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Australia: State Legislation to Remove Barriers to Changing Sex on Birth Certificate

(Aug. 22, 2016) On August 18, 2016, the Attorney-General of the Australian State of Victoria introduced the Births, Deaths and Marriages Registration Amendment Bill 2016 in the state parliament.  The bill “removes the need for applicants to have undergone sex affirmation surgery before being able to apply for a new birth certificate.”  (Press Release, Martin Pakula, Birth Certificates to Reflect True Identity (Aug. 18, 2016), Premier of Victoria website.)  In addition, couples will no longer be required to divorce if one partner changes the sex on their birth registration.  (Id.)  There is currently a need to divorce to avoid the creation of a same-sex marriage, which is not legal in Australia under federal marriage legislation.  (Nino Bucci, Gender Diverse Win Right to New Birth Certificates, AGE (Aug. 18, 2016); Mary Anne Nielsen, Same-Sex Marriage: Issues for the 44th Parliament, AUSTRALIAN PARLIAMENTARY LIBRARY (Sept. 8, 2015).)

If the bill is passed by the parliament, it will allow adult applicants to “nominate the sex descriptor in their birth registration as male, female or specify a gender diverse or non-binary descriptor.”  (Birth Certificates to Reflect True Identity, supra.)  They will not need a supporting statement from a doctor; instead, according to Pakula, “[a]nyone over the age of 18 will need to make a statutory declaration and obtain a supporting statement from an adult who has known them for at least 12 months to make an application.”  (Karen Barlow, Victoria Moves to Allow Gender Change on Birth Certificates, HUFFINGTON POST AUSTRALIA (Aug. 18, 2016).)

There will also be a new process for parents to apply to alter the sex recorded on their child’s birth registration.  This process will require the consent of the child, along with a “supporting statement from a doctor or registered psychologist confirming the child has capacity to consent, and that the change is in the best interests of the child.”  (Birth Certificates to Reflect True Identity, supra.)  Children over 16 years of age will be assumed to have the capacity to consent to such a change.  (Id.)

Developments in Other Australian Jurisdictions

A similar law, enabling alterations of the record of an adult’s or child’s sex without a surgery requirement, was enacted in the Australian Capital Territory (ACT) in 2014.  (Births, Deaths and Marriage Registration Amendment Act 2014 (ACT), ACT Legislation Register; Press Release, ACT Government, Recognition for Sex and Gender Diverse Community Members (Mar. 20, 2014).)

The ACT parliament passed further legislation in February 2016 that allows parents to choose “mother” and “father” for either parent, as well as “parent 1″ and ”parent 2,” or “mother” and “mother,” or “father” and “father” on their child’s birth certificate.  (Kirsten Lawson, New Gender Non-Specific Birth Certificates for ACT, CANBERRA TIMES (Feb. 16, 2016); Justice Legislation Amendment Act 2016 (ACT), ACT Legislation Register.)

The legislation also created a new identity document (a “recognised details certificate”) for gender diverse people not born in ACT who cannot change their gender on their birth certificates.  Such people can obtain the document, which recognizes their name and the sex they live by, provided they have a statutory declaration from a doctor or psychologist confirming their intersex status or that they have “received appropriate clinical treatment for alteration of” their sex.  (Justice Legislation Amendment Act 2016 (ACT) s 12, inserting new s 29B into the Births, Deaths and Marriages Registration Act 1997 (ACT).)  Parents are also able to apply for the document for their children.  (Id. s 12, inserting new s 29A(2); Lawson, supra.)

The government of the State of South Australia also introduced a bill to remove the reassignment surgery requirement for altering birth certificates on August 4, 2016.  (Births, Deaths and Marriages (Gender Identity) Amendment Bill 2016 (SA), South Australian Legislation website.)