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Gender identity: Legal recognition should be transferred to individuals, Human Rights Commission says

Individuals should be handed the power to decide their gender identity for themselves, without prior approval from doctors and psychologists, the Australian Human Rights Commission says.

Because the requirements for changing the sex on official documents are so prohibitive, many gender diverse people face challenges in accessing services and facilities that most Australians take for granted because their identity documents do not reflect their true gender.

State and territory laws currently prevent people from changing their gender on their birth certificate unless they have had gender reassignment surgery and are unmarried.

Australian Human Rights Commission president Professor Gillian Triggs has renewed calls to reform the process for changing gender on official documents, saying they needed to be simplified.

"The human rights of transgender and gender diverse people to equality and non-discrimination cannot be fully realised without the removal of the legislative barriers to the legal recognition of their gender identity," Professor Triggs told ABC News.

Commission pushes for end to 'barriers to recognition'

The calls come as Scottish National Party leader Nicola Sturgeon promised to radically overhaul Scotland's gender laws if her government is re-elected next month, giving trans and gender diverse people legal recognition they currently do not have.

PHOTO: Scottish National Party leader Nicola Sturgeon has promised to reform Scotland's gender recognition laws(Facebook: Nicola Sturgeon)

Ms Sturgeon's commitment to "bring [current legislation] in line with international best practice" would enable people who do not identify as either male or female to change their birth certificate and passport to reflect their gender status without first having to undergo invasive surgery or medical review.

The Australian Human Rights Commission welcomed initiatives that allow trans and gender diverse people to update identity documents to reflect their preferred name and gender, in accordance with a 2011 recommendation from the United Nations High Commissioner for Human Rights.

"All people have the right to equality and non-discrimination, privacy and physical integrity, and recognition as a person before the law," Professor Triggs said.

"Legislative schemes that require people to have surgery and to be unmarried in order to change the legal record of their gender undermine these rights.

"Initiatives to remove these barriers to recognition, such as that proposed in Scotland, are vital to ensure the protection of transgender and gender diverse people's human rights."

Current laws 'pathologise trans, gender diverse people'

Australian citizens can specify their gender on their passport as either male, female or indeterminate, without having to first undergo gender affirmation surgery.

However, a statement from a medical practitioner is required confirming the individual has had "appropriate clinical treatment for gender transition".

Gender, sexuality terms explained

 

Australian culture is becoming increasingly queer friendly, but sometimes progress doesn't feel fast enough.

However, most states and territories require that a person undergo a medical or surgical procedure (which in Western Australia can mean hormone therapy) and also be unmarried before they can change their gender marker on their birth certificate.

The exception is the ACT, which in March 2014 passed an Amendment Act legislating that surgery was not a prerequisite to changing sex on a birth certificate, though medical evidence from a doctor or psychologist is still required as part of the application process.

In April 2014, Sydney resident Norrie won the rightto be legally recognised as being of non-specific sex.

The case was hailed a great victory for the transgender community but the High Court's ruling only allowed people who had undergone gender reassignment surgery, like Norrie, to change their sex or gender on official documents.

Co-chair of the Victorian LGBTI Taskforce and chair of Transgender Victoria, Brenda Appleton, said the ACT amendment had been a step in the right direction, but set a standard on which Victoria could improve.

"It's very pathologising to have to go to a medical professional to get support for you to change your birth certificate," Ms Appleton told ABC News.

PHOTO: The High Court recognition of Norrie as being of non-specific sex was hailed as a victory by the transgender community.(AAP: Daniel Munoz)

Victoria could be first to overhaul gender laws

In conjunction with the Minister for Equality, Martin Foley, and Victoria's gender and sexuality commissioner, Rowena Allen, Ms Appleton has been working with the community to ensure its expectations are addressed in new gender recognition legislation, which she is hopeful will be introduced in 2016.

Ms Appleton said the LGBTI taskforce was proposing six changes to existing gender laws, including:

  • removing the requirement for invasive surgery
  • removing the requirement that the individual seeking to change their official gender be unmarried
  • including a third 'other, please specify with free text' gender option on birth certificates
  • removing the requirement that adults have medical support from a clinician in order to change their gender on official documents

If introduced, Ms Appleton said the reforms would dramatically change trans and gender diverse Victorians' lives.

PHOTO: Co-chair of the Victorian LGBTI Taskforce and Chair of Transgender Victoria, Brenda Appleton. (Supplied)

"For many people who want to change the sex marker on their birth certificate... at the moment they can't do that," she said.

"So often they feel incomplete as a person because their documentation isn't consistent with they way they might be living and presenting.

"The requirement at the moment for surgery is such that a trans man has... to have a hysterectomy to be able to change their birth certificate and therefore very few, if any, go through that process. It's very invasive.

"For a trans woman... the out-of-pocket cost for [gender reassignment] surgery is $15-20,000 in Australia at the moment and many people can't afford that, or for religious or other reasons don't want to undertake that surgery."

Victorian Attorney-General Martin Pakula was unable to confirm when new legislation would be introduced, but said, "The Andrews Labor Government made an election commitment to remove barriers to new birth certificates for trans, gender diverse and intersex Victorians".

He said the Government was working "to deliver on it".

Meanwhile, in South Australia...

The South Australian Government is also reviewing its sex and gender recognition laws.

State legislation currently requires individuals to prove to a magistrate they have had sexual reassignment surgery before they can change their gender on their birth certificate.

But a report submitted to the South Australian Government in February by the SA Law Reform Institute at the University of Adelaide recommended a system to allow adults to change their registered sex via a simple application to the Office of Births, Deaths and Marriages.

The idea that a medical practitioner can or should 'verify' an individual's own sense of their gender identity is not only incorrect but also damaging to a person's sense of self.

Anna Brown, Director of Advocacy and Strategic Litigation, Human Rights Law Centre

The report's lead author, Sarah Moulds, said: "We had so many people [in our consultation process] say, 'Look, I've transitioned from one gender to my true gender identity. I've told my family, I've told my workplace, I've got a passport with this new identity on it, I've changed my name.'"

"It is completely ridiculous that you then can't change your registered sex on the Births, Deaths and Marriages register in your state.

"So once you accept the lived reality that people are gender diverse, it really makes legal and administrative sense to allow a simple and straightforward approach."

Australian reforms could 'lead the world'

Director of advocacy and strategic litigation at the Human Rights Law Centre, Anna Brown, said it was critical legislation moved away from a medical approach to gender.

"The idea that a medical practitioner can or should 'verify' an individual's own sense of their gender identity is not only incorrect but also damaging to a person's sense of self, Ms Brown told ABC News.

"These changes are not only incredibly important on a practical level but will help reduce the high levels of stigma, social exclusion and discrimination faced by trans and intersex people.

"I'm hopeful that we will see change in Australia over the coming 12 months that builds on international best practice and really leads the world."

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