A recent decision of the United Nations Human Rights Committee has ruled that the Australian government is in breach of its human rights obligations, by not providing for a person who has “transitioned” from male to female, to have their birth certificate amended. The reason that this request has been refused is that the person, “G”, was married to a woman, and NSW law does not allow the birth certificate of a married person to be amended. In my view this provision of NSW law is perfectly sensible (given that Australia does not recognise same sex marriage), and I have to say that I think the UNHRC has got this wrong.

I have commented previously on general “transgender” issues on this blog (see here and here and here), as recognition of change of gender raises a number of significant issues for religious believers and organisations, so it seems worthwhile to bring this recent decision to notice.

The decision, which I will call G v Australia (officially, UN Document CCPR/C/119/D/2172/2012), is available online here, and is noted in an online comment by DLA Piper, the law firm who represented the “author” (as the applicant G is called in the report). It was handed down on March 17, 2017, but apparently has just been publicly released on 15 June 2017.

Facts

G was registered as a male on birth in NSW. They began “transition” in 2000 from male to female, and changed the personal name on their birth certificate in 2002, and later on other identity documents. G began to travel to Thailand in between 2001 and October 2005 to undertake “reassignment surgery”. G married a woman on 3 September 2005 (prior to finalisation of the surgical procedures.)  G then applied for the issue of a Commonwealth passport as a female on 20 April 2006. This application was initially refused (on the basis that G’s NSW birth certificate recorded their gender as male.) On appeal, in 2007, the Commonwealth Administrative Appeals Tribunal over-turned the refusal to issue a passport, and ordered that a revised passport be issued identifying G as female. The Tribunal Member, Deputy President Purvis, held, at [27]:

The Tribunal is satisfied, and so finds, that she is a female person and has the identity that she contends. Her inability to provide a birth certificate from the Registrar of Births, Deaths and Marriages that records her female gender, in circumstances where the obtaining of the same is prevented by state legislation, is not a valid ground for rejecting her passport application, where her identity can be satisfactorily established by other means.

This decision was not the subject of an appeal. The result is that G holds a passport identifying them as female, but their birth certificate still records their gender as male.

Relevant NSW law

Why was the birth certificate not able to be changed? NSW, like most other jurisdictions in Australia, has a regime allowing a birth certificate to be changed where there has been a gender reassignment or “sex affirmation” procedure. The Births, Deaths and Marriages Registration Act 1995 (NSW) (“BDMRA”) Part 5A contains the details. The conditions for a change of the register are spelled out in s 32B:

32B (1) A person who is 18 or above:
(a) whose birth is registered in New South Wales, and
(b) who has undergone a sex affirmation procedure, and
(c) who is not married,
may apply to the Registrar, in a form approved by the Registrar, for alteration of the record of the person’s sex in the registration of the person’s birth.

In addition, just for added clarity, s 32D(3) provides:

(3) An alteration of the record of a person’s sex must not be made if the person is married.

Clause 32B(1)(c) and sub-section 32D(3) may together be called the “unmarried condition”, and prevent someone who is married from applying for a change of sex on the birth certificate. The reason for this is fairly clear. Australia does not recognise “same sex marriage”. Section 5(1) of the Marriage Act 1961 (Cth), which sets out the law of marriage for the whole country, defines marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. (This definition was not some radical innovation under Prime Minister Howard as is sometimes wrongly said; it simply reaffirms what had been the law since long before Australia’s Federation.) If, then, a person like G who was married as a male, to a female, is then later allowed to change their birth certificate to female, the various identity documents will wrongly appear to say that a same-sex marriage between G and their spouse exists.

This is the justification for the provisions set out by the Australian government in its response to the case brought by G to the UN Human Rights Committee (see paras 4.7-4.9 of the decision in G v Australia linked above.)

Previous Legal Consideration of the “Unmarried Condition”

Interestingly, there was a previous domestic challenge to the refusal of State authorities (under the law of Victoria) to change the sex on the birth certificate of a married person, claiming that this refusal amounted to discrimination on the ground of “marital status” under the Sex Discrimination Act 1984 (Cth) (“SDA”). In AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071 Heerey J in the Federal Court of Australia dismissed this claim, on the interesting basis that the prohibition of “marital status” discrimination under the SDA, at least in the circumstances of this claim (not involving a Commonwealth entity or a relevant corporation), was not supported by the UN Convention said to underlie the SDA.

Under the relevant provisions of s 9 SDA, the Act only applied in the circumstances set out there, one of which was that it complied with the UN “Convention on the Elimination of All Forms of Discrimination Against Women“. This convention did not refer to discrimination on the grounds of “marital status”. Hence s 22 of the SDA, forbidding discrimination in the provision of “services” on the basis of marital status, did not apply to the action of the Victorian Parliament in limiting provision of revised birth certificates to cases where the applicant was unmarried. Heerey J’s decision was upheld on appeal to the Full Federal Court (by a 2-1 majority) in AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140.

After these rulings the SDA was amended to, in effect, remove any doubt on the matter, by adding s 40(5):

(5)  Nothing in Division 2 renders it unlawful to refuse to make, issue or alter an official record of a person’s sex if a law of a State or Territory requires the refusal because the person is married.

There has also been a recent challenge to a condition of the sort being discussed here in the United Kingdom, though those proceedings have not yet been finalised. In MB v Secretary of State for Work and Pensions [2016] UKSC 53 the issue arose where MB, who had undergone surgery and “transitioned” from male to female, applied in 2008 for a pension on turning 60. In the UK at the time of application the pensionable age for females was 60, but for males was 65. The UK law allowing “gender transition” allowed a person who had undergone the relevant procedures to allow a change of gender, to receive a pension in their new gender. But the law also specified that official recognition of change of gender could only be granted where the applicant was unmarried (for similar reasons to those applying now in NSW, as at the time UK law did not recognise same sex marriage.) MB did not want to divorce. They are, it seems, claiming back payment of the five year’s worth of pension payments not made from the age of 60, on the basis that the refusal to allow official recognition of the gender change on the basis of married status was discriminatory, contrary to a European Council Directive. The UK Supreme Court, however, was divided on the question, and for the moment has referred to case to the European Court of Justice for their ruling on the point- see paras [17]-[18].

To return to the case of “G”- given that they see no prospect of the matter being resolved in their favour under present Australian law, they have decided to ask for a ruling from the UN Human Rights Committee.

Decision of the UN HRC

Australia is a party to the International Covenant on Civil and Political Rights (“ICCPR”). The First Optional Protocol to that Convention “recognizes the competence of the [UN Human Rights] Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State Party of any of the rights set forth in the Covenant” (art 1). Under that process G has requested the UNHRC to consider their situation. Reports of the Committee are not in any way “binding” on the States who are party to the Convention, but they may create public or political pressure for change.

It has to be said, with respect, that there are number of problems with the report of the Committee. For example, at an early stage para 2.2 it makes the following bald assertion:

As a matter of law, sex in Australia is no longer considered on a purely biological basis or fixed at birth but rather is a question of fact to be determined by looking at all the relevant circumstances, including both psychological and physical characteristics, as well as the purpose for which the determination is to be made.

This very broad comment is sourced in a footnote to the decision of the Full Court of the Family Court in Attorney-General for the Commonwealth & “Kevin and Jennifer” & Human Rights and Equal Opportunity Commission [2003] FamCA 94. But this decision, while of great importance, only concerned the question whether a post-operative transsexual person can marry under Commonwealth law in their “reassigned” gender. It did not make the wide-ranging finding set out above by the Committee, for all purposes of Australian law.

Later, and more clearly in error, at para 2.4 the Committee asserts that the Federal SDA “prohibits discrimination on the basis of marital status but it does not prohibit discrimination against persons who are sex and gender diverse”. The Committee at this point seems unaware of the amendments to the SDA made in 2013 which prohibit discrimination on precisely these grounds.

These points to one side, what does the Committee say? They accept that the “author”, G, has the right to bring a complaint. There have been three refusals to amend the birth certificate, and G is at risk of being the subject of embarrassment and unwanted attention if required to produce a birth certificate which does not accord with G’s gender appearance. Art 26 of the ICCPR forbids discrimination on a number of grounds, and G claims that there is discrimination either on the basis of “marital status” or “transgender status”. (It is worth noting that neither of these grounds is explicitly spelled out in art 26, which refers to prohibited grounds as being “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” But it may be accepted that “other” can include the two grounds put forward here.)

G also claimed that there was interference with “privacy” under art 17, by being required to disclose the original birth sex. Art 17 also requires protection of “family”, which would be disrupted if G were required to divorce before the birth certificate was amended. At para 7.3 the Committee agrees that prima facie interference under art 17 has been established.

Art 17 does require, however, that the interference, to be wrongful, must be “arbitrary or unlawful”. Here it was lawful, being justified by Australian domestic law. But was it “arbitrary”? The Committee applies a general test on this matter by asking whether the interference was “proportionate to the legitimate end sought and necessary in the circumstances of the case” (para 7.4).

The Committee accepts (in broad terms) that it was a legitimate aim for Australian governments to seek consistency between identity documents and the law of marriage. But in a key discussion at paras 7.7-7.9 it concludes that Australian law is not “proportionate” and “necessary”. There are three main reasons offered; I will offer my comments after noting each.

1. At para 7.7 the Committee notes the discrepancy between the passport and birth certificate requirements, under which a passport designation may be changed but a birth certificate may not. (This is a fair comment; but to be honest I think the discrepancy arises because a bad decision was made by the AAT in allowing the passport to be changed without the birth certificate. To my mind the solution is to conclude that the AAT decision was wrong and to conform the passport to the birth certificate.)
2. In the same paragraph the Committee notes that Federal law allows the States and Territories to issue their own birth certificates under their own rules. But I cannot understand why this is a reason for saying the overall policy is disproportionate. Where a State’s law (as in NSW) is designed to allow the Federal law on marriage to operate sensibly, this does not seem to be a reason to conclude that there is something wrong with the system.
3. Finally, the Committee refers to the fact that G has been allowed to operate under changed identity documents of many other sorts. It says at para 7.9: “the author has lived on a day to day basis in a loving, married relationship with a female spouse that the State party has recognised in all respects as valid.” This is true- G’s marriage is formally intact. But the comment here raises an important issue.

Given that the law of Australia specifies that marriage is between a man and a woman; given that the decision in Re Kevin and Jennifer, noted above, while it stands as good law, says that a post-operative transexual person will be regarded for marriage law purposes as having actually changed their sex; then does it not follow that G and G’s spouse can no longer be regarded as legally married? Neither has applied for a decree of “nullity”, but there is a plausible case to be made that where a marriage is simply not possible then no formal decree is needed to say that it cannot exist. Arguably as soon as G had completed the surgical procedures (and continued to live as a woman), the former “marriage” became automatically void.

If this logic is valid, then it may be that G could apply under Australian domestic law for a birth certificate change. G and G’s spouse are no longer “married”, as Australian law does not recognise same sex marriage. Whether this outcome may be acceptable to G is perhaps doubtful. An alternative view may be that, since the registry office would prefer to have proper documentation to act on, the office would be justified in declining an application for a birth certificate change in these circumstances, until a formal decree of nullity or a declaration had been obtained from the Family Court declaring the previous apparent “marriage” at an end. This would then lead to the same result as at present, as it seems G has been determined not to seek to end the relationship.

(I have previously discussed some of these issues, including whether a decree of nullity or a declaration was a more appropriate procedure in these sort of cases, in commenting on proposals to change Victoria’s birth certificate amendment procedures: see “Legal problems with Victoria’s new birth certificate gender laws” , Nov 20, 2016).

 

To sum up, in its wisdom the Committee has decided that Australia has unduly interfered with G’s privacy and family rights (art 17), and for similar reasons concluded that G has been discriminated against contrary to art 26- see para 7.15. It recommends at para 9 that Australia should “revise its legislation to ensure compliance with the [ICCPR]”. (Given that the relevant laws are mostly State laws this recommendation glosses over a number of complexities created by Australia’s federal system. However, given that in the past the Federal Parliament acted to pass a law overriding State laws as a result of a finding of the UNHRC- see the Humans Rights (Sexual Conduct) Act 1994 (Cth), following the decision in Toonen v Australia, Comm No 488/1992- presumably it is hoped that this may be one option.)

Conclusion

As will be apparent by now, I disagree with the Committee’s ruling. True, there is inconvenience and some embarrassment for G under the current law. True, there is an unfortunate decision in relation to a passport which seems to be wrong, and creates an apparent inconsistency in the law.

But same sex marriage is not recognised under Australian law, and as the Committee acknowledges, there is no human right flowing from the ICCPR for persons to be able to enter a same sex marriage (see the decision of this very Committee, though of course differently constituted, in Joslin v New Zealand, 17 July 2002, noted at fn 15 in the G v Australia report.) Indeed, the decision of the European Court of Human Rights in a similar case, Hämäläinen v. Finland, Application No. 37359/09 (16 July 2014), was that there had been no interference with human rights by a failure to allow a married person to change their legal sex, because in Finland the marriage could be converted into a “civil partnership”. All States and Territories in Australia provide for legal recognition of “de facto” relationships, with identical legal incidents to those of marriage. Hence it would be possible for G to divorce and then to enter a same sex de facto civil partnership with their former spouse.

On balance, it seems to me that the Australian Federal and State Parliaments are better placed than the UN Human Rights Committee to decide how to balance these competing considerations, when in the end there would be no legal detriment to the persons involved.  The current law as set out in the NSW BDMR Act seems sensible, and ought not to be amended in light of this UN decision; nor should the Commonwealth attempt to over-ride State and Territory law on the point.