The Gender Recognition Act 2004 is an Act of the Parliament of the United Kingdom that allows people having gender dysphoria to change their legal gender. It came into effect on 4 April 2005.
Operation of the law
The Act gives people with gender dysphoria legal recognition as members of the sex appropriate to their gender (male or female) allowing them to acquire a new birth certificate, affording them full recognition of their acquired sex in law for all purposes, including marriage. The two main exceptions are a right of conscience for Church of England clergy (who are normally obliged to marry any two eligible people by law), and that the descent of peerages will remain unchanged. Additionally, sports organisations are allowed to exclude transsexual people if it is necessary for 'fair competition or the safety of the competitors'.
People present evidence to a Gender Recognition Panel, which considers their case and issues a Gender Recognition Certificate. If the person involved is in a legally recognised marriage they will be issued an 'Interim Gender Recognition Certificate', which for a limited period can then be used as grounds for annulment of the marriage, but otherwise has no status. After annulment, a full Certificate will be issued.
The Act requires applicants to have transitioned two years before a certificate is issued. It makes no requirement for sex reassignment surgery to have taken place, although such surgery will be accepted as part of the supporting evidence for a case where it has taken place. There was a six-month period from 4 April 2005 until 3 October 2005, where only people who transitioned six or more years previous could apply. Additionally, for two years following implementation of the Act, those who transitioned six years or more previous to application for a gender recognition certificate were required to supply a lesser level of evidence, as such people were likely to have problems in obtaining some of the documentary evidence that would be required of those who had transitioned later. There is also a mechanism whereby those who have obtained legal recognition in recognised overseas jurisdictions may obtain recognition under the Gender Recognition Act with much reduced evidence requirements; such applicants are not required to have transitioned two years before nor to be resident overseas. Successful applicants are entered onto a Gender Recognition Register, held by the registrar general, similar in operation to the Adoptions Register for those who have been adopted.
A Birth Certificate drawn from the Gender Recognition Register is now indistinguishable from any other birth certificate, and will indicate the new legal sex and name. (Due to flaws in the original Act, many birth certificates issued during the first seven years of operation could be distinguished, for instance by the omission of the Informant field. These issues were corrected by the Gender Recognition Register (Amendment) Regulations 2011.) It can be used wherever a birth certificate is used, such as for issue of a passport. The birth certificate showing the previous legal gender continues to exist, and will carry no indication that there is an associated Gender Recognition Certificate or alternative birth certificate. Certain authorised agencies, with court permission, may have access to the Gender Recognition Register showing the links between these certificates, but the link will be invisible to the general public. This is the same way that birth certificates drawn from the Adoption Register work.
See also: Christine Goodwin and Goodwin & I v United Kingdom
The Act was drafted in response to court rulings from the European Court of Human Rights.
The previous precedent dated back to 1970, when Arthur Cameron Corbett, 3rd Baron Rowallan had his marriage annulled on the basis that his wife, April Ashley, being a trans woman, was legally male. This argument was accepted by the judge, and the legal test for gender in the UK had been since been based on the judgement in Corbett v Corbett; it had even led to the curiosity of a legal marriage between two lesbians since one had been born male.
The European Court of Human Rights ruled on 11 July 2002, in Goodwin & I v United Kingdom, (a.k.a. Christine Goodwin & I v United Kingdom  2 FCR 577), that "the UK Government had discriminated based on the following : Violation of Article 8 and Article 12 of the European Convention on Human Rights". Following this judgement, the UK Government had to introduce new legislation to comply.
The bill was introduced in the House of Lords in late 2003. It was passed by the House of Lords on 10 February 2004, with 155 votes in favour and 57 against. The House of Commons passed it on 25 May. It received Royal Assent on 1 July 2004.
The bill faced criticism in the House of Lords, including a wrecking amendment from Lord Tebbit (who has described sex reassignment surgery as "mutilation"), and from Baroness O'Cathain, who introduced an amendment to allow religious groups to exclude transsexual people. However, this amendment was narrowly defeated after opposition from Peter Selby, Bishop of Worcester, and Michael Scott-Joynt, Bishop of Winchester.
Support for the bill in the House of Commons was split broadly down party lines. At both the second and third readings (i.e. before and after amendments), all Labour Party, Liberal Democrat, Plaid Cymru and Scottish National Party votes were in favour of the bill; all Ulster Unionist and Democratic Unionist Party votes were against.Conservative Party MPs were split on the issue, and the party leadership did not issue a whip mandating MPs to take a particular stance on the bill, instead allowing its MPs a free vote. 25 Conservative MPs voted in favour and 22 against the bill at its second reading, and 20 voted in favour and 39 voted against the bill at its third reading. Less than half of the Conservative Party's 166 MPs participated in either vote. Among those who voted against the bill were Ann Widdecombe (who opposed it on religious grounds), Dominic Grieve, Peter Lilley and Andrew Robathan. Among Conservative MPs who supported the bill were Kenneth Clarke, Constitutional Affairs spokesman Tim Boswell, and future speaker John Bercow.
In November 2017, the Scottish government published its review of the GRA with intentions to reform it "so that it is in line with international best practice." The "Ministerial Foreword" to the review acknowledges that the 2004 GRA is "out of date" and places "intrusive and onerous" requirements on the person applying for the gender change. The government recommends keeping the existing requirements for applicants to declare that "they fully understand the implications of their application and intend to live in their acquired gender for the rest of their lives" but proposes eliminating the requirement "to provide medical evidence and to have lived in their acquired gender for two years before applying."
Concerns regarding marriages and civil partnerships
This section needs to be updated. Please update this article to reflect recent events or newly available information.(November 2013)
Concerns about the act have been raised by supporters of transsexual rights, particularly regarding marriages and civil partnerships. The act required people who are married to divorce or annul their marriage in order for them to be issued with a Gender Recognition Certificate but this is to change with effect from 10 December 2014, from which date a gender recognition certificate may be granted while still in an existing marriage. In both England and Wales, and Scotland, such an application from a married person will require written consent from the spouse - the so-called spousal veto. However, applicants in Scotland benefit from a workaround, where it is possible for applicants in Scotland to apply to the sheriff court to have their interim GRC replaced with a full GRC, bypassing the "spousal veto". Some parliamentarians, such as Evan Harris, viewed the original requirement as inhumane and destructive of the family. MP Hugh Bayley said in the commons debate "I can think of no other circumstance in which the state tells a couple who are married and who wish to remain married that they must get divorced". Despite this opposition, the government chose to retain this requirement of the Bill. Parliamentary Under-Secretary for Constitutional Affairs, David Lammy, speaking for the Government, said ‘"it is the Government's firm view that we cannot allow a small category of same-sex marriages"
Although the Civil Partnership Act 2004 allows the creation of civil partnerships between same sex couples, a married couple that includes a transgender partner cannot simply re-register their new status. They must first have their marriage dissolved, gain legal recognition of the new gender and then register for a civil partnership. This is like any divorce with the associated paperwork and costs. Once the annulment is declared final and the GRC issued, the couple can then make arrangements with the local registrar to have the civil partnership ceremony. The marriage is ended and a completely new arrangement brought into being which does not in all circumstances (such as wills) necessarily follow on seamlessly. This is also true for civil partnerships that includes a transgender partner, which the existing civil partnership must be dissolved and the couple can enter into a marriage afterward. For a couple in a marriage or civil partnership where both partners are transgender, they can have their gender recognition applications considered at the same time, however they are required to dissolve their existing marriage/civil partnership and then re-register their marriage/civil partnership with their new genders.
Tamara Wilding of the Beaumont Society pressure group said that it was "not fair that people in this situation should have to annul their marriage and then enter a civil partnership. The law needs tidying up. It would be easy to put an amendment in the civil partnership law to allow people who have gone through gender-reassignment, and want that to be recognised, to have the status of their relationship continued." As discussed above parliament has already chosen not to do this, a legal viewpoint supported by others, such as barrister Karen Brody, who have argued that a change in the law isn't necessary. From a legal perspective this may be true as most of the benefits of marriage are available to the couple under a Civil Partnership. However, the emotional stress caused is immeasurable as in the case of a Scottish couple.
The Equality and Human Rights Commission (EHRC) appreciates the challenges to married transsexual people and their partners presented by Schedule 2 of the Act and in a recent submission to government they recommend
“The government amends the Gender Recognition Act to allow for the automatic conversion of a marriage into a civil partnership upon one member of the couple obtaining a gender recognition certificate”.
- ^The citation of this Act by this short title is authorised by section 29 of this Act.
- ^Example of a Gender Recognition CertificateArchived 6 January 2009 at the Wayback Machine.
- ^Example of an Interim Gender Recognition CertificateArchived 6 January 2009 at the Wayback Machine.
- ^"Gender Recognition Bill: House of Commons Second Reading". The Public Whip. My Society. Archived from the original on 3 February 2010. Retrieved 2 February 2010.
- ^"Gender Recognition Bill". The Public Whip. My Society. 30 April 2005. Archived from the original on 3 February 2010. Retrieved 3 February 2010.
- ^ abCowley, Philip; Mark Stuart (19 November 2004). "Mapping Conservative Divisions Under Michael Howard"(PDF). Revolts.co.uk. Archived from the original(PDF) on 3 February 2010. Retrieved 2010-02-03.
- ^"Gender Recognition Bill: House of Commons Second Reading". Press For Change. Archived from the original on 2 February 2010. Retrieved 2010-02-02.
- ^"Review of the Gender Recognition Act 2004 (9 Nov 2017)". Scottish Government (Riaghaltas na h-Alba). Retrieved 22 January 2018.
- ^"Ministerial Foreword to the Review of the Gender Recognition Act 2004 (4 November 2017)". Scottish Government (Riaghaltas na h-Alba). Retrieved 22 January 2018.
- ^Till Political Convenience Do Us Part; Christine Burns
- ^See the Honourable Dr. Harris, House of Commons Standing Committee A, 9 March 2004, Col 60. - https://publications.parliament.uk/pa/cm200304/cmstand/a/st040309/pm/40309s09.htm
- ^The Honourable Hugh Bayley, House of Commons 2nd Reading 23 February 2004, Col. 60; the Honourable Andrew Selous, House of Commons 2nd Reading 23 February 2004, Col. 64
- ^The Honourable David Lammy, House of Commons Standing Committee A, 9 March 2004, Col. 69. It was suggested in the debates that the number of transgender people who have undertaken gender reassignment and who are currently living in a marriage was no more than 200.(the Honourable Mr. Oaten, House of Commons 2nd Reading 23 February 2004, Col. 69)
- ^Levy, Andrew (1 May 2008). "Transsexual husband annuls marriage and enters into civil partnership with wife to keep pension benefits". Mail Online. Associated Newspapers Ltd. Retrieved 2008-09-06.
- ^Fracassini, Camillo (30 October 2005). "Sex-change couple seek marriage recognition". Times Online. London. Retrieved 2008-09-07.
- ^Submission on the United Kingdom's sixth periodic report under the International Covenant on Civil and Political RightsArchived 2 October 2008 at the Wayback Machine.
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.[footnote 1] In his Second Reading Speech, the Attorney-General Martin Pakula stated that the Bill is 'in line with the principle of self-declaration'.[footnote 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.[footnote 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;
· 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.
Part 4A of the Births, Deaths and Marriages Registration Act 1996 (Vic) titled 'Recognition of Sex (Transsexualism)' was inserted through amendments in 2004.[footnote 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'.[footnote 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.[footnote 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…'.[footnote 7]
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.[footnote 8]
Last year, several media outlets reported on the challenges of changing gender within a relationship, particularly on the partners of transgender individuals.[footnote 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.[footnote 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.[footnote 11]
In their report Sex Files, the AHRC recommended that '[footnote 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).[footnote 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).[footnote 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.[footnote 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.[footnote 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.[footnote 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.[footnote 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 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.[footnote 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.[footnote 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'.[footnote 20] In their judgment, the Justices noted stated that 'Not all human beings can be classified by sex as either male or female'.[footnote 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)).
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.[footnote 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
Adults (18 or over) can apply?
Guardian of children (under 18) can apply?
Relationship to jurisdiction?
Must be unmarried?
Must have undergone surgery*
Australian Capital Territory
Birth of person must be registered in ACT
New South Wales
Birth of person must be registered in NSW
Birth of person must be registered in NT
Birth of person must be registered in Qld
Birth of person must be registered in Tas
Victoria (current situation)
Birth of person must be registered in Vic OR be a resident of Vic who lives and has lived for 12 months in Vic
Victoria (under proposed Bill)
Same as current situation
*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.
Table 2: Criteria for applying for a gender recognition certificate
*to 'alter genitals or other sexual characteristics'
Source: Table adapted and updated from AHRC (2009) Sex Files, op. cit., p. 17.
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…'.[footnote 25] The Australian Government has been progressively moving towards this.
In 2013, the Australian Government developed Guidelines on the Recognition of Sex and Gender,[footnote 26] following the AHRC'S recommendations in their report Sex Files.[footnote 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.[footnote 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.[footnote 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 reflected in their personal records held by Australian Government departments and agencies.[footnote 30]
The Guidelines also note that there are 'legitimate reasons [footnote 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.[footnote 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).[footnote 32]A person can change their <href="#a2">Medicare Record by providing one of a list of documents, including a statement from a registered medical practitioner or psychologist.[footnote 33] From July 2016, the option to record sex as 'Indeterminate' in a person's Australian Taxation Office's record is available.[footnote 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)).
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'.[footnote 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 2000states 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 Australia[footnote 36]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'.[footnote 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.[footnote 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 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'.[footnote 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.[footnote 40]
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.[footnote 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.[footnote 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 <href="#/view/act/1995/62/part5a">Births, Deaths & Marriages Registration Act 1995 (NSW). As noted above, the High Court case of Registrar of Births, Deaths and Marriages (NSW) v Norrie [footnote 2014] 250 CLR 490 permitted the NSW Registrar to register a person's sex as 'non-specific'.[footnote 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)).[footnote 44] A Registrar cannot change the record of a person's sex if the person is married (ss 32B(1)(c); 32DC).
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.
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)).
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).
§ 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
§ 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
§ <href="#ixzz40IQQgjFo">Transgender people will be able to alter birth certificates'/ K. Lawson, Canberra Times, 17 March 2014 (ACT legislation)
· Births, Deaths and Marriages Registration Act 1997 (ACT)
· Births, Deaths and Marriages Registration Amendment Bill 2013 (ACT)
o Explanatory statement
o Compatibility statement
· <href="#/view/act/1995/62/part5a">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)
· Registrar of Births, Deaths and Marriages (NSW) v Norrie [footnote 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.
§ 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
§ 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)
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.
Research & Inquiries Officers
Victorian Parliamentary Library & Information Service
Department of Parliamentary Services
Coordinator, Research & Inquiries
Victorian Parliamentary Library & Information Service
Spring Street, Melbourne
Telephone (03) 9651 8633
[footnote 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.
[footnote 2] M. Pakula, Attorney-General (2016) 'Second Reading Speech: Births, Deaths and Marriages Registration Amendment Bill 2016', Debates, Legislative Assembly, 30 August, p. 27.
[footnote 3] ibid., p. 27.
[footnote 4]Births, Deaths and Marriages Registration (Amendment) Act 2004(Vic).
[footnote 5] ibid, p. 3 (Recommendation 2).
[footnote 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.
[footnote 7] Australian Human Rights Commission (2015) Resilient Individuals: Sexual Orientation Gender Identity & Intersex Rights 2015, Australian Human Rights Commission, p. 54.
[footnote 8] M. Pakula, Attorney-General (2016) 'Second Reading Speech: Births, Deaths and Marriages Registration Amendment Bill 2016', Debates, Legislative Assembly, 30 August, p. 27.
[footnote 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.
[footnote 10] S. Anderson (2015) I still love her, we can stay married: The Senator and her transgender wife, op. cit.
[footnote 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.
[footnote 12] AHRC (2009) Sex Files: The Legal Recognition of Sex in Documents and Government Records, op. cit., p. 3.
[footnote 13] ibid.
[footnote 14] Landers & Rogers Lawyers (2016) 'Victoria passes legislation allowing gender identity change on birth certificates', blog post, 19 August.
[footnote 15] ibid.
[footnote 16] B. Hall (2016) New Victorian law will create same-sex marriages, The Age, 18 August.
[footnote 17] ibid. See also: Human Rights Law Centre (2016) Birth Certificates Reforms a Step Forward for Transgender Equality, media release, 18 August.
[footnote 18] AHRC (2009) Sex Files: The Legal Recognition of Sex in Documents and Government Records, op. cit., p. 15.
[footnote 19]Registrar of Births, Deaths and Marriages (NSW) v Norrie [footnote 2014] 250 CLR 490.
[footnote 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 [footnote 2014] HCA 11, 3[footnote 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.
[footnote 21]Registrar of Births, Deaths and Marriages (NSW) v Norrie [footnote 2014] HCA 11, 1[footnote 1].
[footnote 22] AHRC (2015) Resilient Individuals: Sexual Orientation Gender Identity & Intersex Rights 2015, op. cit., Table F, p. 51.
[footnote 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.
[footnote 24] This changed recently in 2014.
[footnote 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[footnote h].
[footnote 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)
[footnote 27] AHRC (2009) Sex Files: The Legal Recognition of Sex in Documents and Government Records, op. cit.
[footnote 28] ibid, p. 5.
[footnote 29] ibid, p. 7.
[footnote 30] ibid, p. 3.
[footnote 31] ibid, p. 6.
[footnote 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.
[footnote 33] Department of Human Services (2016) '<href="#a2">Update your personal details on a Medicare card: Change your gender', DHS website, last updated 16 August.
[footnote 34] Australian Taxation Office (2016) 'Update your gender', ATO website, last updated 1 July.
[footnote 35] Department of the Attorney General, 'Gender Reassignment Board', Court and Tribunal Services, Department of the Attorney General website, last updated 28 January 2016.
[footnote 36]AB v State of Western Australia & Anor (2011) P15; AH v State of Western Australia & Anor P 16 HCA 42.
[footnote 37] High Court of Australia, AB v State Of Western Australia & Anor P15/2011; AH v State Of Western Australia & Anor P16/2011 [footnote 2011] HCA 42, judgement summary, 6 October 2011, High Court of Australia.
[footnote 38]AB v State of Western Australia & Anor (2011) P15; AH v State of Western Australia & Anor P 16 HCA 42, 6[footnote 15].
[footnote 39] AHRC (2015) Resilient Individuals: Sexual Orientation Gender Identity & Intersex Rights 2015, op. cit., p. 52.
[footnote 40] ibid., p. 3.
[footnote 41]Sexual Reassignment Act 1988 s 10.
[footnote 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.
[footnote 43]Registrar of Births, Deaths and Marriages (NSW) v Norrie [footnote 2014] 250 CLR 490.
[footnote 44] Such as documentary proof of the identity of the person (<href="#/view/regulation/2011/464/whole">Births, Deaths and Marriages Registration Regulation 2011 cl. 9).