Victorian gender recognition legislation an important step for equality

Lisbeth Latham

The Victorian government announced new legislation on August 18 aimed at simplifying the process for trans and gender diverse (TGD) people's to change the sex marker on their birth certificates and records. This has rightfully been welcomed as an important step forward for TGD people rights.
The new legislation, which follows similar legislation in the ACT and 2013 changes to policies regarding sex markers on Commonwealth documents, is a start towards eliminating medical gatekeeping on the lives of TGD people.

The Victorian government announced new legislation on August 18 aimed at simplifying the process for trans and gender diverse (TGD) people's to change the sex marker on their birth certificates and records. This has rightfully been welcomed as an important step forward for TGD people rights.

The new legislation, which follows similar legislation in the ACT and 2013 changes to policies regarding sex markers on Commonwealth documents, is a start towards eliminating medical gatekeeping on the lives of TGD people.

However, significant steps remain in overcoming all of the formal legal and medical barriers that confront TGD people.

The new changes will remove two key barriers that have been a feature of gender recognition processes. With the exception of those living in the ACT, individuals seeking to change their sex marker have been required to undertake at least some form of gender reassignment surgery (GRS), and all states and territories require that individuals not be married.

The requirement for individuals to undergo GRS is a significant barrier to many TGD people having their affirmed gender recognised on their birth certificates, both because surgery is very expensive and because many TGD people do not desire to undergo surgery as part of their affirmation of gender.

The need to be single — which is aimed at ensuring that there are no marriages of people of the same sex — has meant that TGD individuals who are married have been forced to divorce to change their gender marker.

The Victorian government is arguing that its proposed change to the marriage requirement does not bring the legislation into conflict with the federal Marriage Act, which stipulates that marriages are between a man and a woman, because this requirement applies only at the time the marriage takes place and not subsequent to the marriage.

The proposed Victorian legislation, like the 2014 ACT legislation, allows TGD people to change their sex marker. The ACT legislation also provided for the introduction of a third sex marker on birth certificates of “X” for “intersex, unspecified, or indeterminate”.

In 2013, the federal government changed its policies for people wishing to amend their sex marker on their passports and with other commonwealth agencies such as Medicare and the Australian Tax Office. The changes removed the need for an individual to have undergone GRS and introduced a sex not specified “X” category.

With both the ACT and federal processes, applications need to be accompanied by a statement from a clinician that the patient is “receiving appropriate treatment or as being intersex”, which acts to pathologise TGD and intersex experiences. It also means that medical practitioners remain as gatekeepers on the lives of TGD people. The requirement for a TGD person's decision to be supported by a medical practitioner is absent from proposed Victorian legislation.

The only role for medical practitioners in the Victorian legislation is to certify that a minor wishing to change their marker is able to make an informed decision and that it is, in the medical practitioner's view, in the minor's interests to make the change. For those over the age of 16, it is assumed that they can make a decision for themselves.

An additional feature of the Victorian legislation is that it will enable individuals to have their birth certificates state that they are non-binary or list an alternative descriptor, with the only limitation being that the descriptor cannot be deemed to be offensive. This change is important as it allows a recognition of sexes and genders outside of the male-female/man-woman binary and reflects an individuals' actual identity.

The proposed Victorian legislation is important to the lives of TGD people, particularly trans women. Although trans people are protected by the Victorian Equal Opportunities Act from transphobic discrimination, under the Act and similar legislation across Australia, you cannot require a person to treat you as your affirmed gender unless your birth certificate states that it is your gender.

There are several circumstances under these acts where it is lawful to exclude individuals who are not of a specific gender, such as access to toilets, and the ability to play in sporting codes based on your affirmed gender or take up a position that is designated based on a specific gender. While this situation does not mean that organisations and companies have to discriminate in these circumstances, it does mean that they can lawfully do so.

While these changes represent significant advances in allowing TGD individuals the ability to determine their own lives, there are significant steps that need to be taken around the formal rights of transgender people.

Beyond pushing for all states and territories to adopt legislation similar to the proposed Victorian legislation, there is a continued need to decrease the gatekeeper role of doctors in determining if and when a TGD person can access medical technology to assist their gender affirmation.

Provision of hormones and other medical technology in Australia is guided by the World Professional Association for Transgender Health Standards of Care, which operates within a framework that pathologises TGD lives and ties access to medically-assisting affirmation technologies, such as hormones and surgery, to TGD people meeting doctors' expectations of what it is to be a particular gender.

TGD advocate organisations argue for an alternative model based on informed consent where individuals are able to access the medical technology they feel is appropriate to them, based on being informed of the possible impacts of that technology and consenting to use the technology based on them.

This model is at the centre of Argentina's 2012 Gender Identity Law which states “all persons older than eighteen (18) years ... will be able to access total and partial surgical interventions and/or comprehensive hormonal treatments to adjust their bodies, including their genitalia, to their self-perceived gender identity, without requiring any judicial or administrative authorisation”. This law also makes access to these technologies part of a Compulsory Medical Plan that covers all workers in formal employment.

An additional change that also needs to be made is ending the requirement for families of TGD children who wish to access Stage Two Hormones (the hormones associated with their affirmed gender) having to go to the Family Court to demonstrate that the child is able to give informed consent, a process which is both potentially traumatic and very expensive. Australia is the only jurisdiction in the world that has such a legal requirement.

There is still a long way to go to eliminate the legal and medical barriers that confront TGD people in Australia, and even more to addressing the high levels of social stigma and discrimination faced by TGD people.

However, the proposed changes in Victoria reflect the significant and rapid advances that are being made in Australia to make it easier and safer for TGD people to live their authentic lives.
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This article was originally published in Green Left Weekly #1108