Bill To Allow Gender Change On Birth Certificates Without Surgery Introduced in Victoria

Wednesday 26 June 2019 @ 3.03 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

On 18 June 2019, the Births, Deaths and Marriages Registration Amendment Bill 2019 (the “Bill”) was introduced to Victoria’s Legislative Assembly by Attorney-General and Minister for Workplace Safety, the Hon Jill Hennessy MP. The Bill is currently being considered by the Assembly.

Object of the Bill

According to the Bill’s Explanatory Memorandum (“EM”), the object of the legislation is to amend the Births, Deaths and Marriages Registration Act 1996 to:

“… remove the requirement for a person to have undergone sex affirmation surgery before being able to apply to alter the sex recorded in their Victorian birth registration or to obtain a document acknowledging their sex from the Victorian Registrar of Births, Deaths and Marriages (the Registrar).”

The proposed amendments will allow an adult to apply to alter the sex recorded in their birth registration to a sex descriptor of their choice.

ABC News reports the reform is aimed at improving existing laws, where Victorians can only change their birth certificate after they have undergone gender reassignment surgery.

Children will also be able to apply to alter the sex on their birth certificate but only with the backing of their parents and a supporting statement from a doctor, registered psychologist or another prescribed person who can confirm it would be in the child’s best interest.

If passed, the following Victorian legislation will be amended:

  • Births, Deaths and Marriages Registration Act 1996;
  • Children, Youth and Families Act 2005;
  • Corrections Act 1986;
  • Serious Offenders Act 2018; and
  • Sex Offenders Registration Act 2004.

While the Births, Deaths and Marriages Registration Act 1996 will be amended, consequential amendments to the remaining legislation is necessary in order to provide an approval process for applications to alter a record of sex in a birth registration, or for a document acknowledging a person's sex, made by a youth justice detainee, a person who is a prisoner, on parole, under supervision as a serious sex offender or a registrable offender.

Comment and Reaction on the Bill

Ms Hennessy said in an article in The Age:

“The current surgery requirement sends a painful and false message that there is something wrong with being trans, gender diverse or intersex that needs to be ‘fixed’. That’s why we’re removing this cruel and unfair barrier.”

Speaking to ABC News, Premier Daniel Andrews said he was hopeful the legislation would have the support it needed the second time around:

"In this state, equality is not negotiable and we are well-known — and I think well-viewed — for that fact that we treat every Victorian equally with respect and dignity and that who you are is enough, you're valued for exactly who you are."

Victorian Opposition Leader Michael O'Brien said he would like to see the details of the Bill in its current form before making a decision on whether or not to support the legislation:

"We don't know if it's going to be exactly the same bill, or a different bill, or slightly different, so we'll see the detail and we'll make a reasoned decision. I suppose society is grappling with that question of, is a birth certificate supposed to reflect how you were born, or does it reflect how you identify at a point in time?"

Acting Executive Director of Transgender Victoria, Sally Goldner said ending the requirement was vital to give everyone the right to a birth certificate that reflects their real sense of identity, she said under current laws, people are often forced to “out” themselves when applying for work, or even have surgeries they don’t really want:

“The reality is that half of the transgender community do not identify as male or female, so having these improvements will be vital to a fairer system."

Reflecting on the cost of surgery in an Opinion Piece for the SMH, Goldner said:

“… the current out-of-pocket cost not covered by Medicare or private cover for trans women is $16000 and for trans men (those assigned female at birth who identify as male) is $70,000. The latter figure only covers one stage of that surgery. Trans men are also required to undergo a hysterectomy, which is often denied due to prejudice and inaccurate beliefs that result in a vicious circle of discrimination.”

Requirements in other States and Territories

Currently, Tasmania, the ACT, NT, WA and SA have all already removed the requirement for surgery to occur before a birth certificate gender is changed.

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