Many thanks to Bruce Arnold for making me aware of this Australian development. The Law Reform Advisory Council of the Australian Capital Territory was asked in January 2011 to examine the legal recognition of transgender and intersex people in the Territory. It’s now published a report which you can read in full here.  Thirty-five recommendations are contained in the report, and are as follows:

In ACT legislation generally:

1. reference should consistently be made to ‘sex and gender diversity’, ‘sex and gender diverse people’, and ‘people in sex and gender diverse communities’. [p32]

2. when necessary, specific reference should be made to ‘transgender’, a ‘transgender person’, and ‘transgender people’ to refer to people who, having been born as physiologically either male or female, have changed or are changing their identity from one sex and gender to another. [p32]

3. when necessary, specific reference should be made to ‘intersex’, an ‘intersex person’, and ‘intersex people’ to refer to people who, because of their physiological characteristics at birth, do not identify only as female or only as male. The term intersex should not be used to refer to or include people who have changed or are changing their identity from one sex and gender to another. [p32]

4. it is not necessary or appropriate to define ‘female’ or ‘male’. Those terms do have an ordinary binary meaning and legislation is not necessary to confirm that. It is, however, appropriate to define terms of sex and gender diversity that are outside these binary terms, so that diverse sex and gender identity is given recognition as a part of a process of its being normalised. [p32]

5. the 2003 ACT Report audit of ACT laws which require a person to identify their sex and gender should be updated and extended to laws and practices, and that the need for those requirements should be reviewed with the intention of removing whenever possible a requirement that a person identify their sex and gender. [p43] In the Legislation Act 2001:

6. the definition of ‘transgender’ is appropriate and sufficient. [p33]

7. in the definition of ‘intersex’, reference to a ‘a genetic condition’ as the reason for a person’s intersex status is inappropriate, and it is sufficient to refer to the fact that an intersex person’s reproductive organs or sex chromosomes that are not exclusively male or female. [p33] In the Births, Deaths and Marriages Registration Act 1997 and Births, Deaths and Marriages Registration Regulation 1998:

8. the sex of a child born in the ACT should continue to be recorded by the Registrar-General, subject to recommendations for changes to the timing for notification and registration, and to the available categories of sex. [p34]

9. to give legal recognition to sex and gender diverse people who are not defined by the female/male binary, wherever the BDMR Act and BDMR Regulation refer to two sexes, male and female, they should be amended to recognise three sex and gender identities: female, male and intersex. [p33]

10. having regard to 1-3 above, the BDMR Act should be amended to replace the term ‘transsexual’ with reference to sex and gender diverse people, and to sex and gender diversity, unless it is necessary to refer specifically to transgender people. [p33]

11. the sex of a child when it is notified (s5 BDMR Act; s4(1) BDMR Regulation) should be any of female, male, intersex, to be advised, or indeterminate. [p35]

12. the option ‘indeterminate’ should be used only in circumstances anticipated by s9(2)(b) BDMR Act when it is not possible to determine the sex of a premature still-born child; it should not be used to when a child is or could be intersex, in which case one of the other four categories should be used. [p36]

13. at the time that the sex of a child is notified as ‘intersex’ or ‘to be advised’, the parents and any health practitioners involved in caring for the child should be provided with printed information, advice and resources, developed in consultation with representatives of the intersex community and expert health practitioners, which explain intersex and set out considerations for decisions that can be made about the child’s sex and gender identity. [p36]

14. the current 60 days allowed for the registration of the sex of any child (ss9 and 11 BDMR Act; s5 BDMR Regulation) should be extended to 180 days. [p36]

15. to give legal recognition to intersex people, the available categories for the registration of a person’s sex should be any of female, male, intersex and indeterminate. [p36]

16. the Registrar-General should be empowered to issue a birth certificate which shows a person’s sex as ‘unspecified’, in circumstances where a person is in the process of changing their identity from one sex and gender to another (‘transitioning’), or does not identify as having a sex. [p38]

17. the requirement in the ACT for a person to undergo sexual reassignment surgery to change the record of their sex should be abolished. [p38]

18. the requirement for a person to register a change in their sex and gender identity should not be more onerous than it is in the policy of the Passport Office. [p40]

19. when an intersex person seeks a change to the record of the sex on register, whether to female, male or intersex, the person need only rely on medical confirmation of their intersex status. [p40]

20. the requirement for a person to register a change in their sex and gender identity is a matter of policy for the government to decide, from among suitable and available options which range from self-identification to self-identification accompanied by corroboration by various classes of people. [p33 and p43]

21. it is not appropriate at this stage to prohibit, more broadly than the Discrimination Act already does, requests for disclosure of gender identity without a demonstrated legitimate need. [p43]

22. in light of the practice of the Registrar-General to issue a change of name certificate which does not show the person’s sex or former name, no changes to current law and practice under the Births, Deaths and Marriages Registration Act need to be made to ensure protection of the privacy of a person who has changed their sex and gender identity. [p46]

23. the current restrictions – in the BDMR Regulation and Office of Regulatory Services Policy – on access to a record of a person’s sex in the register are adequate, but information provided by the Territory from its register to another State or Territory, and access to the register provided by the Territory to another State or Territory, should be subject to the same restrictions on access as are set out in the BDMR Regulation and Office of Regulatory Services Policy. [p46]

24. s29 BDMR Act should accept an Australian passport or Document of Identity, in addition to an ‘interstate recognition certificate’, as evidence that the person mentioned is of the sex as stated in it. Further, reference in s29(3) to an ‘interstate recognition certificate’ should not be limited to a certificate ‘in relation to a person who has undergone sexual reassignment surgery’. [p47]

25. a Certificate of Particulars is a desirable mechanism to ensure equal access for ACT residents to reforms that are designed to guarantee legal recognition of sex and gender diverse people without reliance on inhumane eligibility requirements. [p48] In the Discrimination Act 1991:

26. having regard to 1-3 above, where the Discrimination Act refers to the attribute of ‘gender identity’, it should be amended to refer instead to sex and gender diversity. [p33]

27. protected attributes should include: i. a person’s identifying as intersex, as a sex other than their registered sex, as having no sex, and as being in transition for one sex to another ii. the record of a person’s sex having been altered under the BDMR Act or equivalent law or practice, and iii. a person’s physical presentation (including physical features, manner of speech, and dress) when it is not consistent with the person’s recorded birth sex or with the conventional physical presentation of a person of a particular sex. [p49] In the ACT public sector:

28. when an ACT public authority identifies and/or records a person’s sex: i. the person is entitled to inspect the record, and to have their sex identified and/or recorded (and if necessary amended) in accordance with their sex as registered under the BDMR Act) ii. no liability should attach to a person who, on behalf of an ACT public authority, incorrectly records a person’s sex in good faith. [p44]

29. if, as recommended, the available categories for the registration of a person’s sex under the BDMR Act are to be any of female, male, or intersex, then at least those three categories should be used in all ACT government activity. [p44]

30. when it is relevant for an ACT public authority to require a person to identify their sex – other than for notifying and registering a birth and for changing the birth record of their sex – the person should be asked their ‘sex and gender identity’, and should be given the option of identifying as any of: a) female b) male c) intersex d) none of the above. [p44]

31. the proposed changes to law and practice to give legal recognition to sex and gender diverse people will need to be accompanied by investment in public authorities for: i. programs of education and training about sex and gender diversity ii. the conversion of systems and documents to reflect the formal recognition of sex and gender diversity iii. funding to ensure that the legislative changes are part of a broader program of social inclusion. [p50] In the ACT:

32. to monitor and report on progress towards legal recognition for sex and gender diverse people in the ACT, the ACT Human Rights Commission must be sufficiently resourced to address the underreporting of discrimination against transgender and intersex people, and to support employers and service providers with information about their legal obligations under the Discrimination Act 1991 and the Human Rights Act 2004. [p50]

33. to address issues of unemployment, discrimination, poor physical and mental health outcomes, and low rates of social inclusion and participation among sex and gender diverse people: i. support and advisory services should be provided to sex and gender diverse people and their families ii. recurrent education and training programs should be provided to service providers, employers, workplaces and educational institutions. [p50] Nationally:

34. while the ACT is acting to remove legal obstacles for sex and gender diverse people across all its legislation, cooperation with the Commonwealth and with other State and Territory governments will be important in developing a national approach that addresses both the legal and social recognition difficulties faced by the gender diverse community. [p50]

35. it is desirable for the governments of the States, Territories and Commonwealth to audit their laws and practices for provisions which require a person to identify their sex and gender, and to review the need for those requirements with the intention of removing whenever possible a requirement that a person identify their sex and gender. [p48]