The Legal Status of
Transsexual and
Transgender Persons in
Australia 2013
a contemporary report on diversity in human
sexual formation and gender expression in
Australian Law
Rachael Wallbank BA. LLB.
www.wallbanks.com
www.truecolours.org.au
1
Content
A. THE WHO AND THE WHAT - LANGUAGE,
TERMINOLOGY, CONCEPTS AND NUMBERS
B. SEX, GENDER AND THE LAW IN AUSTRALIA
C. LEGAL SEX
D. COMMON LAW SEX – CASE REVIEW
E. ANTI-DISCRIMINATION LAWS – INTENDED AND
INCIDENTAL
F. A WORLD MADED SAFE FOR DIVERSITY - Shashi
Tharoor
G. REFLECTIONS
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DIVERSITY IN HUMAN SEXUAL
FORMATION and GENDER
EXPRESSION
 CHROMOSOMAL SEX
 BODIED SEX (Genital Sex - Internal and External)
 NEUROLOGICAL SEX
 SEXUAL IDENTITY (SELF, EXPRESSED & OTHER)
 GENDER IDENTITY (SELF, EXPRESSED & OTHER)
 (Other = Perceived or Culturally Intelligible)
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GENERAL TERMS & DEFINITIONS (1 of 2)
 Sex (Biological) – multidimensional – is not the same as
Gender notwithstanding usage
 Gender - cultural (expression of) sex - many possibilities
such as masculine, feminine, transgender, pangender
(not a euphemism for “sex”)
 Intersex - a biological term - having sexually
differentiated features (incl. the brain) of both male and
female
 Brain Sex – innate or neurological sex
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GENERAL TERMS & DEFINITIONS (2 of 2)
 Transsexual/ism – the experience of critical
personal conflict between the sexually
differentiated brain/mind (or personal sexual
identity) and the balance of the sexually
differentiated body successfully treated by a
change of cultural gender identity plus medical
intervention, including hormonal medication and
genital reassignment surgery.
 Pan/Trans-Gender/ism – the experience of an
conflict between personal and cultural/normative
gender identities resolved by altering cultural
gender identity – no significant body alteration or
medical treatment required.
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Sex, Gender and the Law
 Common Law Sex – as determined by
Courts
 Legal Sex/Assigned Sex – as evidence by
the Birth Certificate – is not conclusive
evidence of biological sex
 Biological Sex – multidimensional – is not
the same as Gender notwithstanding
usage
 Legal Gender – as evidenced by the
Gender Recognition Certificate (UK)
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Sex, Gender and the Law
 Sex used randomly both independently and
interchangeably with Gender to mean “Sex” –
in legislation and judgements
 Sexual Identity – used randomly both
independently and interchangeably with Gender
Identity to mean a biologically derived
hardwired Brain /Neurological Sex or a mentally
disordered “Psychological Identity”
 Sex or Gender Change, Reassignment or
Affirmation
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Affirmative Language
 Affirmed Sex (Male or Female) = the sex that a person
affirms the person to be in contradiction to the person’s
then assigned or legal sex
 Affirmed Gender (Masculine, Feminine or Diverse)
 Sex Affirmation Treatment/Procedure = “one or more
hormonal and surgical procedures involving the alteration
of a person's secondary sexual characteristics and
reproductive organs carried out for the purpose of
assisting the person to be considered to be a member of
the person’s affirmed sex and/or to correct or eliminate
ambiguity relating to the sex of the person for the same
purpose”
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"Politics and the English Language”
 “Political language - is designed to make lies
sound truthful and murder respectable, and to
give an appearance of solidity to pure wind.”*
 “If gender is arbitrary and customary, it can be
altered by changing the language. The activists
saw that if sex was redefined as gender, it too
became arbitrary and changeable. …from the
realm of biological necessity to that of
custom.”**
•
George Orwell 1946
•
Keith Windschuttle, Language Wars, Quadrant May 2004 © 2005 at
http://www.sydneyline.com/Language%20Wars.htm
Numbers
 21,875,000 Australians all ages living with TS*
 No stats for people who express gender as
pan/trans-gendered on an everyday basis.
• RDW Calculation – based on Conway and Olyslager's more
conservative prevalence rate for transsexualism using data
applicable for affirmed females (1:1,000) – see Conway and
Olyslager “On the Calculation of the Prevalence of
Transsexualism” published and presented WPATH 20th
International Symposium, Chicago, Illinois, September 5-8,
2007.
• (Typical cited prevalence numbers for transsexualism as
published by Bakker and Others in 1993 and adopted by
WPATH are 1 in 11,900 for Affirmed Females ("AF")* and 1 in
30,400 for Affirmed Males ("AM")).
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Legal Sex
 The particulars of the sex of a person created by the
state at or near the birth event
 Determined by a casual inspection of the external
genitalia (only) – may not equate with a person’s
predominant biological sex
 Historic and Contemporary Evidence/Use but
primary requirement is accuracy/truth
 Evidenced by the Birth Certificate
 Legal Sex Assignment is a legal and not a biological
act and can be altered/amended by the State
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LEGAL SEX - Criteria - State B, D & M Register
(Australian Human Rights Commission “Sex Files” Report 2009.Table 1)
State/
Territory
Adults (aged
18 or over)
can apply?
Guardian of
children (under
18) can apply?
Relationship to jurisdiction?
Must be
unmarried?
Must have undergone surgery to alter
reproductive organs?
NSW
Yes
Yes
Birth of person must be registered
in NSW
Yes
Yes
NT
Yes
Yes
Birth of person must be registered
in NT
Yes
Yes
Qld
Yes
Yes
Birth of person must be registered
in Qld
Yes
Yes
SA
In SA, people can apply to have a gender recognition certificate. After a person has received a gender recognition certificate, the person
may present that certificate to the Registrar of Births who must then amend the sex noted on the birth certificate. See section 8.1(b) below
for more information about the SA gender recognition certificate.
Tas
Yes
Yes
Birth of person must be registered
in Tas
Yes
Yes
Vic
Yes
No
Birth of person must be registered
in Vic OR be a resident of Vic who
lives and has lived for 12 months
in Vic
Yes
Yes
WA
In WA, people can apply to have a gender recognition certificate. After a person has received a gender recognition certificate, the person
may present that certificate to the Registrar of Births who then must amend the sex noted on the birth certificate. See section 8.1(b) below
for more information about the WA gender recognition certificate.
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Criteria for a Gender Recognition Certificate – Western
Australia & South Australia (AHRC Sex Files 2009.Table 2)
State/
Territory
Adults
(aged 18 or
over) can
apply
Guardian of
children (under
18) can apply
Relationship to jurisdiction
Unmarried
Undergone
surgery to
‘eliminate
ambiguity’
Undergone a
medical or
surgical
procedure to
‘alter genitals
or other sexual
characteristics’
SAi
Yes
Yes
Birth of person must be
registered in SA OR the
surgery must have been
conducted in SA
Yes
Yes (if a child)
Yes
WAii
Yes
Yes
Birth of person must be
registered in WA OR the
surgery must have been
conducted in WA OR the
person must be a resident
of WA
Yes
Yes (if a child)
Yes
i
See Sexual Reassignment Act 1988 (SA), ss 3, 7. Corrections provision, see Births, Deaths & Marriages Registration Act 1996
(SA), s 42.
ii
See Gender Reassignment Act 2000 (WA), s 15. Corrections provision, see Births, Deaths & Marriages Registration Act 1998
(WA), s 51.
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Model A - New South Wales (1 of 3)
NSW Births, Deaths and Marriages Registration Act
1995 as at 19 March 2013
Part 5A 32B Application to alter register to record
change of sex
A person who is 18 years or older or a parent/guardian of a
minor can apply to the Registrar for alteration of the person's
sex in the registration of birth details if born in NSW or, if
born elsewhere and not registered under the Act, for the issue of
a recognised details certificate if the subject person:
(a) has undergone a sex affirmation procedure, and
(b) is not married,
Model A - New South Wales (2 of 3)
Births, Deaths and Marriages Registration Act 1995
as at 19 March 2013
Part 5A Section 32A Definitions
In this Part:
"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.
Model A - New South Wales (3 of 3)
 Part 5A Section 32C Declarations by doctors - An
application under section 32B must be accompanied by a
statutory declarations by 2 doctors, or by 2 medical
practitioners registered under the law of any other State,
verifying that the person the subject of the application has
undergone a sex affirmation procedure
 Part 5A 32I Effect of alteration of register and interstate
recognition certificates - A person the record of whose sex
is altered under this Part is, for the purposes of, but subject
to, any law of New South Wales, a person of the sex as so
altered.
Norrie v NSW Registrar of Births, Deaths
and Marriages [2013] NSWCA 145
 Norrie, born male bodied had undergone SAT including GRS
but now self identified as neither male or female
 Norrie applied under NSW Part 5A to have Norrie’s sex
registered as “Non Specific"
Findings:
1. Section 32 empowers the Registrar to register a change of sex of a
person from male or female to a category that is neither male nor
female: [257], [274
2. It was open to the Registrar to register Norrie's sex as "non
specific“
3. Ques: Can a person’s self-identified gender now become the
person’s Legal Sex? Probably not – refer Part 5A circumstances
Model B - WA Gender Recognition Act 2000 (1 of 2)
 Part 1 Section 3 – a recognition certificate identifies a
person who has undergone a reassignment procedure as
being of the sex to which the person has been reassigned =
sex and legal sex; not “gender”
 Part 2 Section 5 - A Gender Recognition Board to receive
and determine applications made under Part 3 Section 14
by a person who has undergone a reassignment
procedure where the Board is satisfied Section 15 (1)(b)
that the person believes that his or her true gender is the
reassigned gender, has the lifestyle and the gender
characteristics of a person of the reassigned gender plus
counselling
 Part 3 Section 15 – born in WA, procedure in WA, resident
of WA for not less than 12 months
Model B - WA (2 of 2)
 Part 1 Section 3
 reassignment procedure = 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 male or female, so that the person will
be identified as a person of the opposite sex and
includes, in relation to a child, such 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 (= the sexually
differentiated body);
AB & AH v Western Australia [2011] HCA 42
The affirmed male appellants had:
undergone hormone therapy to masculinise their bodies –
affected change to genitalia inhibiting female usage
undergone breast tissue removal surgery
been diagnosed as experiencing GID/transsexualism
not undergone any genital surgery
Findings:
1.The issue was whether the appellants satisfied s 15 (1) (b)(ii)
2.“Gender characteristics” referred to external physical
characteristics - reflects “commitment” and societal perspective
Adolescents Living with TS
As a result of:
 Re Alex (hormonal treatment for gender dysphoria) - (2004)
31 Fam LR 503
 Re Jamie 2013FamCAFC110
Unique to Australia, the lives of young people are put at risk
by the imposition of the legal precondition of Court approval in
respect of adolescent Phase 2 hormonal Sex Affirmation
Treatment which impose unnecessary costs, delay and
trauma on young people and their families as well as making
the young person’s essential medical treatment a potential
site for parental conflict
State Anti Discrimination Laws
 NSW Part 3A of the Anti-Discrimination Act 1977
 Section 4 - "recognised transgender person" - "... a person
the record of whose sex is altered under Part 5A of the
Births, Deaths and Marriages Registration Act 1995 or under
the corresponding provisions of a law of another Australian
jurisdiction."
 Section 38A – “A reference in this Part to a person being
transgender or a transgender person is …” a reference to
a person who
a. self identifies or seeks to live as a member of the opposite sex,
or
b. who is identified as a member of the opposite sex by others, or
c. who, being of indeterminate sex, self identifies as a member of
a particular sex by living as a member of that sex
But religious exemptions apply
Federal Anti Discrimination Laws
Sex Discrimination Amendment (Sexual Orientation,
Gender Identity and Intersex Status) Act 2013 (Amends
1984 Act)
Subsection 4(1) – “gender identity - 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.”
5B Discrimination is the imposition of less favourable treatment on
a person, or all persons, of a particular gender identity or a
characteristic of that gender identity
intersex status means the status of having physical, hormonal or
genetic features that are neither wholly female nor wholly male; or a
combination of female and male; or neither female nor male.
But religious exemptions apply
Disability Discrimination Act 1992
Section 4 Interpretation
disability in relation to a person means:
(b) total or partial loss of a part of the body; or
(e) the malfunction, malformation or disfigurement of a part of
the person’s body; or
and includes a disability that: (h) presently exists; or (i)
previously existed but no longer exists; or (j) may exist in the
future (including because of a genetic predisposition to that
disability); or (k) is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this
definition includes behaviour that is a symptom or
manifestation of the disability.
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Australian Common Law – Sexual Diversity
 R v Harris & McGuiness (1988) 17 NSWLR 158
A person who "... through medical intervention ... has assumed the external genital
features of the opposite sex, thereby bringing those genital features into conformity
with the person's psychological sex.” … is legally of that sex and "... I can see no
place in the law for a 'third sex'. Such a concept … could cause insuperable
difficulties... It would also relegate transsexuals to a legal 'no man's land'. This I
think, could only operate to their considerable detriment."
 Secretary, Department of Social Security v "SRA" [1993] FCA 573; 43 FCR 299
"Sex is not merely a matter of chromosomes, although chromosomes are a very
relevant consideration. Sex is also partly a psychological question (a question of self
perception) and partly a social question (how society perceives the individual).”
 Re Kevin: Validity of Marriage of Transsexual (2001) 28 Fam LR158; [2001]
FamCA 1074 Chisholm J
“…the fundamental task of the law…, in a legal and social context that divides all
human beings into male and female, is to assign individuals to one category or the
other, including individuals whose characteristics are not uniformly those of one or
other sex.”
Re Kevin – The Decision
1. For marriage under Australian law, the question
whether a person is a man or a woman is to be
determined as of the date of the marriage;
2. To determine a person's sex for the purpose of the
law of marriage, all relevant matters need to be
considered;
3. There may be circumstances in which a person who
at birth had gonads, chromosomes and genitals
characteristic of one sex, may nevertheless be of
the other sex at the date of his marriage. Anything
to the contrary in Corbett does not represent
Australian law
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Re Kevin - A Common Law Reference Point
Justice O’Brien - Kantaras (2003)
“…it is essential that Kevin not be given a mere ‘citation’ but
studied for what it represents in the law. It is one of the most
important cases on transsexualism to come on the scene of
foreign jurisprudence.”
The Marriage of Kantaras case number 98-5375CA 511998DR00537WS
(Florida/USA-2003) (overturned on appeal and likely again to be subject of
appeal) at page 673.
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RIGHTS AND ETHICS – A PLACE FOR
DIVERSITY
Shashi Tharoor
Author and UN Undersecretary-General for Communications and Public
Information
“If the 20th Century can be said to be the one in which the world
was made safe for democracy, let it be said that the 21st
century was the one in which the world was made safe for
diversity.”
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Reflections & Legislative Tips
 Human rights & law reform concerning Difference demands clarity,
clarity, clarity! We all benefit from the demystification of Difference
and an appreciation of diversity; including human diversity.
Honouring diversity means recognising difference.
 Sex and Gender are as different as Self Identity is as different to
Cultural Identity
 Avoid psychologically, politically affected and genitocentric language
– especially in legislation: “gender”, “transgender”, GID,GD. “MtF”
etc ..or own it.
 The ultimate test is what happens in the school yard
 Legislation
- use of clear mini dictionary/interpretation sections to make clear
what is meant (judges are as confused as everyone else)
- Avoid criteria that requires a psychological assessment and have
multiple pathways
- Be conscious of both the legislative objects and its cultural
intelligence
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The Legal Status of
Transsexual and
Transgender Persons in
Australia 2013
a contemporary report on diversity in human
sexual formation and gender expression in
Australian Law
Rachael Wallbank BA. LLB.
www.wallbanks.com
www.truecolours.org.au
30