amendments to the Births, Deaths and Marriages Registration Act 1999 (Tas) and other matters relating to the legal recognition of sex and gender in Tasmania. ...
The reference pre-dated the introduction and passage of the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas) and sought advice more generally regarding the legal recognition of sex and gender. However, the TLRI has necessarily taken account of the recent passage of this legislation and framed its review on the basis of: whether the recent changes are functional and achieve their stated objectives; and what, if any, further reforms are needed to improve consistency with existing laws and human rights obligations.
The Institute concludes
the changes made by the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas) achieve the objective of reducing discrimination and trauma experienced by intersex and gender diverse Tasmanians by making it easier to obtain identification documents that accords with their gender identity. ... [The] new laws are generally consistent with best practice international human rights approaches and approaches being considered in other Australian jurisdictions.
The TLRI was also asked to consider questions surrounding medical treatment on children, particularly as it relates to intersex children. An unresolved issue in Tasmanian law is the way intersex people are treated. This Report addresses surgical interventions on intersex children and the need to respect the right of children to have input into their own medical treatment. The issue of consent is especially important given the permanent impact, physical, mental and emotional, that can be caused by surgical interventions. This Report makes a number of recommendations intended to eliminate the practice of non-consensual surgical interventions and to enshrine existing legal principles regarding the capacity of children to consent, or not consent, to medical treatment. ....
By implementing these reforms, the TLRI believes that greater clarity in the law will be achieved, and that the rights of a frequently marginalised group will be better protected. This Report makes use of specific terminology relating to sex and gender, including the terms ‘sex’ and ‘gender’, in ways that may not be immediately familiar to all readers.
The Institute's Terms of Reference were
In late 2018, the Attorney General, the Hon Elise Archer MHA, wrote to the Tasmania Law Reform Institute seeking its advice on several aspects of the law relevant to sex and gender. Accordingly, the Attorney General asked that the TLRI provide advice consistent with the following terms of reference:
- Consider, with reference to laws in other Australian jurisdictions: what steps should be required in Tasmania to register a change of a person’s sex or a person’s intersex status on official documents; and what categories of sex and/or gender should be displayed on birth certificates and other documents.
- Review the law and make recommendations for any reforms in relation to consent to medical treatment to alter a person’s sex or gender.
- Review definitions and the use of terms relating to sex and gender in Tasmanian legislation and make recommendations for reform.
Recommendation 1
The Tasmanian Government publish information resources and fund community awareness and education activities regarding amendments to the Births, Deaths and Marriages Registration Act 1999 (Tas).
Recommendation 2
The Long Title of the Births, Deaths and Marriages Registration Act 1999 (Tas) be replaced by the following: An Act to provide for the registration of births, deaths and marriages and to provide legal recognition for trans and gender diverse Tasmanians and those with intersex variations of sex characteristics.
Recommendation 3
An additional birth registration option, ‘Unspecified’, be made available to accommodate the needs of parents who, after 120 days, are not in a position to nominate the sex of their child as either male or female.
Recommendation 4
The Registrar of Births, Deaths and Marriages develop and publish guidelines addressing:
- what the Registrar should, and should not, consider in assessing and exercising their discretion to refuse applications;
- what additional information can and cannot be requested; guidance as to relevant factors to be considered in satisfying themselves regarding a child’s ‘will and preference’, including the child’s capacity to understand;
- the circumstances in which counselling should be requested, and the circumstances in which counselling is considered unnecessary;
- a regularly updated list of gender descriptors, with a notation that the list is a guide rather than an exhaustive list; and
- information and referral details that should be provided to applicants when the Registrar requests further information or evidence or rejects an application.
The TLRI recommends that these guidelines be developed in consultation with the trans, gender diverse and intersex communities, the Commissioner for Children and Young People and registries in comparable jurisdictions.
The TLRI recommends that these guidelines be subject to regular review to ensure they are responsive to developments in the law, society and needs of the relevant communities.
Recommendation 5
The Tasmanian Government conduct an audit of: • all government and statutory board composition requirements; and • eligibility criteria for grant programs to clarify whether selection is intended to be on the basis of sex or gender.
Recommendation 6
The Tasmanian Government enact all recommended reforms identified in Column 3 of Appendix 3 to ensure that the terms ‘sex’ and ‘gender’ are used consistently and accurately and in accordance with the definitions introduced or amended by the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas).
Recommendation 7
The Criminal Code should be reformed to criminalise non- consensual medical interventions in the following terms:
178F Unnecessary medical intervention to change the sex characteristics of children.
(1) Any person who performs a surgical, hormonal, or other medical intervention to alter or modify the sex characteristics of a child is guilty of a crime, unless: (a) it is performed to address a clear danger to the life or health of the child and it cannot be deferred until the child is able to give informed consent; or (b) it takes place with the informed consent of the child.
(2) Nothing in this Section is intended to apply to interventions involving a consenting transgender child seeking treatment to delay puberty or secondary sexual differentiation.
Charge: Performing unnecessary medical intervention to change the sex characteristics of a non-consenting child.
Recommendation 8
That intersex people should be able to pursue claims for compensation for personal trespass and breach of professional duty against doctors where medical interventions to alter intersex variations of sex characteristics have resulted in physical or mental harm, irrespective of any parental consent to the intervention at the time it was performed. Provision to this effect should be made in the Civil Liability Act 2002 (Tas).
The informed consent of the child on whom the intervention is performed should provide a defence in such cases. However, consent itself should not be a defence if the intervention was performed negligently and the child did not voluntarily assume the risk of such negligence.
The primary remedy should be compensatory damages for harm caused by any medical intervention to alter sex characteristics that did not satisfy the relevant factors.
Recommendation 9
The Tasmanian Government enact a Consent to Medical Treatment Act that covers the field with respect to children’s consent to medical care.
The TLRI recommends that this Act should enable a child of 16 years or older to obtain medical treatment and undergo surgical procedures when they consent to treatment and surgical procedures. For children under 16, the TLRI recommends that Gillick competence be enshrined in this Act.
The South Australian Consent to Medical Treatment and Palliative Care Act 1995 may provide useful guidance in this regard.
The TLRI does not recommend that counselling be a mandatory precondition to children receiving medical treatment or undergoing surgical procedures.
Recommendation 10
The Government give consideration to including in the Consent to Medical Treatment Act proposed in Recommendation 9 all the reforms recommended in Part 3 of this Report. The Act would be comprehensive in providing the entire legal framework for surgical intervention to alter the sex characteristics of children.
