Overview of transgender and non-binary laws in Australia

Last week I spoke as a member of a panel at the International Bar Association conference in Seoul, South Korea. The panel covered issues concerning transgender law in various countries. I was asked in advance what the law was in Australia.

Here is what I was asked- and my responses:

From East to West: Developments and issues in the advancement and protection of the rights of transgender and non-binary people

International Bar Association

SEOUL 23 SEPTEMBER 2019

Stephen Page

From East to West: Developments and issues in the advancement and protection of the rights of transgender and non-binary people

International Bar Association

Seoul – 23 September 2019

Stephen Page[1]

Please describe the general atmosphere surrounding the rights of transgender people in Australia – just a background as to how transgender rights are viewed by society and what abuses they face?

Australia has anti-discrimination laws that apply to transgender and intersex people.  The equal marriage debate and plebiscite that Australia went through in 2017 was, ultimately, a great step forward for liberalising rights – but there has been a strong backlash including continued high rates of attendance upon psychiatrists and psychologists for LGBTIQ people up until today. 

Mayang Prasetyo was the sad face of domestic violence towards transgender people in Australia.  She was murdered by her partner Marcus Volke and then dismembered.  Brisbane’s Courier Mail newspaper had a lurid headline on its front page at the time in 2014, which focussed on her gender and occupation. She was a sex worker.  It was widely condemned for its coverage – by politicians, other media outlets and many other commentators who took part in a public forum for a taskforce dealing with Queensland’s domestic violence laws at the time headed by Australia’s former Governor General. 

During the equal marriage debate there were and have been since continued attacks upon safe schools programmes, which are intended to educate children about transgender children – so that those children can be protected.

There has been an extraordinary upsurge in the last 2 or 3 years by parents seeking treatment from specialists for their transgender children.  This signifies a growing awareness and acceptance of the children for who they are.

The Prime Minister, Scott Morrison, has stated publicly that he is opposed to the teaching about transgender students in Christian schools.  His government is proposing a Religious Discrimination Act, to allow protection for religious beliefs.  The form of the Act is not yet known.

Requirements for gender reassignment

1.      What requirements must be satisfied prior to undergoing sex reassignment surgery – mental health assessments?  Hormone therapy for a certain period of time?  Real life test?

In the words of the Family Court in Re Kelvin [2017] FamCAFC 258:

            “Treatment guidelines for the care of trans and gender diverse children and adolescents are in place, with the World Professional Association for Transgender Health Standards of Care, version 7 (2011) and the Endocrine Society Treatment Guidelines (2009) being the basis of treatment protocols internationally, including throughout Australia.

            Australia’s specific guidelines for the standards of care and treatment for transgender and gender diverse children and adolescents are expected to be available in September 2017.

            Best practice medical treatment for medical dysphoria is offered following a comprehensive multidisciplinary assessment.  The multidisciplinary treating team may include clinicians with experience in the disciplines of child and adolescent psychiatrist, paediatrics, adolescent medicine, paediatric endocrinology, clinical psychology, gynaecology, andrology, fertility counselling and services, speech therapy, general practice and nursing.  These treatment professionals need to agree on the proposed treatment plan before it can be implemented.  Medical treatment is only commenced after physical examination and blood tests confirm that the adolescent has entered into puberty.  Best medical practices that the adolescent and their parents/guardians must provide informed consent.”

Essentially the same process (absent paediatric focus) occurs concerning adults. 

2.      What is the minimum age requirement to request for sex assignment surgery in your jurisdiction?

The age of majority throughout Australia is 18.  It is clear that anyone over the age of 18 can undertake sex assignment surgery. 

It is unclear that for a person under the age of 18, whether court approval is required for sex assignment surgery. 

Following Re Kelvin [2017], if the parents agree and/or the child is Gillick competent, then court approval is not required.  It is not clear as to stage 3 treatment whether court approval might be required.

The court said:

            “The existing medico-legal structure for stage 1, stage 2 and stage 3 treatment in Australia requires at least one psychiatrist or clinical psychologist to confirm a diagnosis of gender dysphoria in adolescence prior to medical intervention.

            Stage 1 treatment is “puberty blocking treatment” and the effects of this treatment are reversible when used for a limited time for approximately 3 to 4 years.  Gonadotrophin releasing hormone analogue (GnRHa) are used for stage 1 treatment and are administered via injection with the aim of reducing the psychological distress associated with development and progression of the unwanted, irreversible changes of the adolescent’s endogenous (biological) puberty.  It also allows the adolescent time to mature emotionally and cognitively such that they can achieve maturity sufficient to provide informed consent for stage 2 treatment.  Stage 1 treatment is ideally commenced in the early stages of puberty (known as Tanner stage 2) which can occur from the age of approximately 9 to 12 years of age. 

            Stage 2 treatment or “gender affirming hormone treatment” involves the use of either oestrogen to feminise the body in those who have a female gender identity or use of testosterone to masculinise the body in those who have a male gender identity.  This treatment is ideally commenced at an age where the adolescent is sufficient mature to be able to provide informed consent given the irreversible nature of some of the effects of oestrogen and testosterone. 

            The irreversible physiological effects of oestrogen are breast growth and decreased sperm production and partially irreversible effects are decreased testicular volume and decreased terminal hair growth.  The irreversible physiological effects of testosterone are facial and body hair growth, scalp hair loss, clitoral enlargement, vaginal atrophy and deepening of voice. 

            Stage 2 treatment for gender dysphoria may, but does not necessarily, cause long term infertility.  For individuals who were assigned male at birth, oestrogen treatment may render the adolescent infertile over time.  However, options are explored with the adolescent regarding their future ability to have biological children prior to the commencement of oestrogen used including preserving their fertility using sperm preservation procedures prior to the commencement of oestrogen used.

            So that it is clear, stage 2 treatment does not include stage 3 treatment which treatment involves surgical interventions.  Those interventions include:

(a)              chest reconstructive surgery (also known as top surgery)…

(b)              phalloplasty;

(c)               hysterectomy;

(d)              bilateral salpingectomy;

(e)               creation of the neovagina;

(f)                vaginoplasty.”

3.      Can appearance of a minor child suffering from gender dysphoria be held accountable for abuse and neglect for refusing to grant consent for gender reassignment surgery?

In simple terms yes, but it may depend on child protection laws in each State and Territory.  In Queensland where I live, it is clear that the answer is yes.  The definition of “harm” in the Child Protection Act 1999 (Qld), section 9 says:

“(1)     "Harm", to a child, is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.

(2)        It is immaterial how the harm is caused.

(3)        Harm can be caused by —

(a)        physical, psychological or emotional abuse or neglect; or

(b)        sexual abuse or exploitation.

(4)        Harm can be caused by —

(a)        a single act, omission or circumstance; or

(b)        a series or combination of acts, omissions or circumstances.”

Discrimination

1.      Are there any laws that clearly protect transgender people against discrimination (employment, medical, housing and education discrimination)?  How would a victim of discrimination have their rights enforced?

Yes.  There are both Federal and State and Territory laws preventing discrimination.  Under the Sex Discrimination Act 1984 (Cth), section 5B:

“(1)     For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person's gender identity if, by reason of:

(a)        the aggrieved person's gender identity; or

(b)        a characteristic that appertains generally to persons who have the same gender identity as the aggrieved person; or

(c)        a characteristic that is generally imputed to persons who have the same gender identity as the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who has a different gender identity.

(2)        For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person's gender identity if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons who have the same gender identity as the aggrieved person.

(3)        This section has effect subject to sections 7B and 7D.”

Section 5C of that Act prohibits discrimination on the ground of intersex status:

“(1)     For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person's intersex status if, by reason of:

(a)        the aggrieved person's intersex status; or

(b)        a characteristic that appertains generally to persons of intersex status; or

(c)        a characteristic that is generally imputed to persons of intersex status;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person who is not of intersex status.

(2)        For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the aggrieved person's intersex status if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of intersex status.

(3)        This section has effect subject to sections 7B and 7D.”

Section 7B deals with the reasonable test concerning indirect discrimination.  Section 7C concerns the burden of proof.  Discrimination under that Act is prohibited in work, education, goods services and facilities, accommodation, land, clubs, administration of Commonwealth laws and programmes.

Each State and Territory also has similar laws.  For example, the Anti-Discrimination Act 1991 (Qld) prohibits discrimination on the basis of attributes including:

“(a)     Sex;

(b)        Relationship status;

(h)        Impairment;

(m)       Gender identity;

(n)        Sexuality;

(p)        Association with, or relation to, a person identified on the basis of any of the above attributes.”

Discrimination under the Queensland Act can be direct or indirect and applies in work, education, goods and services, some kinds of insurance, land, accommodation, club membership and affairs, administration of State laws and programmes.

There are a number of exemptions including:

·                   Employment in religious schools.

Queensland and the Northern Territory allow discrimination on the basis of relationship and sexuality in the provision of any assisted reproductive treatment – however it is likely that those laws are invalid because they conflict with section 22 of the Sex Discrimination Act 1984 (Cth), which by virtue of the Australian Commonwealth constitution has precedence. 

In Western Australia, intended parents are discriminated against in surrogacy if they are a male couple or a single male.  It is unclear how this applies to transgender or intersex people.

Victims of discrimination have the right to complain to the Australian Human Rights Commission or the State and Territory equivalent which can either investigate or refer to a Tribunal or if necessary in the case of vilification to prosecute.

Rosy Charter, Jane M Ussher, Janette Perz and Kerry Robinson in (2018) The Transgender Parent: Experiences in constructions of pregnancy and parenthood for transgender men in Australia, International Journal of Transgenderism, DOI: 10.1080/15532739.2017.1399496 identified 25 transmen who wished to become pregnant.  They all approached IVF clinics.  Despite clear anti-discrimination laws, they all felt uncomfortable in proceeding with clinics and accessed sperm privately:

            “However, experiences of assisted fertility were very different for those participants who choose to use formal fertility services.  Many described it as a “nightmare process” that none were able to see through to completion. 

            We were rejected from multiple clinics due to “reasons unknown”.  We had a range of appointments and each time the discussion centred almost completely on my gender identity…everyone just seemed so uncomfortable see us.  (Justin, 30)”

By contrast, I have seen a surrogacy journey proceed without hindrance from the clinic where the intended mother was a transwoman. 

2.      If there is such specialised protection in your laws, does the law specify the protection is afforded only to those who have undergone sex reassignment surgery?

No. 

3.      Are there any laws prohibiting transgender people from joining the military?  If there is no prohibition – are there any laws in place to protect transgender militants from being discriminated against in the military?

Whilst it was a challenge initially for the military to accept transgender people serving, it is now accepted.  This is made plain by the Sex Discrimination Act 1984 (Cth) which provides:

“(1)     It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program, or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person, on the ground of the other person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding, in the performance of that function, the exercise of that power or the fulfilment of that responsibility.

(2)        This section binds the Crown in right of a State.”

4.      Do the laws of your jurisdiction protect a transgender person’s right to use the restroom consistent with their gender identity?  For example – does your jurisdiction treat restrooms as “public accommodation”, indicating a right to use gendered facilities which conform with a person’s gender identity?  Or are individuals required to use restrooms that match their biological sex, regardless of an individual’s gender identity or expression?

The laws make plain that a transgender person has the right to use the bathroom consistent with their gender identity.  For example, section 22 of the Sex Discrimination Act 1984 (Cth) provides:

“(1)     It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, or breastfeeding:

(a)        by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b)        in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c)        in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2)        This section binds the Crown in right of a State.”

Name change and identity

1.      Can a person change their name to reflect their gender identity?  Please give an overview about this process.

This is determined by State and Territory law. 

ACT

A person can apply to alter their sex in the birth register if:

(a)        the person is at least 18;

(b)        the person’s birth is registered in the ACT;

(c)        the person believes their sex to be the sex nominated in the application (the “altered sex”), and

(d)       has received appropriate clinical treatment for alteration of the person’s sex or is an intersex person.

The same type of application can be made by the parents (or the only parent named in the register or no other surviving parent) of a child under 18.

The application must be accompanied by (for an adult):

(a)        A statement by a doctor, or by a psychologist, certifying that the person:

(i)                 has received appropriate clinical treatment for alteration of the person’s sex; or

(ii)              is an intersex person; and

(b)        Documents confirming the person as born in the ACT or has had their birth registered in the ACT; and

(c)        Any other documents and information that are prescribed.

The same apply for a child but in addition a statement signed by the parents of or a person with parental responsibility for, the child stating that alteration on the record of the child’s sex is in the best interests of the child.

New South Wales

An application for change of sex on the birth register must be accompanied by:

(a)               statutory declarations by two doctors, or by two medical practitioners registered under the law of any other Australian State, verifying that the person the subject of the application has undergone a sex affirmation procedure;

(b)              a signed statement by each of the two doctors (or two medical practitioners) declaring that the doctor or practitioner concerned sighted proof of the identity of the person the subject of the application when making the statutory declaration;

(c)               documentary proof, to the Registrar of Births, Deaths and Marriages’ satisfaction:

(i)                 that the person is an Australian citizen or permanent resident of Australia, and

(ii)              that the person lives, and has lived for at least one year, in New South Wales.

The change can apply to a person aged 18 or above whose birth is registered in New South Wales and who has undergone a sex affirmation procedure or concerning a child with an application by the parents of a child (or a parent of the applicant as a sole parent) or the guardian of a child where the child’s birth is registered in New South Wales and who has undergone a sex affirmation procedure.

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.

New South Wales recognises gender of:

• male;
• female;
• unspecified.

The last was clear, following the decision of the High Court in NSW Registrar of Births, Deaths and Marriages v. Norrie [2014] HCA 11.  The opening words of the High Court were:

            “Not all human beings can be classified by sex as either male or female.”

Northern Territory

An adult may apply to the Registrar of Births, Deaths and Marriages to change the adult’s sex or gender if:

(a)        the adult’s birth is entered in the Register;

(b)        the adult believes the adult’s sex or gender to be the sex or gender specified in the application; and

(c)        the adult:

(i)                 has received appropriate clinical treatment in relation to the adult’s sex or gender; or

(ii)              is an intersex person.

Similarly, the parents of a child may apply concerning the child.  That application may be made by one parent if the applicant is the sole parent named in the registration of the child’s birth or the applicant is the only surviving parent of the child.  The application may also be made by the child’s guardian.  The Northern Territory recognises sex or gender of:

• female;
• male;
• non-binary;
• unspecified.

Queensland

An application for reassignment of sex is made by an adult on behalf of a child to the Registrar of Births, Deaths and Marriages.  Alternatively, a Magistrates Court in respect of a child can make an order.  The application must be accompanied by:

1.      Statutory declarations by two doctors verifying that the person the subject of the application has undergone sexual reassignment surgery; or

2.      A recognition certificate;

3.      Such other information or documents as prescribed.  The statutory declaration can be made by a doctor in another country.

Sexual reassignment surgery is defined as meaning:

            “A surgical procedure involving the alteration of a person’s reproductive organs carried out –

(a)         to help the person to be considered a member of the opposite sex; or

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

Recognition certificate is defined as meaning a certificate issued under the law of another State that identifies the person as the subject of the certificate as –

(a)                           having undergone sexual reassignment surgery; and

(b)                           being the sex stated in the certificate.

South Australia

Under the Births, Deaths and Marriages Registration Act 1996 (SA) an adult whose birth is registered in South Australia may apply to the Registrar for registration of a change to the person’s sex or gender identity.  The recognised sex or gender identity are:

• male;
• female;
• non-binary;
• indeterminate/intersex/unspecified.

Similarly, an application can be made for a child under 18 if the child’s birth is registered in South Australia and the Magistrates Court approves the making of the application. 

The application must be accompanied by:

·         A statement by a medical practitioner or psychologist certifying that the person has undertaken a sufficient amount of appropriate clinical treatment in relation to the person’s sex or gender identity (including in the case of a person whose sex or gender identity has now become determinate); or

·         In the case of an applicant in relation whom a designated certificate or a prescribed notification has been issued;

·         A copy of either; and

·         A statement of that kind by the medical practitioner or psychologist or by a medical practitioner and psychologist certifying that the person has undertaken a sufficient amount of appropriate clinical treatment in the jurisdiction that issued the designated certificate or prescribed notification.

Designated certificate means the certificate relating to the recognition of sex or gender identity issued under the law of another jurisdiction and recognised by the Registrar for the purposes of this part.

Prescribed notification means a notification issued by another registering authority and recognised by the Registrar for the purposes of this part.

The medical practitioner and psychologist refer to medical practitioners and psychologists practising in Australia.

Tasmania

The Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 has just been enacted.  There is no longer a requirement to register the sex or gender at birth of a child.

Any person over 16 can apply to register a change of gender. The application must include:

·         A gender declaration confirming the application “identifies as being of the gender specified in the application lives, or seeks to live, as a person of that gender” and

·         Any other document or information the Registrar reasonably requires.

It is not necessary for an applicant to have undertaken reassignment surgery.  Gender may be recorded as male, female, indeterminate, non-binary, or as neither entirely male nor entirely female.  No more than one change of gender can occur within a 12 month period.

Parents or guardians of a child under 16 can apply to register a change in the child’s gender on the same basis.  There is also a requirement that any application relating to a person under 18 should be accompanied by evidence that the child has received appropriate counselling.  Consent of both parents is required unless there is only one parent named in the child’s birth registration, sole surviving parent or sole guardian or where a magistrate has approved the making of the application. 

Victoria

A person can apply for alteration of the sex in the birth register if the person is 18 or over whose birth is registered in Victoria and who has undergone sex affirmation surgery.  This means a surgical procedure involving the alteration of a person’s reproductive organs carried out for the purpose of assisting the person to be considered to be a member of the opposite sex.  There must be statutory declarations by two doctors or two medical practitioners registered under the law of a place where the sex affirmation surgery was performed who performed the surgery or provided other medical treatment to the applicant in connection with the applicant’s transsexualism.  However if it is not reasonably practicable where the surgery has been carried outside Australia, the Registrar may instead require that the application includes statutory declarations by two persons each of whom is either:

(a)               A medical practitioner registered under the law of the place where the surgery is performed who will verify that the practitioner has examined medical records, that he or she believes to be authentic, confirming that the surgery was performed; or

(b)              A doctor or medical practitioner registered under the law of an Australian State or Territory, who the Registrar considers is adequately experienced in treating persons in connection with transsexualism and who will verify that the applicant appears to have undergone sex affirmation surgery.

Interstate recognition certificates are recognised in Victoria and interstate birth certificates can be reissued in Victoria.  There appears to be no ability to change the sex or gender of a child on the birth register, albeit it is possible to change the child’s name.

Update for Victoria

On 27 August 2019 Victorian Parliament passed the Births, Deaths and Marriages Registration Amendment Act 2019 (Vic).  As of 30 August 2019, the Bill is yet to receive royal assent.  It is to come into operation on a day or days to be proclaimed but if not otherwise stated, by 1 May 2020.  The Bill once enacted amends the Births, Deaths and Marriages Registration Act 1996 (Vic) and other legislation:

1.      To provide for applications to alter a record of sex on a birth registration to a sex descriptor nominated by an applicant.

2.      To provide for the issuing of a document acknowledging the name and sex of a person who is aged 18 years or over and whose birth is registered in a place other than Victoria.

3.      To remove the requirement that a person has undergone sex affirmation surgery in respect of applications to alter a record of sex in a birth registration or for the issuing of a document acknowledging name and sex.

4.      To provide for alteration of the record of a child’s sex in a birth’s registration.

5.      To provide for the issuing of a document acknowledging the name and sex of a child whose birth is registered in a place other than Victoria.

6.      To provide for the requirements in respect of applications to the Registrar of Births, Deaths and Marriages to alter the record of a person’s sex on a birth registration or for the issuing of a document acknowledging name and sex by restricted persons.

The Bill will remove the current requirement for transgender people to undergo sex reassignment surgery.  Instead they will be free to self-nominate their sex as male, female or many other non-binary descriptors of their choice.

Children will also be able to alter the gender on their birth certificate, provided they have parental support and a statement from a doctor or registered psychologist stating that the decision is in the child’s best interest.

Victoria is the fifth jurisdiction in Australia to do so, after Tasmania, Northern Territory, South Australia and the Australian Capital Territory.

Attorney-General Jill Hennessy said:

            “These important new laws are about ensuring everyone can live their life as they choose, and that includes having a birth certificate that reflects their true identity.

            The current surgery requirements sends a painful and false message that there is something wrong with being trans or gender diverse that needs to be ‘fixed’ – that’s why we are removing this cruel and unfair barrier.”

Transgender Victoria spokeswoman Brenda Appleton said the powerful speeches in Parliament help to heal the damage from the debate when the Bill was first presented three years ago:

            “Trans rights are human rights and we welcome the passing of this Bill.  It is important that we can all have documents which reflect who we are and enable us to get on with our lives with pride rather than hiding in the closet.”

Sage Akouri from Equality Australia said:

            “My human right to identity to documents that reflect who I am should never have been debated in Parliament. 

            Changing my sex on my birth certificate gives me a sense of safety that I have never had before.”

Western Australia

Under the Gender Reassignment Act 2000 (WA) where a person has undergone a reassignment procedure (before or after the commencement of the Act and within Western Australia or elsewhere) application may be made to the Board for the issue of a recognition certificate.  The application is either made by an adult or by the child’s guardian.  Reassignment procedure means a medical or surgical procedure (or a combination of such procedures) to alter the genitals and other gender characteristics of a person, identified by a birth certificate as a male or female, so that the person will be identified as a person of the opposite sex and includes, in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child’s gender characteristics.

Gender characteristics means the physical characteristics by virtue of which a person is identified as male or female.

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.

2.      Can a transgender person get the name and gender marker changed on their birth certificate, driver’s licence/passport/national ID card?  If yes, how?

The driver’s licence follows the birth certificate: Yes.

A passport can issue setting out male, female or (indeterminate/intersex/unspecified).  The Australian Passport Office advises: 

“Sex and gender diverse passport applicants

We can issue a passport to sex and gender diverse applicants, identifying them as M (male), F (female) or X (indeterminate/intersex/unspecified).

If you are applying for a passport in a sex different from that recorded on your birth certificate or your previous Australian passport, you will need to complete a full passport application form and provide original documents as evidence of your identity, citizenship and preferred sex.

If you are also changing your name, you will need to present a change-of-name certificate issued by an Australian Registry of Births, Deaths and Marriages (RBDM) (link is external) or a legalised foreign equivalent.

Sex and gender diverse passport holders should be aware that while Australian travel documents are issued in accordance with international standards, those travelling on a passport showing 'X' in the sex field may encounter difficulties when crossing international borders due to their infrequent use.  The Department of Foreign Affairs and Trade cannot guarantee that a passport showing 'X' in the sex field will be accepted for entry or transit by another country. See Lesbian, gay, bisexual, trans and intersex travellers (link is external) for further travel advice.

 

Documentation required as evidence of your preferred sex

Surgery is not a prerequisite for a passport to be issued in your preferred sex.

You can provide one of the following documents to support your passport application:

·               a gender recognition certificate issued by the Gender Reassignment Board, or

·               a revised birth certificate showing the new sex issued by an RBDM, or

·               a recognised details certificate, which records your new sex and current name, issued by an RBDM.

Alternatively, or if you are transitioning to another sex, you can obtain a statement from a registered medical practitioner or psychologist that you have had or are receiving appropriate clinical treatment for gender transition. The nature of the treatment does not have to be specified. This advice should be provided on form B14 - Declaration sex gender of passport applicant (565.08 KB)

If you wish to have your sex recorded in your passport as X, we need confirmation from a registered medical practitioner or psychologist that you are of indeterminate sex or are intersex. This advice should be provided on form B14 - Declaration sex gender of passport applicant (565.08 KB)

.

Replacement passport for sex and gender diverse applicants

If you hold a passport with at least two years validity remaining, and you wish to change the sex and/or the name…”

There is no national ID card. 

3.      Does changing the gender marker on a birth certificate legally change one’s sex?  Will the court recognise this change, for example, in a case where the court was deciding the validity of a marriage – would the court give regard to the original birth certificate or the corrected birth certificate?

The birth certificate would be determinative of the issue. 

4.      Does your jurisdiction recognise the third gender option?  What are the legal consequences if a person opts to be “non-binary”?

The High Court said this in Norrie about the New South Wales Act:

            “The Act does not require that people who, having undergone a sex affirmation procedure, remain of indeterminate sex – that is, neither male nor female – must be registered, inaccurately, as one or the other.  The Act itself recognises that a person may be other than male or female and therefore may be taken to permit the registration sought, as “non-specific”.”

Family Law

1.      Do people have a right to marry without regard to gender – can a person’s sex, whether signed at birth or recognised following transitioning, be used to determine their eligibility to marry?

Since December 2017 the definition of marriage means the “union of 2 people to the exclusion of all others, voluntarily entered into for life” and is therefore non-discriminatory.  This change followed the overwhelming vote by the Australian populace in the postal plebiscite, followed by amending legislation passed by the Federal Parliament.

2.      Does gender transition during a subsisting marriage effect the validity of one’s marriage? 

No.

3.      Is there a requirement in terms of the laws of your jurisdiction for transgender people that disclose their transgender status to the intended spouse?  If so, what is the consequence of non-disclosure?

Not applicable.

4.      Does being transgender affect parental rights? Have there been any child custody cases in your jurisdiction regarding the parental rights of transgender parents?

As a matter of law it is irrelevant. 

In Re Carla (Medical Procedure) [2016] FamCA 7, the court formed the view that the bilateral removal of Carla’s gonads (where Carla was aged 5) where she identified as a young girl although she was born genetically male, did not need court approval:

            “Although having no female reproductive organs, Carla was born with the external appearance of a female child, but with male gonads not contained within the scrotum.  Her loving parents, after obtaining expert medical advice and support, determined to rear her as a female and to review that decision in close consultation with her medical advisers as Carla grew.  Surgery already performed on Carla has enhanced the appearance of her female genitalia.”

The court determined that court approval was not needed – although it was granted in the case.  The case has been criticised by intersex advocates for giving carte blanche to doctors and parents to perform surgery on intersex children who were not in a position to determine until they are older and therefore may have long lasting psychological impact. 

In Alessi & Groves [2018] FCCA 3730, the mother was critical of the father because, she said, he treated one of the children differently because that child was transgender.

Oldham and Avis [2017] FCCA 1480, was a decision in a de facto relationship property settlement case before the postal plebiscite was held in Australia and therefore before marriage was changed from purely a heterosexual relationship. 

The case involved a gay male couple dealing with property settlement. 

Judge Harman said at [17] to [30]:

“17.     De facto relationship causes can and routinely do require a threshold, jurisdictional hearing, sometimes a hearing of several days in duration, to lead and test evidence and enable the court to make findings of fact sufficient to found a declaration in a de facto relationship sufficient to establish jurisdiction existed.  Such hearings consume the resources of the parties and the court.

18.       The second and profoundly important difference between a marriage and a de facto relationship is the reality that marriage is available only to heterosexual couples.  I put it in those terms not to seek, in any way, to cause embarrassment for these litigants, but to seek to avoid the use of binary language or to suggest a duality of gender or sexuality.

19.       There are many manifestations of gender and many expressions of sexuality beyond the duality of male and female and homosexual and heterosexual, all of which are entirely valid, lived experiences of individuals in which fall without the binary duality of male and female or “straight” or “gay”. 

20.       Gender is not binary and need not be viewed as a duality of gender.  Individuals may identify their gender as male or female or as a gender, androgynous, bigender, gender fluid, gender queer, gender non-confirming, gender variant, intersex, transgender or third gender.  But to marry a person must confirm to heteronormative descriptors of male or female (and the parties must identify differently). 

21.       There are many sexualities and individuals may identify as straight or gay or lesbian or as bi, gyne sexual, pansexual, polyamorous, skoliosexual, asexual, androsexual, aromantic, asexual, queer, demiromantic, curious or however they wish.

22.       These parties cannot marry and marriage is not available to them as they are of the same gender.

23.       A case such as this assists in understanding the difference between a “right” and a “privilege”. 

24.       A right may be universal or it may not.  For example, the rights set out in the Universal Declaration of Human Rights 1948 (to which Australia is a signatory) are intended to apply to all without reservation.  This includes rights to life, liberty and security of person, freedom from slavery and torture and rights of due process and education.

25.       Some rights are not universal.  Such rights include the right to vote, to engage in sexual relationships (with laws prescribing an age of consent), the right to obtain medical treatment necessary to a person’s health and well-being or the “right” to drive.  Such reservation of rights with pre-conditions most commonly arise due to concerns regarding the legal competence or “capacity” of the individual, usually children (such as discussed by reference to “Gillet Competence” and with a desire to protect the individual from harm.  I.e. removal of rights might arise in the context of punishment. 

26.       When a “right” ceases to be universal it becomes a privilege.  It is a right to those who meet the preconditions enlivening application of the right but is, to those who do, a privilege.  Such rights and privileges are readily discernible with respect to the social and legal differences between marriage and de facto relationships. 

27.       Under Australian law, any adult is free and has, if you will, the “right” to enter into a relationship with any consenting adult of their choice.  There is, appropriately, no limit arising from race, religion or, important, general or sexuality.  The same cannot be said of marriage.  Marriage reserves or privileges the right to marry to those of the opposite sex and, thereby effectively privileges marriage to heterosexual couples and excluding same sex and non-heterosexual couples.  Thus, marriage is not a right enjoyed by adults but a privilege enjoyed by some. 

28.       Marriage is a privilege reserved for those who meet the implied precondition of heterosexuality and which is not available to and excludes those who fail to meet the implied pre-condition of heterosexuality.  Thus, whilst adults of any faith or race are now free to marry, adults of certain sexual orientations are not free to marry.  That is a significant social and legal difference between the two. 

29.       The right to enter a relationship is a universal right.  The right to marry is not.  In a de facto relationship, an individual can choose a partner of any race, faith, gender or sexuality.  However, an individual must choose a marriage partner of the opposite sex. These parties were not and are not free to marry.  They can only rely upon the existence of a de facto relationship.

30.       In Australian law, marriage is a secular institution created by the Marriage Act 1961.  Marriage may occur in a religious context and in accordance with religious beliefs or practices but, even then, must still occur in accordance with secular law to be legally recognised.”

As I said, this case in its commentary on marriage is now out of date in the sense that following the postal plebiscite in 2007 and amendments to the Marriage Act 1961 in December 2017, except for cases of consanguinity, adults are free to marry other adults, irrespective of gender or sexuality. 

Parenting Matters

The Family Law Act applies equally whether someone is straight or LGBTI. 

The Family Court has set out criteria for the appointment of Independent Children’s Lawyers.[2]  Three of the criteria which appears to be relevant if one of the parties has transitioned or is transitioning are:

·         In cases where there is an apparently intractable conflict between the parents.

·         Whether sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge upon the child’s welfare.

·         Where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be antisocial to the extent that it seriously impinges on the child’s welfare.

As to the sexual preferences criteria, the Court said this (remembering that it was a case decided in 1994):

            “Disputes of this kind typically raise claims that a homosexual parent and/or their new partner is unfit by virtue of that factor alone.  It is clear, however, following cases…that the nature of a party’s sexual relationships is relevant to the Court’s proceedings only to the extent that it affects the parenting abilities or the welfare of a child in a particular case…The particular kind of acrimony which arises in such cases, considered together with the Court’s obligation to make a decision from the viewpoint of a child’s best interest, may warrant the appointment of [an Independent Children’s Lawyer].  This is so that the impact, if there is any, of a party or partner’s sexual preference can be properly and dispassionately assessed for its relevance to the Court’s enquiry into the best interest of the child.”

Cases between warring lesbian couples or gay and lesbian parents are now relatively commonplace.  The concern I would suggest that the Court has now is the reaction to the other parent and the children to a parent who is transitioning or who has transitioned.

A recent case from England is illustrative of the point: In the matter of M (Children) [2017] EWFC 4[3].

This was a decision of the English Court of Appeal.

In the words of the Court:

            “The father is transgender and left the family home in June 2015 to live as a transgender person.  She now lives as a woman.  Because she is transgender – and for that reason alone – the father is shunned by the North Manchester Charedi Jewish community (the community), and because she is transgender – and for that reason alone – the children face ostracism by the community if they have direct contact with her.” 

Peter Jackson J characterised the practices within the community as amounting to:

“Unlawful discrimination against and victimisation of the father and the children because of the father’s transgender status”.

Peter Jackson J identified 15 arguments in favour of direct contact which he described as “formidable”.  He could identify only two factors that spoke against direct contact.  Of the first, relating to the father’s “dependability”, he found that “…if it were the only obstacle to direct contact, it could probably be overcome”.  That left only one factor, which he described as “the central question”, namely “the reaction of the community if the children were to have direct contact with the father”.

His Honour found:

            “The children will suffer serious harm if they are deprived of a relationship with their father.”

He decided that there should be no direct contact.  First:

            “Having considered all the evidence, I am driven to the conclusion that there is a real risk, amounting to a probability, that these children and their mother will be rejected by the community if the children were to have face-to-face contact with their father.”

Then:

            “I…reject the bold proposition that seeing the father would be too much for the children.  Children are goodhearted and adaptable and, given sensitive support, I am sure that these children could adapt considerably to the changes in their father.  The truth is that for the children to see their father would be too much for the adults.”

And then this:

            “So, weighing up the profound consequences for the children’s welfare of ordering or not ordering direct contact with their father, I have reached the unwelcome conclusion that the likelihood of the children and their mother being marginalised or excluded by the ultra-orthodox community is so real, and the consequence is so great, that this one factor, despite its many disadvantages, must prevail over many advances of contact.”

The Appeal Judges said:

            “We suspect that many reading this will find the outcome both surprising and disturbing, thinking to themselves, and we can understand why, how can this be so, how can this be right?”

Their Honours ultimately overturned the decision, referring the matter back for further hearing.

One Rabbi, Rabbi Andrew Oppenheimer, described charedi communities as “warm, close-knit and supportive communities for which the teachings of Torah Judaism guide all aspects of their lives… The teachings of the Torah also highlight integrity, respect for others, peace and justice (including respect for the law of a country) and place the family and its welfare at the heart of life…Allegiance to the lifestyle…means of necessity that members have traditional values and seek to guard their children and themselves against what they regard as the dangers and excesses of modern open society.”

Rabbi Oppenheimer was clear that transgender and procedures to achieve sex change violate a number of basic principles in Torah Law, including the prohibition against castration (Leviticus 22:24) and the prohibition against wearing garments of the opposite sex (Deuteronomy 22:5).

Rabbi Oppenheimer said:

            “Where a person decides to take action likely to be irreversible to transgender, Ultra-orthodox community members will invariably take the view that, by embarking on that course, the transgender person has breached the contract which they entered into when they married their wife to observe the Torah and to establish and bring up a family in accordance with its laws.  Furthermore, members of the community will naturally wish to protect themselves and their families from any discussion of the painful issues involved, especially bearing in mind the show of position in the community from the standpoint of open society.  Knowledge of transgender amongst children in the Ultra-orthodox Jewish community is almost non-existent, for the reasons mentioned above concerning their lack of access to Internet and the media.  There is no known precedent in the UK of a transgender person being accepted living in an Ultra-orthodox community.

            The result will be that community members will expect the family of the transgender person to limit their contact with him or her as far as possible.  If the family of the transgender person nevertheless seeks, or is forced, to maintain contact with that person, they will open themselves up to very serious consequences indeed.  The families around them will effectively ostracise them by not allowing their children to have more than the most limited contact with that family’s children.  The impact on the family in such circumstances in terms of socialisation will be devastating. 

            In considering the best interests of the children, the obvious conclusion from the discussion above is that the children of an Ultra-orthodox union cannot and should not be expected to have any direct contact with the father in such circumstances.  It will no doubt be argued against this approach that it is cruel, lacking tolerance, unnecessary and denies the rights of the father.  But Torah law (halacha) has the same approach to English family law in this type of situation, regarding the issues of residents and contact, that the interests of the children are paramount.  In other words, the father is expected to give precedence to the needs of the children over his own needs.”

In the words of the Court, Rabbi Oppenheimer’s chilling explanation as to why indirect contact would not give rise to a risk of ostracism was:

            “It would not enable the children to have “a living relationship”.”

Peter Jackson J’s response to this was brisk:

            “In balancing the advantages and disadvantages of the children being allowed to see their father, I apply the law of the land.  Some witnesses in these proceedings assert that gay or transgender persons have made a lifestyle choice and must take the consequences.  The law, however, recognises the reality that one’s true sexuality and gender are no more matters of choice than the colour of one’s eyes or skin.

            It has also been said that transgender is a sin.  Sin is not valid legal currency.  The currency of the law is the recognition, protection and balancing out of legal rights and obligations.  In this case, to be recognised and respected as a transgender person is a right, as is the right to follow one’s religion.  Likewise, each individual is under an obligation to respect the rights of others, and above all the rights of the children.”

A Rabbi Ariel Abel had a contrasting position.  He emphasised the central importance of honouring one’s parents within Jewish law and tradition.  He said there is scarcely any circumstance in which the obligation to honour one’s father does not apply.  Even if the father is an outright sinner, which is not in his view a consideration in this case, the obligation persists.  In relation to transgender, Rabbi Abel considered that there is a plurality of opinion and that the biblical position may be qualified.  He contends that there is no valid reason why any person should plead Ultra-orthodox faith as a result to disenfranchise a person on the position of the father:

            “There is no legitimate reason to maintain that children who are transgender – parented cannot experience in the Ultra-orthodox community a full and satisfying orthodox Jewish life, physically, spiritually, emotionally and communally.”

On the contrary, there is every reason to reunite parent and child as it is the wellbeing of the nuclear family and not the social preferences of the wider community that truly matter.  He argued that the transgender issue could not be ignored and that parents’ relationships with their children were inalienable. 

Rabbi Abel objected to the concept of the faith as a club from which people could be ejected, although he observed that this evidently happens.  An approach of this kind, practically amounting to a belief, raises itself to the surface, usually in worse case scenarios.  This is a social cultural reality, not a valid orthodox reason for separating children from parents.  There is a lamentable habit of censoring.  Children of divorced parents can be seated separately from other children and he had experience of this, something he described as beggaring belief.  In his view, this should not be accommodated or excused in Jewish or English law.  On the other hand, he had never heard of table ostracism in practice, provided that the contentious matter was treated privately within the family, and not paraded before the community.  However, he accepted that ostracism for these children could very possibly happen if the situation was not managed correctly with professional help.  What was needed was psychological support: religious teachers should be kept out of it.

The Rabbi accepted that the present circumstances would be a challenge to the insular North Manchester Community.  He argued that when it came to matters of life and death, you have to break free and seek to work with the unfamiliar problem. He gave as an example creative arrangements that might be made to allow the father to participate in A’s bar mitzvah.  There are ways, and it can happen if there is a will.  The issues are significant, but not insurmountable.  The community is not monolithic but multifarious.  It will step back if proper arrangements are made by both parents.  If the situation is unregulated, the community will take the matter into its own hands.  If direct contact was ordered, and the law laid down, he did not think that the community would “go to the wire” fighting an unwinnable battle.

Justice Peter Jackson had held:

            “Having considered all the evidence, I am driven to the conclusion that there is a real risk, amounting to a probability, that these children and their mother would be rejected by their community if the children were to have face-to-face contact with their father.  I say “driven” because I began the hearing with a strong disposition to find that a community described by Rabbi Oppenheimer as “warm, close and supportive” and living under a religious law that “highlights integrity, respect for others, justice and peace” could tolerate (albeit without approval) these children’s right to and need for a relationship with their father…I have reached a welcome conclusion that the likelihood of the children and their mother being marginalised or excluding by the Ultra-orthodox community is so real, and the consequence is so great, that this one factor, despite its many disadvantages, must prevail over the many advances of contact.

            I therefore conclude with real regret, knowing the pain that it must cause, that the father’s application for direct contact must be refused.”

The Court of Appeal held:

            “The fact is, as the daily business of the Family Division so vividly demonstrates, that we live today in a world where the family takes many forms and where surrogacy, IVF, same-sex relationships, same-sex marriage and transgenderism, for example, are no longer treated as they were in even the quite recent past.

            What are the characteristics of the reasonable man or woman in contemporary British society?  The answer…is:

                        “If the reasonable man or woman is receptive to change he or she is also broadminded, tolerant, easy-going and slow to condemn.  We live, or strive to live, in a tolerant society increasingly alive to the need to guard against the tyranny which majority opinion may impose on those who, for whatever reason, comprise a small, weak, unpopular or voiceless minority.  The quality under the law, human rights and the protection of minorities, particularly small minorities, have to be more than what Brennan J in the High Court of Australian once memorably described as ‘the incantations of legal rhetoric’.”

            …First, we must recognise that equality of opportunity is a fundamental value of our society: equality as between different communities, social groupings and creeds, and equality as between men and women, boys and girls.  Secondly, we foster, encourage and facilitate aspiration: both aspiration is a virtue in itself and, to the extent that it is practicable and reasonable, the child’s own aspirations…Thirdly, our objective must be to bring the child to adulthood in such a way that the child is best equipped both to decide what kind of life they want to lead – what kind of person they want to be – and to give it effect so far as practicable to their aspirations.  Put shortly, our objective must be to maximise the child’s opportunity in every sphere of life as they enter adulthood and the corollary of this, where the decision has been devolved to a ‘judicial parent’, is that the judge must be cautious about approving a regime which may have the effect of foreclosing or unduly limiting the child’s ability to make such decisions in the future.”

5.      Can transgender people adopt children in your jurisdiction?

Yes.

Healthcare and coverage

1.      Do the courts in your jurisdiction consider gender dysphoria as a serious medical condition?

See above as to Re Kelvin.

2.      Have there been reported discrimination cases against healthcare professionals towards transgender people who are seeking treatment?

Not to my knowledge.

3.      Do any government healthcare programmes cover gender confirmation surgery or other transition related medical treatment?  What about private healthcare insurance programmes?

Medicare does not cover gender confirmation surgery or other transition related medical treatments.  I am unaware as to private health insurance.

4.      What does the law say about insurance companies denying coverage for routine medical treatments because someone is transgender?

It is an act of discrimination and therefore unlawful.

Criminal law

1.      Are there laws that prohibit hate or bias crimes against transgender people?

No not specifically, save as to anti-vilification laws.  For example, section 124A of the Anti-Discrimination Act 1991 (Qld) provides:

“(1)     A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.

(2)        Subsection (1) does not make unlawful —

(a)        the publication of a fair report of a public act mentioned in subsection (1) ; or

(b)        the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation; or

(c)        a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate about, and expositions of, any act or matter.”

The most far reaching law is that contained in New South Wales.  Both Houses of the New South Wales Parliament unanimously passed in June 2018 the Crimes Amendment (Publicly Threatening and Inciting Violence) Bill 2018 to repeal the vilification laws under the Anti-Discrimination Act 1977 (NSW) and replace it with criminal legislation with up to an explicit 3 year jail term.  Section 93Z of the Crimes Act 1900 (NSW) now provides:

“(1)     A person who, by a public act, intentionally or recklessly threatens or incites violence towards another person or a group of persons on any of the following grounds is guilty of an offence:

(a)        the race of the other person or one or more of the members of the group,

(b)        that the other person has, or one or more of the members of the group have, a specific religious belief or affiliation,

(c)        the sexual orientation of the other person or one or more of the members of the group,

(d)        the gender identity of the other person or one or more of the members of the group,

(e)        that the other person is, or one or more of the members of the group are, of intersex status,

(f)         that the other person has, or one or more of the members of the group have, HIV or AIDS.

Maximum penalty:

(a)           in the case of an individual--100 penalty units or imprisonment for 3 years (or both), or

(b)           in the case of a corporation--500 penalty units.

(2)        In determining whether an alleged offender has committed an offence against this section, it is irrelevant whether the alleged offender's assumptions or beliefs about an attribute of another person or a member of a group of persons referred to in subsection (1) (a)-(f) were correct or incorrect at the time that the offence is alleged to have been committed.

(3)        In determining whether an alleged offender has committed an offence against this section of intentionally or recklessly inciting violence, it is irrelevant whether or not, in response to the alleged offender's public act, any person formed a state of mind or carried out any act of violence.

(4)        A prosecution for an offence against this section is not to be commenced without the approval of the Director of Public Prosecutions.

(5)        In this section:

"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.

"public act" includes:

(a)        any form of communication (including speaking, writing, displaying notices, playing of recorded material, broadcasting and communicating through social media and other electronic methods) to the public, and

(b)        any conduct (including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia) observable by the public, and

(c)        the distribution or dissemination of any matter to the public.

For the avoidance of doubt, an act may be a public act even if it occurs on private land.

"race" includes colour, nationality, descent and ethnic, ethno-religious or national origin.

"religious belief or affiliation" means holding or not holding a religious belief or view.

"sexual orientation" means a person's sexual orientation towards:

(a)        persons of the same sex, or

(b)        persons of a different sex, or

(c)        persons of the same sex and persons of a different sex.

"violence" includes violent conduct and

"violence towards a person or a group of persons" includes violence towards property of the person or a member of the group, respectively.”

Domestic violence laws apply equally if one or both of the parties is transgender compared to homophobic violence and harassment.  The domestic violence review undertaken in Queensland by Dame Quentin Bryce: Not now, not ever[4], noted that LGBTIQ people were much less likely to access the courts to seek relief against domestic violence.  This appears to be as to perceptions by LGBTIQ people as to the role of police and the courts and therefore a reluctance to engage.

The Taskforce stated:

      “The true nature and extent of domestic violence suffered by lesbian, gay, bisexual, transgender, and intersex (LGBTI) members of the community remains largely hidden.  Comparatively little data and research exists on the prevalence of domestic violence experienced by people that identify as LGBTI.  While focus on this issue is growing, both in academia and in policy, there is general acknowledgement that this violence is largely under-reported, under-researched, and under-responded…the limited research that does exist suggests that LGBTI people suffer domestic violence at the same rates or perhaps even higher than those in the broader community…similar to those in the broader community, there are social, political and legal impediments for LGBTI people in seeking assistance when suffering domestic violence.  However, there are a number of unique barriers in the LGBTI community, which are broadly reflective of wider issues of stigmatisation and marginalisation.  In particular, homophobia and discrimination are identified in the research as key barriers for LGBTI victims seeking the assistance they require… A lack of awareness, education and training as to the experiences of those in the LGBTI community meant that generally service providers were not able to provide these clients with the support they required.  While the study indicated that LGBTI clients were eventually able to locate appropriate services, this was generally after negative experiences with providers and substantial searching for one that met their needs.  Examples of negative experiences include men unable to locate necessary services or alternative accommodation, and in some instances transgender clients being referred for sexual reorientation instead of domestic and family support.

      The diversity and uniqueness of domestic violence experiences in the LGBTI community, as compared to the broader community, is a clear barrier to these victims receiving the support they require.”

In their book Speaking Out: Stopping Homophobic and Transphobic Abuse in Queensland^[5], authors Alan Berman and Shirleene Robinson noted the extraordinary abuse that LGBTI Queenslanders had received in the previous 2 years: 50% of male, 54% female, 69% of transgender male to female, 28% transgender female to male and 82% of other.

Abuse that had occurred within the last 2 years by sexuality: 56% lesbian, 49% gay, 48% bisexual and 72% other.

This accords with anecdotal evidence that trans people are amongst the most marginalised in the country and that domestic violence rates for trans people are considerably higher than those within same sex relationships let alone the broader community. 

As the Bryce report says so poignantly:

      “In October 2014, Queensland was shocked by the death of transgender woman Mayang Prasetyo, who was murdered, and her body subsequently mutilated, by her male partner.  He later killed himself after being confronted by the police.  This murder remains a devastating reminder of the existence in reality of domestic violence for LGBTI people, and the barriers we face as a community in addressing it.  It is critical that the wider community continues to seek out, hear and respond to the voices and experiences of those in our LGBTI community who experience domestic violence, to ensure their stories are not lost.”

2.      Are prison officials required to place a transgender inmate in the facility that matches the inmate’s gender identity?

I do not know the situation across Australia.  In Queensland at least, Queensland Corrective Services says for transgender prisoners to identify themselves on arrival, and:

“Queensland Corrective Services is committed to equality, diversity, inclusion and respect

for human rights as per the Anti-Discrimination Act 1991.

If assistance is required an appointment can be made to see a psychologist in the Centre.”

However, Bromdal, Mullen, Phillips and Gow[6], who note that there has been progression for transgender prisoners across Australia, the US, Italy and Canada, say:

“The experience of transgender prisoners as reported in this review are almost uniformly more difficult than other prisoners. Their “otherness” is used as a weapon against them by fellow prisoners through intimidation and violence (including sexual) and by prison officers through neglect and ignorance.”

Immigration

1.      May a transgender immigrant be granted asylum in your jurisdiction because of anti-transgender harassment in their country of origin?

Yes.  In S395/2002 v. Minister for Immigration Multicultural Affairs [2003] HCA 71, two applications were made by homosexual men in Bangladesh as refugees in Australia.  They claimed that they had lived in a domestic relationship and they had been ostracized by their families.  The relevant Tribunal had found that homosexuality was not accepted or condoned by society in Bangladesh, that it is not possible to live openly as a homosexual, but that people prefer to ignore the issue rather than confront it and that “Bangladeshi men can have homosexual affairs or relationships, provided they are discreet”.  The Tribunal concluded that “It is not possible to live openly as a homosexual in Bangladesh”.  Justices McHugh and Kirby said:

            “The purpose of the [Refugee] Convention is to protect the individuals of every country from persecution on the grounds identified in the Convention whenever their governments wish to inflict, or are powerless to prevent, that persecution.  Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, for death and torture to state sponsored or condoned discrimination, social life and employment.  Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it.  But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality.  The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person afflicted must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors.  Nor would it give protection to membership of many a “particular social group” if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution.  Similarly, it would often fail to give protection to people who were persecuted for reasons of race and nationality if it was a condition of protection that they should take steps to conceal their race or nationality.

            History has long shown that persons holding religious beliefs or political opinions, be members of particular social groups or having particular racial or national origins are especially vulnerable to persecution from the national authorities.  The object of the signatories to the Convention was to protect the holding of such beliefs, opinions, membership and origins by giving the persons concerned refuge in the signatory countries when their country of nationality would not protect them.  It would undermine the object of the Convention if the signatory countries required them to modify their beliefs or opinions or to hide their race, nationality and membership of particular social groups before their countries would give them protection under the Convention…Subject to the law, each person is free to associate with any other person to act as he or she pleases, however much other individuals or groups may disapprove of that person’s associations or particular mode of life.  This is the underlying assumption of the rule of law.  Subject to the law of the society in which they live, homosexuals as well as heterosexuals are free to associate with such persons as they wish and deliver as they please.

            If a person claims refugee status on the ground that the law of the country of his or her nationality penalises homosexual conduct, two questions always arise.  First, is there a real chance that the applicant will be prosecuted if returned to the country of nationality?  Second, are the prosecution and the potential penalty appropriate and adapted to achieving a legitimate object of the country of nationality?  In determining whether the prosecution and penalty can be classified as the legitimate object of that country, international human rights standards as well as the laws and culture of the country are relevant matters.  If the first of these questions is answered: yes, the second: no, the claim of refugee status must be upheld even if the applicant has conducted him or herself in a way that is likely to attract prosecution.

            In some countries, there may be little or no change of a law against homosexual conduct being enforced [such as in Bangladesh].

            Even where such a law…is not enforced, however, there may be a real chance that a homosexual person will suffer serious harm – bashings or blackmail, for example – that the government of the country will not or cannot adequately supress.  That appears to be the position in Bangladesh.  If the harm is inflicted for a Convention reason and is serious enough to constitute persecution, the homosexual person is entitled to protection under the Convention.  It is immaterial that the conduct of the applicant for refugee status disclosed his or her identity as a homosexual and attracted the attention of the persecutors.”

Their Honours then made plain that the test should be whether someone can live openly without the fear of persecution.

The reasoning in that case could well apply to a transgender immigrant.  Guidelines from the Department of Home Affairs in considering refugee applications based on sexuality refer to lesbian, gay, bisexual, transgender and intersex applicants.  There has not yet been a reported transgender case.

South African case

Zenobia du Toit has been kind enough to send me a copy of a South African case: KOS & Others v. Minister of Home Affairs [2017] [7].  The problem that the case illustrated concerned three married couples who married as husband and wife.  Subsequently:

            “After they had married, each of the transgender spouses underwent surgical and/or medical treatment to alter their sexual characteristics from those of a male to those of a female.  They did this because from an early age they had experienced tormenting gender dysphoria.  Their self-awareness was that of being trapped in a male body. Transitioning was the means to liberate them from their gender dysphoria and express their self-identification.”

The South African Alteration of Sex Description and Sex Status Act 49 of 2003 made provision for the formal acknowledgement, recordal and legal consequences of such transitions.  It allowed for the alteration, upon application of the Director-General of the Department of Home Affairs of a person’s sex description on the birth register and the provision to the person concerned of an altered birth certificate.  It also provided that a person whose sex description has been altered is deemed for all purposes to be a person of the sex description so altered “as from the date of the recording of such alteration”.  That Act provided that rights and obligations that are accrued to or been acquired by such a person before the alteration of his or her sex description are not adversely affected by the alteration.  As Binns-Ward J stated:

            “The legal consequences of the recognition of a sex/gender-change in terms of the Alteration Act are therefore wholly prospective from the date of the recordal of the Act does not have any retrospective effect.”

Further:

            “The recordal of a post nuptial sex/gender change in respect of either or both of the spouses has no effect on their mutual marital rights and obligations.  Those endure as long as the marriage does.  It also has no effect on the transgendered person’s rights against, and obligations to third parties.”

Once a person’s gender or sex description is altered on the birth register, then the sex descript is also altered on the population register.  One of the requirements of the Identification Act was to set out a person’s gender.  In a footnote this was stated:

            “The word ‘gender’ is used in the Identification Act to the same effect as the expression ‘sex description’ is in the Alteration Act.  Sex/gender classification in terms of the Identification Act currently operates on a binary model.  Everyone is either male or female.  Thamar Klein points out that, by contrast, ‘Australia, India, Nepal, New Zealand, and Pakistan, for example, all offer an additional legal sex/gender identification option, besides those of female and male, to citizens who identify themselves as otherwise.  Australia and New Zealand offer “X” besides “M” and “F” as sex/gender identification on passports, India has included “transgender” in the government citizen ID number system, and Pakistan uses the term “Unix” on the national identity cards of transgendered individuals, whereas Nepal has incorporated the category “other” for official identity documents.  In all cases, intersexed as well as gender-variant people may apply for these options.” (T. Klein, ‘Who decides whose gender? Medico-legal classifications of sex and gender and their impact on transgendered South Africans’ family rights’, (2012) 14(2) Ethnoscripts 12-34 (Universität Hamburg), at pp.22-23.)

While judgment in this matter was in the course of preparation it was announced in the news media that Canada also intends issuing ‘X – designated gender neutral passports and other identity documents to citizens who identify as being neither male nor female.’

Further:

            “The alteration of a person’s sex discrimination in terms of the Alteration Act also has other knock-on consequences.  Every person in the population register over the age of 16 is required to have an identity card (commonly called an ‘ID book’).  If for any reason the card does not correctly identify the holder’s particulars, he or she must apply for a replacement identity card.  It follows that anyone who has transitioned is obliged to apply for a new identity document, which necessarily will reflect a reassigned identity number incorporating an altered gender-related figure code. In order to be able to comply with that statutory obligation, he or she would be required first to obtain a formal recordal of the change in terms of the Alteration Act.  Making application under the Alteration Act in such cases will therefore be a matter of obligation, rather than one of choice.

            There must be a ‘recent photograph’ on the population register of every person over the age of 16.  The photograph must be provided or replaced every time such person applies for an identity card or a replacement identity card.  The identity card will therefore also include a photograph of the holder; in most cases reflecting the person’s appearance as recognisably male or female…If anyone is called upon by an ‘authorised officer’ to prove who he or she is, they are required to produce an ‘identity card’.  A driver’s licence or a passport, being documents ‘issued by the State and on which the name and a photograph of the holder appear’, would serve as an identity card for the purposes of proving one’s identity.”

Binns-Ward J said:

            “The many and various difficulties that can present for a person whose gender characteristics differ from those recorded on his or her identity card are not hard to imagine.  The evidence bears this out”

In each of the cases, the couples cherished their marriages and “they considered the fact that the registration of the old sex status of the transgender parties were the result of the public records showing that their marriages have become same-sex marriages to be equivalent to their marriage status.”  The Department of Home Affairs maintained that the applications by the transgender spouses under the Alteration Act could not be granted while their marriages remained registered.  Two of the applicants had their applications effectively refused because the Department had failed to make a decision in respect of them.  One of the applicants did alter his sex description.  But when it did so, the Department simultaneously deleted the particulars recorded in the population register of the applicant’s marriage.  It did this unasked.  It also changed the record of the wife’s surname to her maiden name.

The Department took its position because of the current statutory regime that provided a parallel system for the solemnisation of marriages, i.e. one route for opposite sex couples and the other route for same-sex couples. 

Binns-Ward J stated:

            “It perhaps bears emphasis, as an important aside, that sexual orientation or preference – the expression of a person’s sexuality – is not an issue in the current proceedings.  There is no evidence about the first to sixth’s applicants’ sexuality.  Nor was there any need for such.  As Lord Nicholls of Birkenhead thought it relevant to point out in Bellinger, ‘…a transsexual person is to be distinguished from a homosexual person.  A homosexual is a person who is attracted sexually to persons of the same sex’.  Many might think that that is to state the obvious, but the literature on transgenderism describes that there is an all too common tendency to conflate sex, gender and sexuality, which is misconceived.  The tendency is manifested in the reliance by the respondents, in explanation of their approach to the interpretation and administration of the Alteration Act in respect of persons married in terms of the Marriage Act who subsequently transition, and the reported widespread opposition to any amendment of the Marriage Act to permit the formalisation of marriages between homosexual couples.  The opposition to gay marriage was, amongst other things, advanced on the basis of ideas that ‘sex is…an essential determinate of the relationship called marriage’ and that ‘the capacity for natural heterosexual intercourse’ is essential for the subsistence of a marriage…That viewpoint, or opinions aligned to it, seem to reflect what the respondents…characterise as relevant ‘deep public and private sensibilities’ that allegedly bear on their ability to record the transgender spouses’ sex/gender change.”

The court noted that those views have long since been legally discredited. 

The court held:

            “I regret to say that the [Minister and Department’s] approach appears to have been coloured by the persisting influence of the religious and social prejudice against the recognition of same-sex unions that, according to their evidence, was accommodated by the decision not to amend the Marriage Act but to bring in the Civil Union Act alongside it instead. They have not identified a single provision in any of the legislation to which they refer that expressly forbids the processing and positive determination of the transgender spouses’ applications under the Alteration Act.  All that they have been able to point to are the associated-religious objections that reportedly influenced the legislator’s decision to introduce the Civil Union Act And leave the Marriage Act unamended.  They do not explain why those considerations should, or properly could, way to distort the plain meaning of the enactments as they appear in the statute book.

            What is also strikingly absent from the respondent’s answer is any acknowledgment of the expressly enshrined constitutional principle that statutes must be interpreted in a manner consistent with the promotion of the spirit, purport and object of the Bill of Rights…The manner in which the applications by the transgender spouses were treated manifests a regrettable lack of compliance by the Department with its constitutional obligations in a number of respects.”

The court held:

            “Many of life’s ordinary undertakings such as travel, legally driving a motor vehicle, or opening a banking account require every South African resident to carry one or more of the various types of identity card recognised in terms of the Identification Act.  As a practical experience of the transgender spouses testifies, identity cards do not serve those purposes well if they do not accurately reflect the actual identity of the cardholder as he/or she would present in ordinary circumstances to the outside world.  It will not help if anyone whose sex/gender characteristics have been altered from male to female is forced to keep a card showing their original sex/gender with a photograph depicting them as a person of the opposite sex to that which they actually appear to be.  Having regard to the objects of the Identification Act, no conceivable purpose could be served by maintaining the inaccurate record of the particulars of any individuals.  On the contrary, to do so would thwart the effective operation of the Act and impede the exercise of personal rights and freedoms.”

Not surprisingly, the applicants were successful.  The Department’s deletion of the record of marriage in one of the applicants and the wife’s surname back to her maiden name was “clearly unlawful”.

Jade September

Jade September is a transgender prisoner held at the Helderstroom Maximum Correctional Centre in South Africa.  She has applied to the Equality Court in Cape Town to compel the Departments of Justice and Correctional Services to allow her to dress as a woman, even though she is in a male prison. 

September was convicted of murder and sentenced to 15 years imprisonment.  She submitted in her court papers that her harassment comes from prison officials who force her to dress and behave like a man.  She says that the approach of officials violates her fundamental constitutional rights to equality and human dignity, including an order that the respondents permit her to express her gender and that she be respected in her gender identity while incarcerated.  She says she was forced to give up wearing a small amount of makeup in jail, to wear her hair long and braded or to wear female underwear and accessories.  She said that male prisoners treat her mostly with respect or indifference. Her problem was with the Correctional Service officials. 

The lawyer for the State, Karrishi Pillay said that:

            “The applicant’s treatment, while incarcerated, has been consistent with that of the males: there has been no unfair discrimination.”

Pillay argued that transgender requirements place September in a high risk category in the prison, which has a male population of about 770 inmates, most serving multiple sentences for violent crimes:

            “Correctional Centre culture is that male inmates take physical possession or ownership of other male prisoners who display feminine characteristics.  The applicant’s request for communal access to other male prisoners while expressing herself as female will expose her to sexual violence because male rape is an undeniably reality of incarceration.”

Her counsel, advocate Nicole Lewis argued one did not need to undergo surgical transition to be defined as transgender.  It had to do with gender identification.  The case is the first of its kind in South Africa.  Judgment has been reserved.  Ms September has indicated that if she is unsuccessful with the judgment that she will do everything necessary to appeal to the Constitutional Court.

Stephen Page

Page Provan

3 September 2019 

PS: The day after the presentation, the judgment was delivered in South Africa. September was successful! 

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[1] Stephen Page is a Director of Page Provan, Solicitors, Brisbane, Australia.  He was admitted as a solicitor in 1987 and has been a Queensland Law Society Accredited Family Law Specialist since 1996.  Stephen is a Fellow of the International Academy of Family Lawyers (including being a member of its Parentage/Surrogacy Project Committee and LGBT Committee), a Fellow of the Academy of Adoption and Assisted Reproduction Attorneys and an international representative on the ART Committee of the American Bar Association.

[2] Re K (1984) FLC92-461.

[3] https://www.judiciary.gov.uk/wp-content/uploads/2017/12/in-the-matter-of-m-20171220.pdf

[4] https://www.csyw.qld.gov.au/resources/campaign/end-violence/about/special-taskforce/dfv-report-vol-one.pdf viewed on 26 August, 2019.

[5] (2010) Australian Academic Press

[6] Annette Bromdal, Amy B Mullens, Tania M Phillips and Jeff Gow (2018): Experiences of transgender prisoners and their knowledge, attitude, and practices regarding sexual behaviours and HIV/STIs: A systematic review, International Journal of Transgenderism, DOI: 10.1080/15532739.2018.1538838

[7] http://saflii.org/za/cases/ZAWCHC/2017/90.html