Joshua Sykes
In August 2023, Independent MP Alex Greenwich introduced the Equality Legislation Amendment (LGBTIQA+) Bill 2023 into the NSW Parliament which sought to, among other things, provide for the introduction of gender self-identification which would allow people in New South Wales to change their legal gender voluntarily, with fewer restraints.
Following two days of hearings and 66 written submissions, Report 1/58 from the committee inquiry into the bill recommended that the bill proceed for consideration by the NSW Parliament. Further, it recommended that there is a need for additional policy measures and funding to improve the safety and wellbeing of LGBTIQA+ people in the state. The bill presents a vital opportunity for NSW to implement long overdue reforms in an area in which it remains far behind the national standard and amend the strict requirements which limit the ability of transgender people to access documents which match their gender expression and identity.
The Born Equal Report on Sexual Orientation, Gender Identity and Sex Characteristics in International Human Rights Law published by the United Nations Office of the High Commissioner for Human Rights expressed that States should endeavour to provide access to voluntary legal gender recognition. It linked this recommendation to the rights to freedom from discrimination and to equal protection under the law required by Article 7 of the Universal Declaration of Human Rights and article 26 of the International Covenant on Civil and Political Rights. The report also affirmed that the rights of transgender people to identity and freedom of expression must be protected. It recommended that a gender recognition process should be based on self-identification by the applicant, should be a simple administrative process, should not require applicants to fulfil abusive requirements (such as evidence of surgery), should recognise non-binary identities, and should include minors.
Presently, the NSW Registry of Births Deaths & Marriages requires that transgender people must have "undergone a sex affirmation procedure" to change their birth certificate. Section 32A of the Births, Deaths and Marriages Registration Act 1995 defines these procedures as ‘a surgical procedure involving the alteration of a person’s reproductive organs’. Not only does this overstate the significance of surgical intervention in gender affirmation, it excludes a wide array of gender affirming therapies that are also valued by many transgender people, such as hormonal therapies, chest masculinisation (mastectomy) or feminisation (implant) surgery, or cosmetic facial surgeries, from also qualifying a person for legal gender recognition.
The existing requirements create substantial access barriers for multiple reasons. Firstly, not all trans people want to undergo surgery. And secondly, for those who do, most gender affirming surgeries are very expensive and not covered by Medicare. Advocates like Jenny Leong, a member of the NSW Legislative Assembly who in August 2023 lodged a petition to allow transgender people to self-identify their legal gender, criticise the Act for unnecessarily medicalising the legal recognition of a person’s lived identity.
In a public statement in favour of the bill, Alastair Lawrie from the Public Interest Advocacy Centre observed that genital surgeries required under the Births, Deaths and Marriages Registration Act are sterilising, heightening the human rights concerns of requiring these surgeries in order to change one’s gender marker. Further, Lawrie notes that NSW is the last jurisdiction in Australia to maintain this requirement, with law reform processes in every other jurisdiction, including in Victoria’s 2019 reforms, featuring evidence of the harm this can cause.
These burdensome requirements infringe upon the self-determination of transgender people. Further, the United Nations High Commissioner for Human Rights has noted that transgender people are more vulnerable to other human rights violations, particularly in exposure to violence, when their name and gender details in official documents do not match their gender identity or expression. The need for greater protections for LGBTQIA+ people under Australian law has been recognised for many years; in 2003, for example, Rodney Croome proposed that a statutory Bill of Rights may provide a more robust grounding for promoting equal protection in Australia through the courts.
NSW is presently faced with an opportunity to overturn these antiquated and harmful requirements for achieving legal gender change, and to affirm the rights of transgender people to self-determination, identity and expression by creating an administrative process based on consent and recognition, which is inclusive and fair to all, regardless of individual preferences and capacities to engage with medical affirmation procedures. While more must be done, by taking this long overdue next step, NSW can finally play catch-up to the other states and bring transgender people closer to equal recognition under the law.
Joshua Sykes was an intern with the Australian Journal of Human Rights in Term 2, 2024.