Transgender rights in Australia

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Transgender rights in Australia enjoy legal recognition and protection under federal and state/territory laws, but the requirements for gender recognition vary depending on the jurisdiction.[1] For example, birth certificates and driver licences are within the jurisdiction of the states and territories, while Medicare and passports are matters for the Commonwealth.[2]

Changing legal gender assignment for federal purposes such as Medicare and passports requires only a letter from a treating medical practitioner.[2] By contrast, most states and territories impose additional requirements for gender recognition that have been criticised by the Australian Human Rights Commission and LGBT advocates.[2] These include the requirements that the person must undergo sexual reassignment surgery and, if married, must divorce their spouse to prevent a same-sex marriage arising.[1] Advocates argue that marital status and surgery requirements are irrelevant to the recognition of a person's sex or gender identity, and instead should rely on their self-identification.[2][3]

Gender reassignment surgery is available in Australia with the costs of some, but not all, treatments for trans people covered by the national Medicare public health scheme. Transgender children currently require approval from the Family Court of Australia to access hormone treatment.

History[edit]

In 1987, Estelle Asmodelle became Australia's first legally recognized transsexual with the Births, Deaths and Marriages Department of New South Wales,[4] and her transition helped gain recognition for transgender people in Australia.[5] This was the first time in Australian legal history that an adult transsexual was permitted to change their birth certificate to a different sex. Soon afterwards the passport laws also changed to allow the sex on passports to be changed

Identification documents[edit]

Laws concerning gender identity-expression by country or territory
  Legal identity change
  No legal identity change
  Unknown/Ambiguous

Birth certificates[edit]

Birth certificates are issued by states and territories; in many states, sterilisation is (or has been) required for trans people to obtain recognition of their preferred gender in cardinal identification documents.

Australian Capital Territory[edit]

In 2014, the Australian Capital Territory passed legislation that removed the surgery requirement for changing the sex marker on birth certificates.[6]

New South Wales[edit]

The New South Wales Registry of Births Deaths & Marriages requires that trans people must have "undergone a sex affirmation procedure."[7]

Non-binary gender recognition[edit]

Norrie May-Welby is a Scottish-Australian who became the first transgender person in Australia to publicly pursue a legal status of neither a man nor a woman. That status was subject to appeals by the State of New South Wales.[8]

In April 2014, the High Court of Australia unanimously ruled in a case titled NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11[9][10] that, having undergone sex affirmation surgery, androgynous person Norrie was to be registered as neither a man nor a woman with the NSW Registry of Births, Deaths and Marriages.[11] The decision follows previous regulations and legislation that recognises a third gender classification, and establishes that Australia's legal system recognises and permits the gender registration of 'non-specific', as the judges found in the Norrie case.[11]

South Australia[edit]

In December 2016, South Australia became the first state to remove the surgery requirement for a change of sex on birth certificates.[12]

Western Australia[edit]

Western Australia formerly required sterilization prior to approving a change in sex classification, this requirement was overturned when the High Court ruled, in the 2012 case of AB v Western Australia, that two transgender men who had undergone mastectomies and hormone treatment did not need to undergo sterilisation to obtain a WA gender recognition certificate.[13]

Passports[edit]

The Australian Government Guidelines on the Recognition of Sex and Gender, which took effect from 1 July 2013, enable any adult to choose to identify as male, female or X. Documentary evidence must be provided from a doctor or psychologist, but no medical intervention is required.[14]

Alex MacFarlane was reported as receiving a passport with an 'X' sex descriptor in early 2003. MacFarlane achieved this after using an indeterminate birth certificate that was issued by the State of Victoria.[15][16][17] Australian government policy between 2003 and 2011 was to issue passports with an 'X' marker only to people who could "present a birth certificate that notes their sex as indeterminate"[1][18]

In 2011, the Australian Passport Office introduced new guidelines for issuing of passports with a new gender, and broadened the availability of the X descriptor to all individuals with documented "indeterminate" sex,[19][20] the revised policy stated that "sex reassignment surgery is not a prerequisite to issue a passport in a new gender. Birth or citizenship certificates do not need to be amended."[21]

Driving licences and registers[edit]

Queensland[edit]

Queensland is the only state that records a person's gender marker on their driver licence.[1] Changing it requires, in addition to the necessary paperwork[22] and evidence of identity and/or name change, an official letter from a registered medical practitioner, psychiatrist or psychologist with words to the following effect:[23]

This is to certify that (new name), (new sex), formerly known as (previous name), (previous sex), has been undergoing treatment on a gender re-assignment program and should now be regarded as permanently (new sex).

Gender dysphoria treatment[edit]

Access by children[edit]

Medical treatment for minors with gender dysphoria experiencing puberty is generally divided into two stages:[24]

Transgender Australians are generally not eligible for sexual reassignment surgery until they turn 18 years old.[26]

Medical treatment is available to a child who has been diagnosed with gender dysphoria.[25] A diagnosis requires that the child feels and verbalises a strong desire to have a different gender for at least six months.[24]

A number of requirements must be satisfied in order for a transgender child to receive treatment. Stage 1 treatment in Australia is provided in accordance with the Endocrine Society's Clinical Practice Guideline "Endocrine Treatment of Transsexual Persons"[27] and involves:[25][26]

  • a standardised assessment of psychological development by two independent child and adolescent psychiatrists
  • a formal assessment of the child’s gender identification and capacity to understand the proposed treatment
  • an assessment by a paediatric endocrinologist to establish the child’s pubertal stage and exclude disorders of sex development
  • discussions between the paediatric endocrinologist, the child and their parents about the effects and risks of blocking puberty
  • (if there is any disagreement between the child, a parent or the medical practitioner about the treatment) legal authorisation from the Family Court of Australia

Access to Stage 2 treatment requires the following:[25]

  • consensus among a team of medical practitioners (a paediatrician, a fertility expert and two mental health professionals of whom at least one must be a psychiatrist) that the treatment is in the best interests of the child
  • legal authorisation from the Family Court of Australia

Court involvement[edit]

In the 2004 case Re Alex : Hormonal Treatment for Gender Identity Dysphoria[28] the Family Court of Australia held that both Stage 1 and Stage 2 treatments for gender dysphoria were non-therapeutic "special medical procedures" for the purposes of the Family Law Act 1975, which meant that even if a child's parents consented, the Family Court's approval was necessary to ensure the child's welfare was protected. This was based on the principles of Marion's Case, in which the High Court of Australia ruled that parental consent was insufficient for "special medical procedures", and instead court approval was necessary to ensure they were in the best interests of the child.[29] Since that time, the Family Court has heard an increasing number of applications for child gender dysphoria treatment.[24]

This approach was relaxed in several 2013 judgments,[30][31] which were approved by the Full Court of the Family Court in Re Jamie;[32] in these cases, the judges accepted that the medical treatments were therapeutic in nature and that parents could consent to Stage 1 treatment for their child without court oversight.[24] Court approval would only be necessary for Stage 1 treatment if there was a disagreement between the child, their parents or the treating doctors about the treatment.[33]

When required to rule on a transgender child's access to treatment, the Family Court must assess the child's Gillick competence; in other words, whether the child is in a position to consent to the treatment by fully understanding its nature, effects and risks.[34] If the Court finds the child is Gillick-competent, the child's wishes must be respected. If not, the Court must then decide whether the proposed treatment is in the child's best interests.[35]

Australia is the only country in the world which requires court involvement in the process.[36] Several families with transgender children have called for the Family Court's role to be abolished, given that the legal process simply "rubber stamps" the expert opinions of medical practitioners and imposes significant financial and emotional costs on applicants,[34] the legal process cost about $30,000 in 2016.[34] Opponents of the current system also point to reports that some transgender teenagers were risking their lives sourcing cross-sex hormones on the black market due to the cost and delays caused by the court process.[36]

In 2016, Family Court Chief Justice Diana Bryant acknowledged the difficulties of the existing process and promised it would be simplified.[37] Bryant had earlier suggested in 2014 that the High Court of Australia should reconsider the case law requiring court supervision for the medical treatment of transgender children,[38] as recently as late 2016 a spokesperson for the Attorney-General's office said the government was “actively considering options” for reform.[39]

Access by adults[edit]

Gender reassignment surgery is available in Australia with the costs of some, but not all treatments for trans people covered by the national Medicare public health scheme.[40] Trans advocates have campaigned for full Medicare funding for various treatments that may be currently be unaffordable for transgender people, such as breast surgery, facial surgery and hormone treatments, among others.[40] Few Australian medical staff have expertise in trans issues, particularly in rural areas,[41] leading to many transgender Australians to travel overseas for surgery to countries such as Thailand.[40] Members of the trans community have also called for greater access to mental health services given the increased demand, with delays of 12 to 18 months recorded in Victoria for access to necessary psychological and psychiatric services before hormone therapy can be accessed.[42]

Discrimination protections[edit]

Federal law protections[edit]

Prior to 1 August 2013 Australia did not comprehensively outlaw discrimination based on gender identity at the federal level; in late 2010, the Gillard Labor Government announced a review of federal anti-discrimination laws, with the aim of introducing a single equality law that would also cover sexual orientation and gender identity.[43] This approach was abandoned and instead on 25 June 2013, the Federal Parliament added marital or relationship status, sexual orientation, gender identity and intersex status as protected attributes to the existing Sex Discrimination Act by passing the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013.

From 1 August 2013, discrimination against transgender and gender diverse people, and all LGBTI people, became illegal for the first time under national law. Aged care providers who are owned by religious groups will no longer be able to exclude people from aged care services based on their LGBTI or same-sex relationship status. However, religious owned private schools and religious owned hospitals are exempt from gender identity and sexual orientation provisions[44] in the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013.[45]

State and territory law protections[edit]

Aside from Commonwealth (ie: federal) anti-discrimination laws, each of the states and territories have their own laws which protect LGBTI people from discrimination.

School anti-bullying programs[edit]

The Safe Schools Coalition Australia has sought to combat anti-LGBTI abuse or bullying, which research suggested was prevalent across Australian schools.[46] Initially established in Victorian schools in 2010,[47] the program was launched nationwide in 2014 under the Abbott Government,[48] the program received support from a majority of state governments, LGBTI support groups and other religious and non-governmental organisations such as beyondblue,[49] headspace and the Australian Secondary Principals Association.[50]

However, the program faced criticism in 2015 and 2016 from social conservatives including the Australian Christian Lobby, LNP politicians such as Cory Bernardi, George Christensen, Eric Abetz, Malcolm Turnbull, Tony Abbott, Kevin Andrews, and former Labor Senator Joe Bullock for indoctrinating children with "Marxist cultural relativism"[46] and age-inappropriate sexuality and gender concepts in schools,[51] while others criticised the Marxist political views of Roz Ward, a key figure in the program.[46][52][53] Petitions were also delivered against the program by members of Australia's Chinese and Indian communities.[54]

The concerns led to a review under the Turnbull Government, which implemented a number of changes such as restricting the program to high schools, removing role playing activities and requiring parental consent before students take part,[55] the federal changes were rejected by the governments of Victoria and the Australian Capital Territory, who persisted with the original program and announced they would fund it independently of the federal government.[56] Funding for the federal program has since been allowed to lapse.[57]

Marriage[edit]

In the 2001 case of Re Kevin – validity of marriage of transsexual, the Family Court of Australia held that a post-operative transsexual person could be recognised as their new gender for the purposes of marriage.

See also[edit]

References[edit]

  1. ^ a b c d "Concluding paper of the sex and gender diversity project". Sex Files: the legal recognition of sex in documents and government records. Australian Human Rights Commission. March 2009. Retrieved 8 September 2016. 
  2. ^ a b c d McAvan, Emily (12 August 2016). "Why Australia's gender recognition laws need to change". Special Broadcasting Service. Retrieved 12 December 2016. 
  3. ^ Gleeson, Hayley (7 April 2016). "Gender identity: Legal recognition should be transferred to individuals, Human Rights Commission says". Australian Broadcasting Corporation. Retrieved 8 September 2016. 
  4. ^ The Daily Mirror (Australia) Newspaper 13 October 1987
  5. ^ Highlands Post Newspaper 10 January 1986
  6. ^ "ACT to make it easier for transgender people to alter birth certificate". Australian Broadcasting Corporation. ABC News. Retrieved 4 July 2014. 
  7. ^ "Change of sex". New South Wales Registry of Births Deaths & Marriages. 
  8. ^ "Norrie May-Welby's battle to regain status as the world's first legally genderless person", Daily Life Australia. 8 November 2013
  9. ^ NSW Registrar of Births, Deaths and Marriages v Norrie: Case summary [2014] HCASum 10 High Court (Australia).
  10. ^ NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11, (2014) 250 CLR 490 (2 April 2014), High Court (Australia).
  11. ^ a b "Neither man nor woman: Norrie wins gender appeal". The Sydney Morning Herald. Retrieved 26 July 2015. 
  12. ^ "Landmark Transgender Rights Bill Passes in South Australia, Nixed in Victoria". BuzzFeed. 6 December 2016. 
  13. ^ Human Rights Commission, AB v Western Australia
  14. ^ "Australian Government Guidelines on the Recognition of Sex and Gender". Retrieved 26 July 2015. 
  15. ^ "X Marks the Spot for Intersex Alex". West Australian. Perth. 11 January 2003. 
  16. ^ Holme, Ingrid (2008). "Hearing People's Own Stories". Science as Culture. 17 (3): 341. doi:10.1080/09505430802280784. Retrieved 26 July 2015. 
  17. ^ Dow, Steve (27 June 2010). "Neither man nor woman". The Sydney Morning Herald. FairfaxMedia. Retrieved 21 December 2016. 
  18. ^ Carpenter, Morgan (12 January 2013). "Ten years of 'X' passports, and no protection from discrimination - OII Australia - Intersex Australia". OII Australia - Intersex Australia. Retrieved 21 December 2016. 
  19. ^ "Getting a passport made easier for sex and gender diverse people". The Hon Kevin Rudd MP. 14 September 2011. Retrieved 23 December 2011. 
  20. ^ On Australian passports and "X" for sex, Organisation Intersex International (OII) Australia, 9 October 2011
  21. ^ "Sex and Gender Diverse Passport Applicants". Department of Foreign Affairs and Trade. Australian Government. Retrieved 23 December 2011. 
  22. ^ "Form F4214 - Change of Customer Details (Individual)". Department of Transport and Main Roads. State of Queensland. Retrieved 21 December 2016. 
  23. ^ "Update your address or personal details on your licence". Department of Transport and Main Roads. State of Queensland. Retrieved 21 December 2016. 
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  26. ^ a b Hewitt, Jacqueline K.; Paul, Campbell; Kasiannan, Porpavai; Grover, Sonia R.; Newman, Louise K.; Warne, Garry L. (1 January 2012). "Hormone treatment of gender identity disorder in a cohort of children and adolescents". Medical Journal of Australia. 196 (9). ISSN 0025-729X. 
  27. ^ Hembree, Wylie C; Peggy Cohen-Kettenis; Henriette A. Delemarre-van de Waal; Louis J. Gooren; Walter J. Meyer, III; Norman P. Spack; Vin Tangpricha; Victor M. Montori (2009). "Endocrine Treatment of Transsexual Persons:An Endocrine Society Clinical Practice Guideline". The Journal of Clinical Endocrinology & Metabolism. 94 (9): 3132. doi:10.1210/jc.2009-0345. 
  28. ^ Re Alex : Hormonal Treatment for Gender Identity Dysphoria [2004] FamCA 297, (2004) F.L.C. 93-175 (13 April 2004), Family Court (Australia)
  29. ^ "The legal history of gender dysphoria in Australia". SciMex. Science Media Exchange. 4 May 2016. Retrieved 10 September 2016. 
  30. ^ Re: Lucy (Gender Dysphoria) [2013] FamCA 518 (12 July 2013), Family Court (Australia)
  31. ^ Re Sam and Terry [2013] FamCA 563 (31 July 2013), Family Court (Australia)
  32. ^ Re: Jamie [2013] FamCAFC 110 (31 July 2013), Family Court (Full Court) (Australia)
  33. ^ Strickland, The Hon Justice. "To Treat Or Not To Treat: Legal Responses to Transgender Young People Revisited" (PDF). Association of Family and Conciliation Courts Australian Chapter Conference Sydney, Australia, 14–15 August 2015. Family Court of Australia. p. 9. Retrieved 7 September 2016. 
  34. ^ a b c "Families with transgender children gather in Canberra to lobby for hormone treatment law changes". Australian Broadcasting Corporation. 22 February 2016. Retrieved 7 September 2016. 
  35. ^ Bell, Felicity. "Children with Gender Dysphoria and the Jurisdiction of the Family Court". University of New South Wales Law Journal. 38 (2). 
  36. ^ a b Cohen, Janine (15 August 2016). "Transgender teenagers 'risking lives' buying hormones on black market". Australian Broadcasting Corporation. Retrieved 7 September 2016. 
  37. ^ Taylor, Josie (5 July 2016). "Chief Justice vows change to 'traumatic' court process for transgender children". Australian Broadcasting Corpoation. Retrieved 8 September 2016. 
  38. ^ Bannerman, Mark (18 November 2014). "Family Court Chief Justice calls for rethink on how High Court handles cases involving transgender children". Retrieved 8 September 2016. 
  39. ^ "Judge slams court process for Australian trans youth as 'inhumane'". Q News. 28 January 2017. 
  40. ^ a b c "Medicare Coverage and Gender Reassignment Surgery". OutInPerth. 25 June 2012. Retrieved 23 October 2016. 
  41. ^ Winsor, Ben (13 July 2016). "Trans healthcare is a major headache for rural Australians". Special Broadcasting Service. Retrieved 12 December 2016. 
  42. ^ Hancock, James (21 November 2016). "Call for better Transgender community health services". ABC News. Australian Broadcasting Corporation. Retrieved 22 November 2016. 
  43. ^ Red Book plan a step towards gay marriage, The Australian, 15 December 2010
  44. ^ Australian Parliament, Explanatory Memorandum to the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, 2013
  45. ^ Australia outlaws LGBT discrimination under national laws for first time, 25 June 2013
  46. ^ a b c Alcorn, Gay (13 December 2016). "The reality of Safe Schools". The Guardian. Retrieved 17 December 2016. The initiative began after La Trobe University research in 2010 found that 61% of same sex-attracted young people (aged 14 to 21) had experienced verbal abuse and 18% physical abuse; 80% of the abuse happened at school. 
  47. ^ Ryall, Jenni (27 February 2016). "Safe Schools: Everything you need to know about the controversial LGBT program". Mashable. Retrieved 3 December 2016. 
  48. ^ Di Stefano, Mark (1 March 2016). "A Handy Reminder That Tony Abbott's Government Launched The Safe Schools Program". BuzzFeed. Retrieved 3 December 2016. 
  49. ^ David Alexander (30 July 2016). "Queensland Government stands by Safe Schools Coalition Australia". Star Observer. Retrieved 12 September 2016. 
  50. ^ Simon Leo Brown (26 February 2016). "Safe Schools: Chest binding photo removed from Christian website after complaints by young transgender man shown". ABC News. Australian Broadcasting Corporation. Retrieved 19 September 2016. 
  51. ^ "Christian lobby groups claim ‘radical sexual experimentation’ is being promoted in schools". news.com.au. News Limited. 25 July 2015. Retrieved 12 September 2016. 
  52. ^ Cavanagh, Rebekah (2 June 2016). "Roz Ward suspended from controversial Safe Schools program". Herald Sun. Retrieved 21 September 2016. 
  53. ^ Brown, Greg (31 May 2016). "Jeff Kennett: Safe Schools funding lost if Roz Ward stays". The Australian. Retrieved 7 September 2016. 
  54. ^ Akerman, Pia (25 August 2016). "Indians join Chinese concerned about Safe Schools rollout". The Australian. Retrieved 31 August 2016. 
  55. ^ "Safe Schools program downsized after campaign by right-wing MPs and Christian lobby groups". SBS News. 18 March 2016. Retrieved 18 March 2016. 
  56. ^ Alcorn, Gay (13 December 2016). "What is Safe Schools, what is changing and what are states doing?". The Guardian. Retrieved 17 December 2016. 
  57. ^ Urban, Rebecca (25 October 2016). "Safe Schools Coalition looks to new leader as funds run dry". The Australian. Retrieved 19 November 2016. 

Bibliography[edit]