Wednesday, 23 August 2006

Sometimes you win, and sometimes...

A recent decision by the Victorian division of the Federal Court was a bit of a blow.

The case is FCA 1071 AB vs Registrar of Births, Deaths and Marriages.

1 The applicant was born in Victoria in 1944. The applicant’s birth was registered in the Victorian Registry of Births, Deaths and Marriages with male given names and the sex recorded as male.
2 In 1967 the applicant married a woman. They remain married but live separately.
3 The applicant changed her given names to female names and on 31 March 2000 was issued with a new birth certificate under Pt 4 of the Births, Deaths and Marriages Registration Act 1996 (Vic) (the BDM Act). The certificate showed the new female given names, and not the former male given names, but still recorded the sex as male.
4 On 20 April 2002 the applicant completed the surgical phase of sex affirmation surgery. This involved the alteration of the applicant’s reproductive organs for the purpose of assisting the applicant to be considered a member of the female sex.
5 The applicant subsequently applied to the Registrar of Births, Deaths and Marriages for alteration of the record of her sex in the birth register.
6 The Registrar stated that she could not proceed with the application because the applicant was married and thus did not meet the criteria of ss 30A(1) and 30C(3) of the BDM Act.
7 The applicant seeks, under s 46PO of the Human Rights and Equal Opportunity Act 1986 (Cth), a declaration that the Registrar has unlawfully discriminated against her and an order that the Registrar alter the record of the applicant’s sex in her birth registration. Compensation in the agreed sum of $1000 is sought. A claim for an apology is no longer pursued.
8 The parties agree that the Court should decide the following question:
"Was the refusal of the Registrar to consider on its merits the application to alter the record or to alter the record of the applicant’s sex in the applicant’s birth registration an act which constituted unlawful discrimination on the ground of marital status within the meaning of s 22 of the Sex Discrimination Act 1984 (Cth)?"
It was held that the Commonwealth Law on the subject of discrimination due to Marital Status derived from it's External Treaties power under the Australian Constitution. Basically, the Federal Government has no powers to make any anti-Discrimination law unless it is to cause the country to conform with an external treaty, in this case, a UN convention on women's rights.

Any law that discriminates against both married men and married women, or against both unmarried men and unmarried women, was deemed not to be covered by the UN convention, and hence, the Commonwealth law, no matter what it said, has no power.

The upshot is the absurdity that the woman in question remains legally a man (or at least, that's what it says on her birth certificate), just as long as she's married. Should she divorce, then magically her status changes, and the birth certificate can be changed.

Similar laws are in effect in all territories and states of Australia. The Australian Capital Territory's Legislative Assembly tried to change its own law, but the Federal Cabinet disallowed that, along with the rest of the Civil Union legislation of which it was a small part.


You know, transition is hard enough without this kind of thing.


Anonymous said...

Remember: The law is only as good as those who enforce it. I wish you luck finding good people.


toa said...

Remember: The law is only as good as those who enforce it. I wish you luck finding good people.