Links to domestic legislation

[GInnes]

Some posts have raised concerns about the Commission’s opinion on some of the laws governing a change in legal sex. The Commission has not yet come to a firm opinion about the merits of particular laws, definitions or systems.

However, the Commission is interested in looking at how state and territory laws in Australia differ from each other and how they are used in practice.

The Commission has referred to particular legal definitions in Sex Files – not as an endorsement of those laws – but to stimulate conversation on the blog about the ideal scheme for Australia.

I encourage you to continue those discussions. You may like to refer to the legislation below by clicking on the name of the Acts. Other Acts, Regulations or policies may also be relevant to this debate and I encourage you to post up additional links.

Relevant legislation in Australia

ACT: Births, Deaths and Marriages Registration Act 1997

NSW: Births, Deaths and Marriages Registration Act 1995

Please note that the Commission is aware of the amendments to the NSW Births, Deaths and Marriages Registration Act 1995 by the Courts and Crimes Legislation Amendment Act 2008. Although the Courts and Crimes Legislation Amendment Act 2008 has been enacted, the provisions relating to changes to the Births, Deaths and Marriages Registration Act 1995 are yet to come into force. Therefore, the information on Sex Files refers to the current legislative position in NSW. The Commission will take into account the new NSW regime in its consideration of any reform.

NT: Births, Deaths and Marriages Registration Act

Qld: Births, Deaths and Marriages Registration Act 2003

Vic: Births, Deaths and Marriages Registration Act 1996

SA: Births, Deaths and Marriages Registration Act 1996; Sexual Reassignment Act 1988

Tas: Births, Deaths and Marriages Registration Act 1999

WA: Births, Deaths and Marriages Registration Act 1998; Gender Reassignment Act 2000

I will be releasing some new information shortly to seek your comments about a proposed reform scheme for Australia.

I will keep you updated.

Graeme Innes

[Kathy Anne Noble]

Thank you for this Graham, it is very much needed as there are too many discrepencies between the States and Territories that need to come into line. This is why I have been advocating for "Consistency of word and law through out Australia, not just from the states and Territories, but also Federlly"

Kathy Anne Noble

[MAP from MAN]

Thank you Graham,

I note that the diagram in refernce to south australia refers to surgery where as it is my understanding that in south australia for people who are on androgen therapy and affirm a masculine identity by use of name and sex role, surgery to alter the genitals is not the pre-eminent factor indeed it is the impact of testosterone that has the greatest impact on this morhphology.

I would be very saddened to see that loss of liberty with regards to identity under current south australian law occurs for Members of M.A.N. on the basis that a higher level of surgery is required in other states.

yes i believe in consistancy but not at the cost of existing human rights. i feel that the move for legislative reform should be towards the best practice possible.

Unlike for those ( on the whole ) who affirm a feminine identity and who have been exposed to testosterone as teenagers and early adult life, testosetrone in an affirmed masculine person is a primary influnce in the physical re adocelence that is affirmation. It is nto as a result of surgery.

I have been reminded by discussoins with a number of men who seem for whatever reason to personal speak on this forum, that there are some for whom small chest size means that chest surgery is unnessary.

and what of children, I dont mean to offend some of the female identifying people on this forum, but increasingly young masculine affirming people who would of in the passed been placed on a regime of the pill are seeking puberty blockers (thankfully there is increased knowldedge of the predicament of sex/gender dysphoria) the fact is that males in genreal hit puberty later than females.
and the female form in uterus is the deafault form.

In my personal view tesosterone(androgen therapy) while not taken for the sole reason of phsysical puberty (the right way round) is far more agressive in its impact on the overall anatomical structures of the body.

thats why i feel that this focus on surgery is all wrong. We need to take into account the whole person, not just surgery to the genitals or reproductive organs which i think are subject to privacy law along the lines of ( toonen).

in my personal view the role of medical care should be sperated out from the role of legal identity.

[battybattybats]

"i feel that the move for legislative reform should be towards the best practice possible. "

Regarding rights-for-surgery.

If we consider the arguments of the Yogyakarta Principles http://www.yogyakartaprinciples.org/principles_en.htm which apply the existing principles of International Human Rights to the specific issues of sexuality and sex and gender diversity it states on the matter:

"PRINCIPAL 3 THE RIGHT TO RECOGNITION BEFORE THE LAW
Everyone has the right to recognition everywhere as a person before the law.
Persons of diverse sexual orientations and gender identities shall enjoy legal
capacity in all aspects of life. Each person’s self-defined sexual orientation and
gender identity is integral to their personality and is one of the most basic
aspects of self-determination, dignity and freedom. No one shall be forced to
undergo medical procedures, including sex reassignment surgery, sterilisation
or hormonal therapy, as a requirement for legal recognition of their gender
identity. No status, such as marriage or parenthood, may be invoked as such
to prevent the legal recognition of a person’s gender identity. No one shall be
subjected to pressure to conceal, suppress or deny their sexual orientation or
gender identity."

It goes on:
"States shall:
A. Ensure that all persons are accorded legal capacity in civil matters, without discrimination
on the basis of sexual orientation or gender identity, and the opportunity to exercise that
capacity, including equal rights to conclude contracts, and to administer, own, acquire
(including through inheritance), manage, enjoy and dispose of property;

B. Take all necessary legislative, administrative and other measures to fully respect and
legally recognise each person’s self-defined gender identity;

C. Take all necessary legislative, administrative and other measures to ensure that procedures
exist whereby all State-issued identity papers which indicate a person’s gender/sex —
including birth certificates, passports, electoral records and other documents — reflect
the person’s profound self-defined gender identity;

D. Ensure that such procedures are efficient, fair and non-discriminatory, and respect the
dignity and privacy of the person concerned;

E. Ensure that changes to identity documents will be recognised in all contexts where the
identification or disaggregation of persons by gender is required by law or policy;

F. Undertake targeted programmes to provide social support for all persons experiencing
gender transitioning or reassignment."

I think that we need to ensure that all of Australia becomes fully compliant with it's human rights obligations according to the Yogyakarta principles! Unless of course we can EXPAND on the Yogyakarta principles?

[teegmeree]

very nice site :-)

[alisoncc]

Ø Asia: Japan has already expressed its support. However, this is currently the only Asian State to join the initiative. Timor-Leste supported the previous joint statement in 2006 but has not yet joined the current statement, and should be encouraged to maintain its support this time also. South Korea also supported the previous joint statement in 2006, but is reluctant to join this time because of a law criminalising homosexual conduct in the military, and it will be important to urge South Korea to maintain its past support. Other Asian States to approach for support include Nepal, the Philippines, Thailand and whichever other States NGOs in the region feel might be inclined to support. In the Pacific region, it is worth noting that Fiji includes sexual orientation in its constitution, and a number of other States might consider supporting the statement, if approached.


How do I contact my government?

Ø The most important contact is your government’s Foreign Ministry in your capital. Contact details for the Foreign Ministry of each country can be found at:

http://programs.ssrc.org/gsc/datasphere/ministries/

Ø It is also useful to copy any message to your country’s Ambassador in New York. Contact details for the New York missions of each State can be found at:

http://www.un.org/members/missions.shtml

What do I tell them?

Ø Send your Foreign Ministry a copy of the joint statement and the Fact Sheet we have prepared to help provide governments with more information (attached).

Ø Thank them for any past support they have demonstrated for sexual orientation and gender identity issues, or for principles of equality and non-discrimination more generally, and emphasize that this is a very straightforward statement focused on recognising that all human beings are entitled to be protected from serious human rights violations.

Ø Point out that on the 60th Anniversary of the Universal Declaration of Human Rights, it is important to affirm the principle of universality: that all human beings, irrespective of their sexual orientation or gender identity, are entitled to equal dignity and respect.

Ø Underline that the statement builds on similar past initiatives, and will not be subject to a vote. It creates no new rights, but simply seeks the application of existing international standards to those who face human rights violations because of their sexual orientation or gender identity.

Ø Point out that the statement is already attracting broad support from over 50 States cross-regionally, encourage them to join the statement, and ask for a specific response to your request. You may also wish to request a meeting to discuss the matter further.

Ø You know your own country best. Feel free tailor this information to the context of your country or region, while maintaining a constructive approach.

Questions or further information?

Ø Please keep us informed of your country’s response. A coalition of international NGOs is closely monitoring the initiative, and may be reached at:

coordination@...

Thanks for your help with this important human rights initiative. Let’s make the 60th Anniversary of the Universal Declaration of Human Rights an occasion to remember!

Hugs Alison