Records, op. cit., p. 15. 19 Registrar of Births, Deaths and Marriages (NSW) v Norrie [2014] 250 CLR 490. 20 Norrie used the personal pronouns “she” and “her” during her case and this is reflected in the High Court judgment: Registrar of Births, Deaths and Marriages (NSW) v Norrie [2014] HCA 11, 3[11]. In a subsequent media article, Norrie expressed a preference for the Germanic “hir” (her/his) and “zie” (he/she): T. Elliott (2014) X marks the gender: what to call someone who isn’t a he or she, The Sydney Morning Herald, 2 April. 21 Registrar of Births, Deaths and Marriages (NSW) v Norrie [2014] HCA 11, 1[1].

4 Research Note | PARLIAMENTARY LIBRARY & INFORMATION SERVICE

Other Jurisdictions

All Australian jurisdictions, except the Australian Capital Territory, South Australia and Western Australia require evidence of surgical procedures for change of sex on birth certificates.22 The following two Tables, updated and adapted from the AHRC report, Sex Files, outline the process in other jurisdictions for requesting a change in sex noted on birth certificates or applying for a gender recognition certificate, as is the process in Western Australia and South Australia.

Table 1: Criteria for requesting a change in sex noted on birth certificate State/ Adults (18 Guardian of Relationship to Must be Must have Territory or over) children (under jurisdiction? unmarried? undergone can apply? 18) can apply? surgery* Australian Yes Yes Birth of person Yes23 No24 Capital must be Territory registered in ACT New South Yes Yes Birth of person Yes Yes Wales must be registered in NSW Northern Yes Yes Birth of person Yes Yes Territory must be registered in NT Queensland Yes Yes Birth of person Yes Yes must be registered in Qld Tasmania Yes Yes Birth of person Yes Yes must be registered in Tas Victoria Yes No Birth of person Yes Yes (current must be situation) registered in Vic OR be a resident of Vic who lives and has lived for 12 months in Vic Victoria Yes Yes Same as current No No (under situation proposed Bill) *To alter reproductive organs Source: Table adapted and updated from AHRC (2009) Sex Files, op. cit., p. 16.

The situation in South Australia and in Western Australia is slightly different. In both these jurisdictions, a person can apply to have a gender recognition certificate. After a person has received a gender recognition certificate, the person may present that certificate to the Registrar of Births who must then amend the sex noted on the birth certificate.

22 AHRC (2015) Resilient Individuals: Sexual Orientation Gender Identity & Intersex Rights 2015, op. cit., Table F, p. 51. 23 The legislation does not actually specify an applicant be unmarried. However, according to the AHRC’s report, the form which is used by the Australian Capital Territory Births Registrar, details that a person can only request a change in legal sex if they are unmarried: AHRC (2009) Sex Files: The Legal Recognition of Sex in Documents and Government Records, op. cit., p. 54, endnote 14. 24 This changed recently in 2014.

PARLIAMENTARY LIBRARY & INFORMATION SERVICE | Research Note 5

Table 2: Criteria for applying for a gender recognition certificate

State/ Adults Guardian of Relationship to Unmarried Undergone Undergone Territory can children jurisdiction surgery to a medical apply (under 18) ‘eliminate or surgical can apply ambiguity’ procedure* South Yes Yes Birth of person Yes Yes (if a Yes Australia must be registered child) in SA OR the surgery must have been conducted in SA Western Yes Yes Birth of person Yes Yes (if a Yes Australia must be registered child) in WA OR the surgery must have been conducted in WA OR the person must be a resident of WA *to ‘alter genitals or other sexual characteristics’ Source: Table adapted and updated from AHRC (2009) Sex Files, op. cit., p. 17. Commonwealth In 2011, the United Nations High Commissioner for Human Rights recommended that Member States facilitate ‘legal recognition of the preferred gender of transgender persons and establish arrangements to permit relevant identity documents to be reissued reflecting preferred gender and name…’.25 The Australian Government has been progressively moving towards this.

In 2013, the Australian Government developed Guidelines on the Recognition of Sex and Gender,26 following the AHRC’S recommendations in their report Sex Files.27 Amendments were also made in 2013 to the Sex Discrimination Act 1984 to provide further legal protections from discrimination on the grounds of gender identity and sexual orientation.

The Guidelines state that surgery and/or hormone therapy are not prerequisites for the recognition of a change of gender in Australian Government records.28 The Guidelines apply to all Australian Government departments and agencies, which were ‘expected to progressively align their existing and future business practices’ by 1 July 2016.29 The implementation of these Guidelines may include redesigning paper and electronic forms, diversity training for staff, providing additional options in gender classification (i.e. Indeterminate/Intersex/Unspecified) and not collecting sex and/or gender information unless it is necessary. The Guidelines state:

The Australian Government recognises that individuals may identify and be recognised within the community as a gender other than the sex they were assigned at birth or during infancy, or as a gender which is not exclusively male or female. This should be recognised and

25 United Nations High Commissioner for Human Rights (2011) Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity, report of the United Nations High Commissioner for Human Rights, United Nations, 17 November, p. 25[h]. 26 Australian Government, Attorney-General’s Department (2015) Australian Government Guidelines on the Recognition of Sex and Gender, Attorney-General’s Department website, July 2013 (updated November 2015) 27 AHRC (2009) Sex Files: The Legal Recognition of Sex in Documents and Government Records, op. cit. 28 ibid, p. 5. 29 ibid, p. 7.

6 Research Note | PARLIAMENTARY LIBRARY & INFORMATION SERVICE

reflected in their personal records held by Australian Government departments and agencies.30

The Guidelines also note that there are ‘legitimate reasons [that] people may hold conflicting documents’, such as a person who may ‘identify primarily as X’ but may want to hold a passport in a particular gender to ensure their safety when travelling overseas.31

Government departments and agencies have gradually aligned their practices to ensure that a change in gender can be recorded without the prerequisite of surgery. For example, an Australian passport can be issued to sex and gender diverse applicants. The Passport Office requires a statement by a medical practitioner to ‘support the applicant’s gender change’ (including to intersex or indeterminate sex).32 A person can change their Medicare Record by providing one of a list of documents, including a statement from a registered medical practitioner or psychologist.33 From July 2016, the option to record sex as ‘Indeterminate’ in a person’s Australian Taxation Office’s record is available.34

Australian Capital Territory In March 2014, the Australian Capital Territory (ACT) passed amendments to the Births, Deaths and Marriages Registration Act 1997 (ACT) to eliminate the requirement for surgery in order for individuals to change their sex on their ACT birth certificates. Part 4 section 24(1) of the Births, Deaths and Marriages Registration Act 1997 states:

(1) A person may apply to the registrar-general for alteration of the record of the person’s sex in the registration of the person’s birth if—

(a) the person is at least 18 years old; and

(b) the person’s birth is registered in the ACT; and

(c) the person believes their sex to be the sex nominated in the application (the altered sex), and—

(i) has received appropriate clinical treatment for alteration of the person’s sex; or

(ii) is an intersex person.

Section 24(2) provides for parents or a person with parental responsibility for a child to apply for an alteration of the record of the child’s sex where the person ‘believes on reasonable grounds that the alteration of the record… is in the best interests of the child’. Similar provisions as in s 24(1) are set out in s 24(2) to ensure that the child’s birth is registered in the ACT and that the child receives appropriate clinical treatment for alteration of the child’s sex or the child is an intersex person.

Section 25 sets out evidence in support of an altered sex application including a statement by a doctor, or a psychologist, certifying that the person has received appropriate clinical treatment for alteration of the person’s sex (s 25(1)(a)(i)) or the person is an intersex person (s 25(1)(a)(ii)).

30 ibid, p. 3. 31 ibid, p. 6. 32 Department of Foreign Affairs and Trade, Statement under the Australian Passports Act 2005, Application for an Australian Travel Document. Declaration: Gender Change in Travel Document (Form B-14), DFAT website. 33 Department of Human Services (2016) ‘Update your personal details on a Medicare card: Change your gender’, DHS website, last updated 16 August. 34 Australian Taxation Office (2016) ‘Update your gender’, ATO website, last updated 1 July.

PARLIAMENTARY LIBRARY & INFORMATION SERVICE | Research Note 7

Western Australia Western Australia has a Gender Reassignment Board which ‘deals with matters relating to a person’s reassigned gender’ under the Gender Reassignment Act 2000 (WA). A person who has undergone a gender reassignment procedure can apply for a Recognition Certificate to have ‘their new gender legally recognised’.35 The Act defines a ‘reassignment procedure’ to mean ‘a medical or surgical procedure (or a combination of such procedures) to alter the genitals and other gender characteristics of a person…’ (s 3). A recognition certificate cannot be issued to a person who is married.

In compliance with section 15(1)(b) of the Gender Reassignment Act 2000, the Board must be 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.

If an application is unsuccessful, a person can apply for a review of the Gender Reassignment Board’s decision to the State Administrative Tribunal. As stated in section 16, a recognition certificate is ‘conclusive evidence’ that the person to whom it refers has undergone a reassignment procedure and is of the sex stated in the certificate. The applicant may then apply to the Registrar for a new birth certificate after one month.

The Registrar is empowered to correct the register through section 51 of the Births, Deaths & Marriages Registration Act 1998 (WA). Section 17 of the Gender Reassignment Act 2000 states that if a recognition certificate is produced to the Registrar, the Registrar must register the reassignment of gender and make such other entries and alterations on any register or index as may be necessary in view of the reassignment.

AH & AB v the State of Western Australia The case of AH & AB v the State of Western Australia36 concerned two transsexual men who had undergone double mastectomies and hormone treatment but were unable to obtain a recognition certificate as they ‘retained some female sexual organs’.37 Both appellants believed that there were male from childhood. They had been diagnosed as suffering gender dysphoria and had received counselling but had decided against undergoing hysterectomies or a phalloplasty due to many reasons, including the risks involved and the low rate of success.38

The Australian Human Rights Commission submitted that the Court of Appeal’s decision was inconsistent with the overarching purpose of the Gender Reassignment Act 2000 (WA) which is to eliminate discrimination.

The High Court’s unanimous decision to overturn the earlier decision (with the result being that both appellants were granted recognition certificates) turned on the statutory construction of the Gender Reassignment Act 2000. The High Court’s decision, according to the Australian Human Rights

35 Department of the Attorney General, ‘Gender Reassignment Board’, Court and Tribunal Services, Department of the Attorney General website, last updated 28 January 2016. 36 AB v State of Western Australia & Anor (2011) P15; AH v State of Western Australia & Anor P 16 HCA 42. 37 High Court of Australia, AB v State Of Western Australia & Anor P15/2011; AH v State Of Western Australia & Anor P16/2011 [2011] HCA 42, judgement summary, 6 October 2011, High Court of Australia. 38 AB v State of Western Australia & Anor (2011) P15; AH v State of Western Australia & Anor P 16 HCA 42, 6[15].

8 Research Note | PARLIAMENTARY LIBRARY & INFORMATION SERVICE

Commission, ‘supports the view that surgery to fully remove and construct genitalia is not required in order for community members to identify a person as a man or woman in their daily lives’.39 The High Court also emphasised that the purpose of legislation which protects or enforces human rights must be given a ‘fair, large and liberal’ interpretation.

The AHRC recommended, in line with the High Court case of AH & AB v the State of Western Australia, that all states and territories legislate to require that a self-identified legal declaration, such as a statutory declaration, be sufficient proof to change a person’s gender for the purposes of government records.40

South Australia In South Australia, an application must be made to the Magistrates Court of South Australia for the issuing of a Recognition Certificate. Similar to the process of the Gender Reassignment Board in Western Australia, the Magistrate must be satisfied that the person believes that his or her sex is the sex to which the person has been reassigned; that the person has adopted the lifestyle and has the sexual characteristics of the reassigned sex and that the person has received proper counselling (s 7(8)(b)).

These certificates can only be issued in South Australia if the reassignment procedure was carried out in South Australia or if the birth of the person is registered in South Australia (Sexual Reassignment Act 1988 s 7). Like Western Australia, the South Australian Act states that a recognition certificate is ‘conclusive evidence’ that the person has undergone a reassignment procedure and is of the sex stated in the certificate (s 8).

A reassignment procedure refers to a medical or surgical procedure (or a combination of both) ‘to alter the genitals and other sexual characteristics of a person’ (Sexual Reassignment Act 1988 s 3). Certificates cannot be issued to a person who is married.41 The Registrar’s power to correct the Register is in section 42 of the Births, Deaths & Marriages Registration Act 1996 (SA).

In February 2016, the South Australian Law Reform Institute released a report which recommended the repeal of the Sexual Reassignment Act 1988 (SA) and that South Australia establish a system that allows adults to change their registered sex or gender by a simple application to the Office of Births, Deaths and Marriages.42 New South Wales Provisions related to applications to alter the register to record change of sex are contained in Part 5A (s 32B) of the Births, Deaths & Marriages Registration Act 1995 (NSW). As noted above, the High Court case of Registrar of Births, Deaths and Marriages (NSW) v Norrie [2014] 250 CLR 490 permitted the NSW Registrar to register a person’s sex as ‘non-specific’.43 The requirement that an applicant be unmarried and have undergone sex reassignment surgery are still prerequisites (s 32B). Furthermore, an application under section 32B must be accompanied by statutory declarations by two doctors verifying that the person has undergone a sex affirmation procedure (s 32C(a)) and ‘such other documents or information as may be prescribed by the regulations’ (s 32C(b)).44 A Registrar cannot change the record of a person’s sex if the person is married (ss 32B(1)(c); 32DC).

39 AHRC (2015) Resilient Individuals: Sexual Orientation Gender Identity & Intersex Rights 2015, op. cit., p. 52. 40 ibid., p. 3. 41 Sexual Reassignment Act 1988 s 10. 42 South Australian Law Reform Institute (2016) LGBTIQ Discrimination in Legislation: Legal Registration of Sex and Gender and Laws Relating to Sex and Gender Reassignment, Adelaide, SA Law Reform Institute. 43 Registrar of Births, Deaths and Marriages (NSW) v Norrie [2014] 250 CLR 490. 44 Such as documentary proof of the identity of the person (Births, Deaths and Marriages Registration Regulation 2011 cl. 9).

PARLIAMENTARY LIBRARY & INFORMATION SERVICE | Research Note 9

Queensland Sections 22-23 of the Births, Deaths & Marriages Registration Act 2003 (Qld) provide for an application to be made to note a reassignment of sex after sexual reassignment surgery, provided the person is not married. An application must be accompanied by either statutory declarations by two doctors verifying that the person has undergone sexual reassignment surgery or a recognition certificate (s 23(4)(b)). According to the dictionary in Schedule 2, a recognition certificate means ‘a certificate issued under the law of another State that identifies the person’ has undergone sexual reassignment surgery and is the sex stated in the certificate. The Registrar’s powers to correct the register are in section 42. Tasmania In Tasmania, it is a requirement that a person seeking to change their sex on the Register must have undergone sexual reassignment surgery and must not be married. The provisions relating to the registration of a change of sex are contained in Part 4A of the Births, Deaths & Marriages Registration Act 1999 (Tas). Section 28B of that Act states that an application to register a change of sex must be accompanied by a statutory declaration from two medical practitioners verifying that the person has undergone sexual reassignment surgery and ‘any other document or information that the Registrar requires’. The Registrar is empowered to make inquiries ‘as he or she thinks fit to inform himself or herself as to whether the person has undergone sexual reassignment surgery’ (s 28C(2)(B)). Northern Territory Section 28B of the Births, Deaths & Marriages Registration Act 2005 (NT) provides for the Registrar to change the record of a person’s sex if ‘satisfied that the sex of the person whose birth is registered in the Register has been changed’ (s 28D(1)). In considering whether to ‘note the particulars of a change of sex’ the Registrar may require the person to provide further particulars or may ‘make such inquiries, if any, as he or she thinks fit to inform himself or herself as to whether the person has changed his or her sex’ (s 28D(2)).

The applicant must not be married (ss 28D(3); 28B(1)(c)) and must have undergone sexual reassignment surgery (s 28B(1)(b)). The application must be accompanied by ‘the prescribed evidence, if any, that verifies that the adult or child the subject of the certificate has undergone sexual reassignment surgery’, in addition to any other documents or information that the Registrar requires (s 28C).

10 Research Note | PARLIAMENTARY LIBRARY & INFORMATION SERVICE

Further Resources

Media release: . Birth certificates to reflect true identity / M. Pakula, Attorney-General, media release, 18 August 2016 . Birth Certificates Reforms a Step Forward for Transgender Equality / Human Rights Law Centre, media release, 18 August 2016

News articles: . Victoria passes legislation allowing gender identity change on birth certificates / Lander & Rogers Lawyers, news, 19 August 2016 . Gender-diverse Victorians to be given greater freedom to change birth certificates / M. Davey, The Guardian, 18 August 2016 . Gender diverse win right to new birth certificate / N. Bucci, The Age, 18 August 2016 . New Victorian law will create same-sex marriages / B. Hall, The Age, 18 August 2016 . Transgender people could change birth certificates / T. Jacks, The Age, 7 April 2016 . Transformers: The unique challenge of changing gender within a relationship / B. Law, The Sydney Morning Herald, 7 March 2015 . I still love her, we can stay married: The Senator and her transgender wife / S. Anderson, SBS News, 7 February 2015 . When Albert met Ann: 'Ridiculous' marriage laws force transgender divorce / M. Perkins, The Age, 28 December 2014 . Neither man nor woman: Norrie wins gender appeal / P. Bibby & D. Harrison, The Sydney Morning Herald, 2 April 2014 . X marks the gender: what to call someone who isn’t a he or she / T. Elliott, The Sydney Morning Herald, 2 April 2014 . Transgender people will be able to alter birth certificates’/ K. Lawson, Canberra Times, 17 March 2014 (ACT legislation)

Legislation: • Births, Deaths and Marriages Registration Act 1997 (ACT) • Births, Deaths and Marriages Registration Amendment Bill 2013 (ACT) o Explanatory statement o Compatibility statement • Births, Deaths & Marriages Registration Act 1995 (NSW) • Births, Deaths & Marriages Registration Act 2005 (NT) • Births, Deaths & Marriages Registration Act 2003 (Qld) • Births, Deaths & Marriages Registration Act 1996 (SA) • Births, Deaths & Marriages Registration Act 1999 (Tas) • Births, Deaths and Marriages Registration Act 1996 (Vic) • Births, Deaths and Marriages Registration (Amendment) Act 2004 (Vic) • Births, Deaths and Marriages Registration Amendment Bill 2016 (Vic) o Second Reading o Explanatory Memorandum o Statement of Compatibility • Births, Deaths & Marriages Registration Act 1998 (WA) • Gender Reassignment Act 2000 (WA) • Marriage Act 1961 (Cth) • Sex Discrimination Act 1984 (Cth) • Sexual Reassignment Act 1988 (SA)

PARLIAMENTARY LIBRARY & INFORMATION SERVICE | Research Note 11

Cases: • Registrar of Births, Deaths and Marriages (NSW) v Norrie [2014] HCA 11; 250 CLR 490 • AB v State of Western Australia & Anor (2011) P15; AH v State of Western Australia & Anor P 16 HCA 42; 244 CLR 390.

Documents: . Resilient Individuals: Sexual Orientation Gender Identity & Intersex Rights 2015 / Australian Human Rights Commission, 2015 . Australian Government Guidelines on the Recognition of Sex and Gender / Australian Government, July 2013 (updated November 2015) . Platform 2014 / Victorian Labor election policy . Transgender and gender diverse health and wellbeing / Department of Health, background paper, 2014 . Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity / United Nations High Commissioner for Human Rights, report of the United Nations High Commissioner for Human Rights, United Nations, 17 November 2011 . Addressing sexual orientation and sex and/or gender identity discrimination: Consultation Report / Australian Human Rights Commission, 2011 . Sex Files: the legal recognition of sex in documents and government records / Australian Human Rights Commission, 2009

Websites: . Births, Deaths and Marriages website . Transgender Victoria website . LGBTI Taskforce and Health and Human Services Working Group, Department of Health website . A Gender Agenda website . Gender Reassignment Board website (Western Australia)

12 Research Note | PARLIAMENTARY LIBRARY & INFORMATION SERVICE

Research & Inquiries Service

Research Notes are produced by the Parliamentary Library’s Research & Inquiries service. They provide analysis on selected components of new Bills and topical issues in response to, and in anticipation of, the needs of Members of the Victorian Parliament.

This research publication is current as at the time of printing. It should not be considered a complete guide to the particular subject or legislation covered. While it is intended that all information provided is accurate, it does not represent professional legal opinion. Any views expressed are those of the author(s).

Some hyperlinks may only be accessible on the Parliament of Victoria's intranet. All links are current and available as at the time of publication.

Author Rachel Macreadie Research & Inquiries Officers Victorian Parliamentary Library & Information Service Department of Parliamentary Services

Enquiries: Jon Breukel Coordinator, Research & Inquiries Victorian Parliamentary Library & Information Service Parliament House Spring Street, Melbourne Telephone (03) 9651 8633 Email: [email protected]

© 2016 Parliamentary Library & Information Service, Department of Parliamentary Services, Parliament of Victoria With the exception of any copyright that subsists in a third party, this publication is licensed under a Creative Commons 3.0 Attribution-NonCommercial-NoDerivs licence.