Comment: The right to the right document for trans and gender diverse

What Should Restroom Signs Say?
More options for trans and gender diverse people - from bathrooms to birth certificates - can also help businesses and governments. Source: Getty Images

Seven of Australia’s eight states and territories require surgery to change the sex marker on a birth certificate. But those laws could soon change, much to the relief of trans and gender diverse people.

The right to a birth certificate (and other documentation) that accurately reflects who a person is might be considered such a basic right that many people might take it for granted. Unfortunately, trans and gender diverse (TGD) people are one group (among others) frequently overlooked in regard to this basic human right. The Victorian government announcement on making laws in this area more equitable and respectful (South Australia also recently announced similar moves) is extremely welcome.

Currently, laws in seven of Australia’s eight states and territories, including Victoria, require having surgery the requirement to change the sex marker. The proposals would follow the great 2014 lead of the ACT (and numerous other countries including Ireland, Malta and Argentina) to enable change regardless of surgery.

For many TGD people, surgery is not possible due to concurrent medical situations; the out-of-pocket cost (a separate of issue of discrimination) conservatively $15,000 for trans women, up to $100,000 for trans men. Also, many TGD people live as their innate sense of self without surgery. Improving the law will enable people to have the documentation they need in many aspects of life, such as e.g. 100 points, making life easier for them, and also for employees of banks and so on.

Currently only the ACT allows changes for minors (with parental/guardian approval). Not having accurate birth certificates has led to issues of minors applying for school holiday jobs having to “out” themselves and often missing out on the job, despite the latter possibly being discrimination. Having better laws therefore has practical benefits for all including both TGD people and also employers who have less to distract them from hiring an equally good employee.

A critical aspect of the reforms is having more options than male or female. As per two Australian research pieces, From Blues to Rainbows and the First National Trans Mental Health Study, a third of TGD people identify as other than male or female. Inclusion of more than 2 options - and the right not to specify - simply includes everyone.

Another critical aspect of the proposals is ending “forced divorce.” This involves two people who marry, one with male, one with female on their birth certificate at the time of the marriage, and one then later realises their need to affirm their true self and the partner is still supportive. Mostly, the TGD person is denied the right to change their certificate until the couple divorces on the grounds that “we can’t create (sic) a same-sex marriage because federal law overrides state law.” While this interpretation is contested – and changing the federal Marriage Act would end this “Hobsons Choice” nationally – changes at state/territory level (again already in place in the ACT) would be an interim solution.

With the process for change, TGD people believe affirmation by a health professional implies we have some sort of health issue, rather than simply being ourselves. We would prefer something akin to the passport application whereby an adult who has known the TGD person for a certain length of time could simply sign a declaration affirming the TGD person’s gender. This would be far more time and cost effective than having a doctor’s or psych appointment to simply print off a standard letter.

Finally, it would be both equitable and common sense for TGD people, business and government if all eight states and territories could have uniform laws based on these principles.

The proposed changes are welcome and overdue. I call on all Victorian MPs to support them; let’s just get it done.

Sally Goldner is Executive Director of Transgender Victoria; the views expressed are her own.