That Bill relates to amendment of the Births, Deaths and Marriages Registration Act 1997 (ACT), the Births, Deaths and Marriages Registration Regulation 1998 (ACT), and the Legislation Act 2001 (ACT) to "improve legal recognition of sex and gender diverse people in the ACT community".
The Committee asks "do any provisions of the Bill amount to an undue trespass on personal rights and liberties?" in relation to s 38 of the Human Rights Act 2004 (ACT).
In referring to the right to privacy under s 12 of that Act the Committee notes the requirement for recording of a person’s sex in the register of births, commenting that
section 24 of the Deaths and Marriages Registration Act 1997 (the Act) provides a process whereby a person, or in the case of a child, the child’s parents or guardians, may apply to the registrar-general for alteration of the record of the person’s or the child’s sex in the registration of their birth.
The Position concerning an adult
Subsection 24(1) concerns an adult, and at present requires (paragraph (c)) as a condition of making a valid application that “the person has undergone sexual reassignment surgery”. Clause 9 of the Bill proposes to repeal this paragraph substitute it with-
(c) the person believes their sex to be the sex nominated in the application (the altered sex), and—
(i) has received appropriate clinical treatment for alteration of the person’s sex; or
(ii) is an intersex person.
The Committee raises no issue concerning the removal of the requirement that an applicant has undergone sexual reassignment surgery, but there is a significant rights issue arising from what is proposed as a substitute. The ACT Law Reform Advisory Council (ALRAC), in its report Beyond the Binary: legal recognition of sex and diversity in the ACT (Report 2, March 2012) (‘the Report’) addressed this issue, and noted that there was majority support within the sex and gender diverse communities in the ACT for self-identification alone to be a sufficient condition. It noted that
[r]esearch conducted by A Gender Agenda, in their 2011 study of experiences of the sex and gender diverse communities in the ACT, reveals that most respondents (64 per cent) believe that the record of a person’s sex should be changed on the basis of making a statutory declaration stating their self-identification as a particular gender; 27 per cent of respondents felt that, in addition, the production of some form of ‘letter of support’ from a medical or psychological professional should be required; and 6 per cent of respondents believed that some non-surgical medical intervention should also be required (Report at 33).
ALRAC did not however endorse this standpoint, preferring to leave the issue as one of “policy” for the government. The policy outcome is however one that engages the right to privacy (HRA section 12).
The Committee did not attempt to come to a view whether self-identification alone should be a sufficient condition for making an application by an adult, and if it did consider the issue some members would not accept this position. Given however the viewpoints of those directly affected by the policy adopted, the Committee recommends that the Minister explain why self-identification alone should not be a sufficient condition for making an application by an adult.
ALRAC considered that “[a]t the heart of the issue is the extent to which the person applying to change the record of their sex and gender identity has to offer some guarantee or level of comfort that their change of sex and gender identity is genuine and is being recorded in good faith” (at 40). If it is considered that an applicant must demonstrate something more than self-identification, there arises a question about the stringency of the requirement that the person must have received “appropriate clinical treatment for alteration of the person’s sex”. While this notion is left undefined, it does suggest some form of medical or therapeutic intervention. In its 2009 report, Sex files: the legal recognition of sex in documents and government records (ALRC Report), the Australian Law Reform Commission recommended that that the criterion be whether the person had undergone or was undergoing “sex affirmation treatment”, and that “[p]sychological counselling concerning sex or gender identity” should satisfy this criterion; (at 38). Paragraph 24(1)(c)(i) appears to be more stringent. The ALRC proposal may not be appropriate in that it appears confusing.
The question is whether paragraph 24(1)(c)(i) might be replaced by a statement that better captures the viewpoint stated by ALRC.
The Committee draws these matters to the attention of the Assembly and recommends that the Minister respond.
The comments just made apply also to the provisions of subsection 25(1).
The position of a child
A child may not apply for alteration of a record, but its parents or guardians may do so if
(b) the parents, or person with parental responsibility, believe on reasonable grounds that alteration of the record of the child’s sex is in the best interests of the child; and
(c) the child—
(i) has received appropriate clinical treatment for alteration of the child’s sex; or
(ii) is an intersex person (paragraph 24(2)).
The comments above in relation to paragraph 24(1)(c) apply also to proposed paragraph 24(2)(c).
There is a question whether paragraph 24(2)(b) affords sufficient protection to a child. That the parents express an opinion as what is in the child’s best interests is not problematic, but, on the face of it, the parents need pay no regard to the desires of the child. They need adjudge only whether they consider that alteration of the record of the child’s sex is in the best interests of the child.
The ALRC standpoint was that “[i]n the case of a child (although possibly depending on the age of a child), the legislation could stipulate that the parent(s) or guardian must make a statutory declaration in relation to the child’s desire to identify as a particular sex” (at 39). If this standpoint is accepted, some issues concerning subsection 24(2) arise.
The first is whether an alteration to the records should be available only in respect of children who are above a certain age.
The second is whether the parents should be required to state that the child desires the alteration.
The third is whether there should be some process that would permit a child to procure an alteration to a record where one or all of the relevant parents and guardians do not consider an alteration to be in the child’s best interests.
The Committee draws these matters to the attention of the Assembly and recommends that the Minister respond.
