30 June 2015
This paper argues why transgender people should not be required to undergo surgery to have the sex identified on their NSW Government records changed. It summarises the current situation in NSW, examines international precedents and makes the case for needed change.
In response to a recent question in NSW Parliament from the Member for Sydney, the Attorney General committed to reviewing the Human Rights Commission report ‘Resilient Individuals: Sexual Orientation, Gender Identity and Intersex Rights’, which recommends changes to NSW law with regard to transgender and intersex communities.
A number of reforms are needed to give transgender and intersex persons equal protection of the law however this discussion paper focuses on the need to resolve the specific issues transgender people face when seeking to change their birth certificate to reflect their true sex or gender. Additional reforms are needed to ensure equality before the law for all.
Current situation in NSW
In July 2013 the Australian Government adopted the Guidelines on the Recognition of Sex and Gender and no longer requires sex reassignment surgery to recognise a change of gender on Australian Government records. The Australian Government will issue a new gender on passports if an applicant provides a letter from a medical practitioner certifying that they have had or are receiving appropriate clinical treatment for gender transition – the appropriate treatment does not have to be specified.
However these guidelines do not cover birth certificates, which are issued by individual states and territories.
In NSW, irreversible sex affirmation surgical procedures are required before a person can apply to correct their birth certificate.
Requiring surgical procedures is considered a violation of human rights and is not world’s best practice.
The United Kingdom, New Zealand, Malta, Germany and recently Ireland allow a person to correct their birth certificate without undergoing surgery. Other jurisdictions such as Norway are in the process of establishing legislation in response to recommendations in the World Health Organization’s interagency statement on eliminating forced, coercive and otherwise involuntary sterilisation1.
In 2012 the Human Rights Tribunal of Ontario ruled that ‘transsexual surgery’ requirements to change birth certificate sex designations are discriminatory and in 2014 the American Medical Association recommended that states remove these requirements. California, Iowa, Oregon, Vermont, Washington, Rhode Island, Washington DC and New York do not require surgery before changing sex designation on a birth certificate.
In some jurisdictions, applicants either produce a statutory declaration or statement from their treating physician.
The UK requires someone to have lived as their identified gender for more than two years, be diagnosed with gender dysphoria, and have medical treatment. If there has been no surgical intervention, the treating physician must explain why alternative treatment is appropriate. A gender recognition panel assesses each application.
In New Zealand an applicant does not have to have had surgery, but is required to have “some degree of permanent physical change”2.
New York requires a physician to confirm that a requested change more accurately reflects the applicant’s sex and gender identity”3.
Ontario requires a treating physician to confirm that the sex designated on a birth certificate does not accord with the applicant’s gender identity 4.
Ireland’s legislation is widely accepted as world’s best practice. It allows transgender individuals to legally change their birth certificate through a statutory declaration process without any need for medical documentation5.
Why is a change needed?
Gender affirmation surgery is not always wanted, safe or available. For example phalloplasty is a risky and expensive surgical procedure which is generally not performed in Australia. (The expense and availability of sex re-assignment surgery, whilst an important issue, are out of the scope of this discussion paper).
Surgery is not the only option to transition with hormone treatment more common. The vast majority of transgender identified individuals live within their gender identity without surgery. Transgender groups advocate that gender and sex are based on more than genitalia.
It is vital that the Births, Deaths and Marriages register is accurate. The state should hold correct personal documentation of its citizens and all citizens should be able to access an accurate birth certificate.
Birth certificates are used by employers including for police checks; they are used to access services and benefits. There are negative consequences of having a birth certificate that does not correctly reflect your gender and sex.
An incorrect birth certificate means disclosing one’s former gender when applying for a job and having difficulty accessing medical services. Transgender people often experience discrimination and stigma and it should be their choice who they inform about the deeply personal matter of their transition. The transgender community is a minority group with alarmingly high attempted suicide rates and having an incorrect birth certificate contributes to feelings of isolation, social rejection and insecurity.
The differences in state and federal legislation leave many transgender people with inconsistent documentation, such as a passport that identifies someone as female and a birth certificate that identifies them as male. This makes accessing services that require multiple forms of identification frustrating and embarrassing.
A 2011 report found that forty per cent of those who presented ID that did not match their gender identity experienced harassment, with three per cent reporting assault6.
Requiring surgery adds to the disadvantage and stigma experienced by members of the community and reinforces the stereotype that transgender persons must have expensive and invasive surgery in order to live in their felt gender.
Preferred Model for Change
Transgender organisations and the Human Rights Commission7 advocate for a model that allows a change of gender on government records and proof of identity documentation with a statutory declaration or affidavit – this is world’s best practice and is supported by human rights organisations.
Removing the requirement for medical verification supports self-affirmation and better reflects how transitioning occurs, which not wholly about medical treatment.
Invitation to Comment
This discussion paper seeks to give stakeholder groups and individuals the opportunity to provide feedback, comments, suggestions and personal stories relating to the need to remove mandatory surgical interventional for people wishing to change the sex identified on their birth certificate. A report based on submissions will help to inform legislation to be introduced into the NSW Parliament later this year along with the NSW Cross-Party LGBTI working group.
To provide comment: email@example.com or post to Alex Greenwich MP 58 Oxford Street Paddington NSW 2021
Closing date: August 21,2015
 OHCHR, UN Women, UNAIDS, UNDP, UNFPA, UNICEF and WHO. Eliminating forces, coercive and otherwise involuntary sterilization: An Interagency statement, May 2014. http://www.who.int/reproductivehealth/publications/gender_rights/eliminating-forced-sterilization/en/
 General information regarding Declarations of Family Court http://www.dia.govt.nz/diawebsite.nsf/Files/GeninfoDeclarationsofFamilyCourt/$file/GeninfoDeclarationsofFamilyCourt.pdf
 A Local Law to amend the administrative code of the city of New York, in relation to amending sex designation on birth records http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=1937607&GUID=DA36C81B-7498-49EB-9581-A785349F4C2F&Options=&Search=
 Application for a Change of Sex Designation on a Birth Registration of an Adult http://www.forms.ssb.gov.on.ca/mbs/ssb/forms/ssbforms.nsf
 Gender Recognition Bill 2014
 J Grant, L Mottet & J Tanis. Injustice at every turn. A report of the national transgender discrimination survery. 2011. https://calculators.io/national-transgender-discrimination-survey/
 Human Rights Commission: Resilient Individuals: Sexual Orientation Gender Identity & Intersex Rights 2015 https://www.humanrights.gov.au/our-work/sexual-orientation-sex-gender-identity/publications/resilient-individuals-sexual