Transgender issues under Australian Law- an overview

The question of legal and social recognition of the rights of transgender persons is becoming a very hot topic of discussion. The recent debate in Australia on the content of the material provided for schools by the “Safe Schools Coalition” is one example. The question whether persons who believe they are of a different gender to their biological sex, should be able to use public bathrooms corresponding to their gender preference, is also fiercely debated. A law on the topic introduced recently in North Carolina in the United States has led to outrage from a number of quarters, and the announcement of “boycotts” and withdrawal of business by large firms and entertainers.

There are many issues in this area which intersect with religious freedom questions, especially as the majority view within Christian and other “Abrahamic” faiths seems to be that a person’s gender should usually correspond with their biological sex, except in the very rare cases of true “intersex” conditions where biological markers point in different directions.

This post cannot deal with all the current issues. But I thought as a preliminary exercise it would be helpful to briefly review the current Australian law around the topic, to set the scene for future discussions. I will also offer a few comments on recent proposals for change to the criteria adopted for changing a person’s legal gender identity.

Preliminary Definitions

Legislation in Australia defines “transgender” or similar terms in different ways for different purposes. For example, law which prohibits discrimination in various areas against transgender persons will often have a very broad definition referring to a person’s choice to “identify” in a certain way; but in other areas, where the law refers to “male” or “female”, a person might only be regarded as having “changed” gender if they have undergone certain medical procedures. In NSW this distinction is referred to by use of the terminology “recognized transgender person”, where the relevant procedures have taken place. See here for an official overview of the NSW law on the topic.

In NSW legislation, the Anti Discrimination Act 1977 (NSW) (“ADA”) s 4(1) provides a definition as follows:

“recognised transgender person” means a person the record of whose sex is altered under Part 5A of the Births, Deaths and Marriages Registration Act 1995 or under the corresponding provisions of a law of another Australian jurisdiction.

In s 38A of the ADA we read:

38A Interpretation

A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person:

(a) who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or

(b) who has identified as a member of the opposite sex by living as a member of the opposite sex, or

(c) who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex,

and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person.

The Commonwealth Sex Discrimination Act 1984 (Cth) contains the following definitions at s 4(1):

“gender identity ” means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth…

“intersex status ” means the status of having physical, hormonal or genetic features that are:

(a)  neither wholly female nor wholly male; or

(b)  a combination of female and male; or

(c)  neither female nor male…

official record of a person’s sex ” means:

(a)  a record of a person’s sex in a register of births, deaths and marriages (however described); or

(b)  a document (however described), issued under a law of a State or Territory, the purpose of which is to identify or acknowledge a person’s sex.

There is a general policy document produced by the Commonwealth Government, Australian Government Guidelines on the Recognition of Sex and Gender , updated as of Nov 2015.which gives the following definitions:

  1. For the purposes of these Guidelines, sex refers to the chromosomal, gonadal and anatomical characteristics associated with biological sex.

  2. The term intersex refers to people who are born with genetic, hormonal or physical sex characteristics that are not typically ‘male’ or ‘female’. Intersex people have a diversity of bodies and gender identities, and may identify as male or female or neither.

  3. Gender is part of a person’s personal and social identity. It refers to the way a person feels, presents and is recognised within the community. A person’s gender may be reflected in outward social markers, including their name, outward appearance, mannerisms and dress.

Recognition of “transgender” status

The above definitions, then, show that whether someone falls into the category of a “transgender” person will vary according to the purposes for which the question is asked. Interestingly the Commonwealth legislation does not use the term “transgender”, but outlaws discrimination in various areas on the basis of “gender-related identity, appearance or mannerisms”- presumably the “identity” limb would require some choice to “identify” as a member of some gender or another. But there is still some lack of clarity there.

Let’s consider what one might regard as the “primary” case of transgender identity, where someone has undergone medical and other procedures to change their “gender identity” to depart from their biological identity. In NSW a new birth certificate may issue in some cases under Part 5A of the Births Death and Marriages Registration Act 1995 (NSW).

Under s 32A of the BDMRA, the procedure is described as follows:

“sex affirmation procedure” means a surgical procedure involving the alteration of a person’s reproductive organs carried out:

(a) for the purpose of assisting a person to be considered to be a member of the opposite sex, or

(b) to correct or eliminate ambiguities relating to the sex of the person.

It is interesting how language has changed over recent years: from the term “sex change”, to “gender transition” or “gender reassignment/realignment surgery”, and now to “affirmation”, presumably in line with the view now taken about the nature of the result effected by the surgery.

A person may apply to alter their birth certificate in NSW, if they were born in NSW, under 2 sets of conditions set out in s 32B. If they are over 18, they need to demonstrate that they have undergone a “sex affirmation procedure”, and they need to be unmarried. If the person is a minor, then the same conditions apply (surgery, unmarried) but the application must be made by the child’s parents or guardian. Two statutory declarations by medical practitioners are required, under s 32C.

Under s 32I, once a birth certificate has been changed in this way, then the person is deemed for the purposes of NSW law to be of the changed sex.

The ACT Births, Deaths And Marriages Registration Act 1997 (ACT) s 24 no longer explicitly requires surgery, but it does require evidence that “appropriate clinical treatment” has been carried out.

For Commonwealth passports, the Commonwealth requires either evidence that there has been a sex change recorded in a State BDM Registry, or else a medical certificate that treatment is occurring (full surgery is not essential.)

Contrary to the current law, the President of the Human Rights Commission has now been quoted as saying that people ought to be able to register change of gender on birth certificates and other identity documents without producing medical evidence. See “Gender identity: Legal recognition should be transferred to individuals, Human Rights Commission says” (ABC News website, 7 April 2016):

Australian Human Rights Commission president Professor Gillian Triggs has renewed calls to reform the process for changing gender on official documents, saying they needed to be simplified.

“The human rights of transgender and gender diverse people to equality and non-discrimination cannot be fully realised without the removal of the legislative barriers to the legal recognition of their gender identity,” Professor Triggs told ABC News.

It is somewhat curious that the newspaper report, at least, purports to find support for its position that gender reassignment recognition be granted without medical procedures, and without the requirement that someone be unmarried, in a 2011 UN Report. But when that Report is examined its formal recommendation on the issue reads as follows, at para [84]: that States should

(h) 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, without infringements of other human rights.

There is no specific recommendation concerned the preconditions of “recognition”. True, an earlier paragraph in the Report, para [72], notes difficulties occasioned by the requirements for medical treatment and that a person be unmarried, but it does not make any formal recommendation on the topics.

With respect to the AHRC’s views, the fact that these requirements are imposed seems perfectly sensible. The only justifications that are offered for a change are as follows:

“All people have the right to equality and non-discrimination, privacy and physical integrity, and recognition as a person before the law,” Professor Triggs said.

“Legislative schemes that require people to have surgery and to be unmarried in order to change the legal record of their gender undermine these rights.

Leave aside for the moment that there is no issue of not treating transgender persons as “persons before the law”; that is not suggested by anybody. But it is simply not true to state that we require “equality and non-discrimination” in all areas of life. The law of discrimination has historically been aimed at removing actual legal and practical barriers placed on persons due to irrelevant criteria. But it is not discriminatory, for example, to require that a person engaged as an engineer have an engineering qualification, because it is relevant to their doing the job.

Hence in the current situation it seems reasonable to say that it is relevant to a person’s legal status as male or female, that they currently (in the absence of medical treatment) have the biological characteristics associated with males and females. Our society has moved towards allowing people to have cosmetic surgery and other procedures to allow those who feel that they should be of the opposite sex, to live as such. But it does not seem at all unreasonable to say that someone who has not had medical assistance to move this way, cannot be treated for all purposes (which is the effect of a birth certificate change) as if they were of a different gender to their biological sex. Whatever the future may hold, we maintain separate bathrooms for men and women, and separate changing rooms for the sake of generally accepted modesty. (Indeed, we accept these situations as one where it is justified to employ only persons of one sex, as an exemption to sex discrimination provisions- see s 30(2(e), (g) of the Sex Discrimination Act 1984 (Cth).) These things would be undermined by a too-ready willingness to transform birth certificates, which are after all a significant identity document in our community.

The requirement that someone be unmarried before they can transition out of their biological gender also seems not only reasonable, but essential. Apart from the obvious emotional and social impact on an existing spouse, the fact is that in Australia at the moment we do not recognize same sex marriage. For a married person (who must be of a different gender to their spouse, under law) to change their gender without terminating the marriage, will create a same sex marriage. That is contrary to the current law of our country.

Nevertheless, there are now reports of a recommendation made by an Equal Opportunity body in Tasmania that this sort of approach be adopted.

Australian Christian Lobby Tasmania Director Mark Brown said this sort of radical social experiment should not be conducted.

“It is a radical thing to make changing your sex as easy as changing your name.

“To adopt a policy that requires no surgical, medical, or hormonal treatment for a person to legally change sex and that eliminates the involvement of doctors and psychologists in helping persons experiencing Gender Dysphoria is unwise.

“When gender is defined solely as how one feels about oneself as male or female with no clear basis in genetics or sexual development, the term ‘gender’ loses any concrete reference to objective biological reality.

Regulation of gender reassignment

How is the act of “gender reassignment” regulated in Australia? In general an adult person may consent to have surgery and other treatment, so long as they are of sound mind. Parents or guardians can give consent to medical procedures on their minor children of a young age. But the issue becomes more complicated when children are old enough to sensibly express their own views, though under 18.

There is no fixed age at which children should by law be consulted about these issues, but in Secretary, Dept of Health and Community Services v JWB and SMB (1992) 175 CLR 218 the High Court followed earlier English authority to the effect that a minor is capable of giving consent when they “achieve a sufficient understanding and intelligence to enable him or her to understand fully what is proposed” (237-238). In general this will usually be between the ages of 11 to 14, but there may be exceptions at either end of the scale.

What if there is a clash between the wishes of a “mature” minor and the parents? The House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 held that where a “mature” minor requested treatment (the issue in that case was contraception) but the parents do not, then the parent’s wishes could be overridden if the doctor was sure that the minor understood the situation. No case seems to have arisen directly in Australia but it is likely the High Court would follow this decision.

There seems to be authority for the proposition that a minor may not over-ride parental consent for treatment where the treatment is for the minor’s benefit. In Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1993] Fam 64 a 16-year-old girl was refusing treatment for anorexia nervosa. The court there held that the consent of the girl’s guardian would over-ride her desire not to be treated, especially since evidence was presented to show that a desire not to be treated could be described as a symptom of the illness. (See also Re E (Medical Treatment: Anorexia) [2012] EWHC 1639 where an adult suffering severe anorexia was judged to lack capacity to refuse treatment needed to keep her alive, and the order was made to feed her.)

Marion’s case (Department of Health and Community Services (NT) v JWB (1992) 175 CLR 218) is a High Court decision which establishes that in a case where the medical treatment proposed is not clearly “beneficial” or “necessary” but is optional, then even parental consent may be insufficient to authorise the treatment, and an application will need to be made to a court (usually, these days, the Family Court). The cases where this has come up often relate to the sterilisation of mentally handicapped young women. This decision may be made by the Family Court, however, even if relevant State legislation would otherwise prevent the decision being made in those circumstances- see P v P (1994) 181 CLR 583, where it was held that by virtue of s 109 of the Constitution, the jurisdiction of the Family Court could be exercised in spite of the provisions of the Guardianship Act 1987 (NSW).

A helpful recent article, Malcolm K Smith and Ben Mathews, “Treatment for gender dysphoria in children: the new legal, ethical and clinical landscape” Med J Aust 2015; 202 (2): 102-104 explains the application of these principles under current court authorities to decisions relating to treatment of “gender dysphoria” in minors and the respective roles of parents, doctors and the Family Court. It has become accepted that treatment of a minor involves two stages. As they summarise the situation:

Treatment of children with gender dysphoria is given in two stages. Stage 1 treatment involves the provision of puberty blocking medication, and stage 2 comprises cross-sex hormone treatment. Until very recently, courts considered both stages of treatment together and regarded them at law as a form of special medical procedure, which can only be lawfully performed with court approval. In a significant recent development, courts have drawn a distinction between the two stages of treatment, permitting parents to consent to stage 1 treatment. In addition, it has been held that a child who is determined by a court to be Gillick competent can consent to stage 2 treatment. A Gillick-competent child is one who is found to possess sufficient understanding and intelligence to enable her or him to understand fully what is proposed.

The most recent authoritative decision of the Full Court of the Family Court of Australia is Re: Jamie [2013] FamCAFC 110 (31 July 2013), which is regarded as setting out the current process. While parents alone may, if they choose, consent to “stage 1” treatments, “stage 2” treatments, which are considered irreversible, may only be consented to by the child themselves, and then only when the child has been determined by a court to be of sufficient “understanding and intelligence” to be able to give informed consent.

This framework was then applied by a trial judge in a later stage of the same proceedings, Re: Jamie (No 2) [2015] FamCA 455 (16 June 2015), where the 15-year-old child was found to be competent to choose to proceed with stage 2.

For an article criticising the decision in Re Jamie and arguing that there is no need for court intervention in the decision, even involving a minor, see Felicity Bell, “Children with Gender Dysphoria and the Jurisdiction of the Family Court” [2015] UNSWLawJl 15; (2015) 38(2) University of New South Wales Law Journal 426. I disagree with the author’s argument. I think that in the case of such a life-changing decision made by a minor, the very least that society can do is to seek to ensure that the minor is capable of making this decision in an informed way.

Discrimination law and transgender status

Most jurisdictions in Australia prohibit discrimination against persons with “transgender status” in various areas of life. The Sex Discrimination Act 1984 (Cth), for example, was amended to include this ground in 2013. In general s 5B prohibits discrimination on the grounds of “gender identity”. There are exemptions that apply in different ways to different parts of the Act, but, for example, there is a general provision in s 37 that means that a “body established for religious purposes” will not be required to employ a transgender person if their religious beliefs would prevent them from doing so.

I completely support laws which make it illegal to treat transgender persons differently from others in areas where such differential treatment is on irrelevant grounds. In most situations of employment or access to services, for example, it should be irrelevant whether someone identifies as one gender or another. However, there may be areas where the fact of transgender status is not irrelevant, and where biological sex may be a significant issue.

I hope to return in a later post to the question whether a refusal to allow a transgender person to use a public bathroom which is not designated for that person’s biological sex amounts to unlawful discrimination under Australian law.

Marriage and transgender status

We have seen how a “change of sex” may be made by alteration of a birth certificate under State law. How does this translate to recognition of the change for the purposes of the Commonwealth law on marriage?

In the decision of the Full Court of the Family Court commonly called Re Kevin (The Attorney-General for the Commonwealth & “Kevin and Jennifer” & Human Rights and Equal Opportunity Commission [2003] FamCA 94 (21 February 2003)), the Full Court ruled that for the purposes of Commonwealth law a person who had undergone sex reassignment surgery could be recognised as of the “new” gender, and their marriage to a person of their former gender would be valid.

Can you be neither?

The law of Australia also recognizes that a person can choose to designate themselves as neither male nor female. One might think this was a category restricted to the very rare case of “intersex” persons, whose biological characteristics are confused. But the High Court of Australia ruled, in NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11 (2 April 2014), that where a person had undergone a “reassignment procedure” (originally male), but then was not satisfied that a proper transition had been made to female, they could legitimately ask the Registrar to record their new gender as “non-specific”.

In doing so the members of the court referred to their earlier decision in AB v Western Australia [2011] HCA 42 (6 October 2011.) In that decision two persons who had undergone some medical treatment to move from female to male, but still retained some female sexual characteristics, were held to be entitled to be registered as male under the relevant WA legislation. The decision itself was not relevant to the “non-specific” issue, but in the course of the decision the members of the court noted that:

[23]… the sex of a person is not, and a person’s gender characteristics are not, in every case unequivocally male or female.

That statement was made in the context of a portion of the WA law that was clearly referring to the very rare “intersex” category. But it was then adopted in Norrie (see paras [1] and [37]) as if it represented some sort of general truth. It must be said, with respect, that the decision in Norrie seems very odd and not strongly supported by the relevant legislation.

 Conclusion

This post has been an overview of some important issues in the area of the legal treatment of transgender persons in Australian law. I hope to return to this topic in later posts to discuss in particular some of the “religious freedom” issues which are being raised in this area, in Australia and elsewhere.

 

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