Australian Human Rights Commission Proposal

The original is at the HRC's Human Rights Blog. I'm quoting it in full here because, quite frankly, my blog has more exposure, worldwide. And I think people outside Australia should know about this:


Introduction

The Commission’s Sex Files project was established to conduct research and consult with the sex and gender diverse community in Australia on the issue of legal recognition of sex in documents and government records.

During the Commission’s project, members of the sex and gender diverse community raised concerns about the legal recognition of sex, particularly in relation to the ability of a person to change the sex recorded on their birth certificate. The Commission has been told that a desire to identify legally as a particular sex may be due to psychological sex or gender identity reasons.

This document outlines proposed reform to the legal recognition of sex in Australia. Its purpose is to stimulate discussion and input to assist in shaping the Commission’s reform agenda in relation to legal recognition of sex. The Commission will also seek further input from the sex and gender diverse community on the details of the proposed reform in due course.

What is the identification system in Australia and how does it effect people who are sex or gender diverse?

Australia has a common framework for confirming and protecting the identity of its citizens. This framework classifies types of official documentation as evidence of a person’s identity. Information about sex or gender is an important component of a person’s identity. Most official documents and records contain information about a person’s sex. However, some documents and records contain information about gender not sex.

The most important identity documents are known as cardinal documents, which are seen as the most trusted evidence of identity and citizenship. Usually cardinal documents contain information about a person’s sex. For persons born in Australia, cardinal documents are birth certificates or name change certificates. For persons not born in Australia, cardinal documents are citizenship certificates or the information contained in the database held by the Department of Immigration and Citizenship.

People who are sex or gender diverse may seek to change the information that is recorded on these cardinal documents and records. Once those cardinal documents are changed, a cardinal document can be used to amend the sex or gender noted on other documents and records.

However, there are currently some significant limitations. Reform of the process for changing cardinal documents and other related areas dealing with gender-identifying documents and records would enhance the rights of the sex or gender diverse community to identify as a particular sex.

What is the current system for changing information on cardinal documents?

The current system by which a person can amend a cardinal document will depend on whether that person was born in Australia or elsewhere. Changing a cardinal document is important as it provides an official identity and enables the alteration of other documents and records.

For a person born in Australia, state and territory legislation enables a person to change their legal sex on their birth certificate if they satisfy certain criteria. Different processes exist depending on the state or territory, although throughout Australia certain categories of people who are sex and gender diverse are excluded from accessing those processes.

For a person not born in Australia, the process for changing information on a citizenship certificate or in immigration records will depend on several factors. Some of those factors include when and where the person underwent sex affirmation surgery.

The current system generally excludes:

• married persons
• persons who have not undergone genital surgery or other sex affirmation surgery
• persons who have undergone genital or other sex affirmation surgery overseas
• children and young people under 18, and
• persons who wish to be identified as intersex.

The key reform features for the legal recognition of sex

In order for persons to legally identify as a particular sex, several reforms to the current system for altering documents and records would be useful. The main focus of the reform is to ensure that cardinal documents and records can be altered to appropriately reflect the sex with which the person identifies.

The key features of the reform proposal being developed by the Commission are as follows:

1. Married persons: a person’s status as married would not impact on whether a person can request a change in sex.
2. Persons who have not undergone sex affirmation surgery: a person who cannot or chooses not to undergo surgery would not be automatically ineligible to request a change in their legal sex. ^{Note 1}
3. Persons who undergo sex affirmation surgery overseas: a person who undergoes sex affirmation surgery overseas would be able to have that change appropriately recognised, without necessarily requiring supporting documentation from the overseas surgeon who performed the procedure.
4. Children and young people: children, young people and their parents would be able to seek a birth certificate and passport that match the identity of the child or young person.
5. Recognition of intersex: persons who cannot or do not identify as either male or female would be able to choose to be identified on their birth certificate and passport as intersex.
6. Centralised and uniform system: a central body would be created with the function of co-ordinating and facilitating changes of sex in official documents and records. In addition, or in the alternative, state, territory and federal processes would be made consistent in order for persons who seek to identify as a particular sex to be treated equally.
7. Clarity in definitions: current Australian law uses different terminology and definitions for persons who require their sex to be legally recognised. There is debate regarding the meaning of terminology such as transsexual, transgender and intersex. Reform would focus on the process for changing legal sex rather than seeking to define persons. This will promote a more inclusive system. ^{Note 2}

Who would be able to request a change in sex under the proposed system?

Under the proposed reform, a request for a change in sex could be made by a person who:

• is 18 or above, and
• is an Australian citizen or permanent resident of Australia, and
• has undergone or is undergoing ‘sex affirmation treatment’, and
• seeks to be permanently recognised as another sex.

Under the proposed reform, the parent(s) of a child or the guardian of a child could also make a request for a change in sex on behalf of a child who:

• is under 18, and
• is an Australian citizen or permanent resident of Australia, and
• has undergone or is undergoing ‘sex affirmation treatment’, and
• seeks to be permanently recognised as another sex.

The definition of ‘sex affirmation treatment’ under the proposed reforms would mean a surgical procedure or medical treatment to alter the sexual characteristics of a person. Alteration of genitals or reproductive organs would not be required to satisfy this definition.

Will the proposed system provide for an option to identify as intersex?

Under the proposed reforms a request to be indentified as intersex could be made by a person who:

• is an Australian citizen or permanent resident of Australia, and
• seeks to be permanently recognised as intersex.

The definition of ‘sex’ in the proposed reforms would mean the attribute of male, female or intersex.

Who would determine whether a change in sex is accepted under the proposed system?

The preferred model would include the establishment of a national board as part of the proposed reforms.

Appropriate appointments to the board could be outlined in legislation. For example, legislation could provide that the board include a person with a transsexual or intersex condition and a medical specialist working in the area of sex and gender diversity.

Legislation would provide the national board with functions to liaise with other departments to change records, including state/territory birth registries and to provide advice and publicly available information about the policies and procedures concerning the legal recognition of sex. The board would also have the function of receiving and determining applications for official recognition of a change in sex.

If a national board is not created, a uniform scheme could still operate with determinations about sex made by state/territory births registries ^{Note 3} , state/territory magistrate courts ^{Note 4} or a specialist board established at the state/territory level ^{Note 5}.

What documents would be required to support a request for a change in sex under the proposed system?

Legislation would outline what documents are needed to support the request of a change in sex under the proposed reforms.

For example, legislation could state that a request for a change in sex must be supported by:

• one statutory declaration by a doctor or medical practitioner stating that a person has undergone or is undergoing sex affirmation treatment, and
• one statutory declaration from the person requesting the recognition of sex that they identify as a particular sex and intend to do so permanently. In the case of a child and depending on the age of the child, the legislation could stipulate that the parent(s) or guardian must make a statutory declaration in relation to the child’s desire to identify as particular sex.

Legislation could also outline different supporting documents for a request to identify as intersex.


How would documents and records other than cardinal documents be changed under the proposed system?

The national board as described above would be tasked with assisting the alteration of other documents and records.

The national board could also advise on inconsistent policies and procedures and any future reform if necessary.


How would the proposed reforms be implemented?

In order to support these reform features, a combination of legislative and policy reform would be necessary. Harmonisation of state, territory and federal systems would also be required to ensure that the systems were consistent and streamlined.
Legislative reform could occur either through the enactment of federal legislation or by uniform state/territory legislation.

Notes:

1. The Commission notes that views and opinions vary on the necessity of surgery to request a legal reassignment of sex. The Commission has heard from people who require or required psychological and anatomical harmony achieved through surgery to alleviate their condition. For others surgery is not required for a person to live, identify and present as a particular sex. The Commission acknowledges that access to affordable sex affirmation treatment is of concern to many in the sex and gender diverse community. The Commission also believes that a person who genuinely lives as a member of a particular sex should not be prevented from legal recognition on the basis that they have not undergone genital or reproductive surgeries alone.

2. Much of the research and consultation conducted by the Commission during the sex and gender diversity project has focused on the issue of terminology. The Commission will use this research to determine the use of affirmative language in any reform proposals.

3. As currently occurs in some states/territories in Australia.

4. As currently occurs in South Australia.

5. State/territory specialist boards could be modelled on the existing Western Australian Gender Recognition Board.

Comment

Australia has a Constitution that borrows heavily from the US model. It is a Federation of States and Territories, each with their own legislative framework. The main difference is that Marriage is a Commonwealth (ie Federal) issue, not a State one.

This document could be useful as a framework for a similar home-grown made-in-the-USA solution.