ACT Bill To Improve Processes For Changing Official Documents To Reflect Lived Gender Identity

Thursday 30 July 2020 @ 1.37 p.m. | Legal Research

The Births, Deaths and Marriages Registration Amendment Bill 2020 (the Bill) was presented to the ACT Assembly on 23 July 2020 by Shane Rattenbury MLA, Minister for Justice, Consumer Affairs and Road Safety, (the Minister) and is described by the Minister as fulfilling, in part, a commitment of the Government to "improve processes for changing birth registration and birth certificates for trans and gender diverse people, particularly young people as stated in the Capital of Equality First Action Plan 2019 and 2020". The Minister said in a Media Release:

"The proposed changes will allow young people to have their true lived gender identity recognised on official documents."

The Bill is also introduced to give effect to the Government's Response to recommendation 6 in the Review of the Domestic Adoption Process in the ACT, namely the introduction of "integrated birth certificates".

Objectives 

According to the Minister's Explanatory Statement, the key objective of the Bill is to remove the barriers that trans, intersex or gender diverse young people face in changing their given name or particulars about their sex (their gender identity particulars) to better reflect their gender identities. Further, upon having gender identity particulars changed, they may then obtain an updated birth certificate or a recognised details certificate. The additional ways to alter a birth certificate introduced by the Bill are to be administered in a manner that is accessible to trans, intersex or gender diverse young people in terms of financial costs, expediency and user-friendliness.

The Bill also has, according to the Explanatory Statement, the objective of supporting the adoption community in the ACT by allowing the Registrar-General to issue "integrated birth certificates". These changes mean that when Bill is enacted and commences, individuals born in the ACT and adopted may apply for a birth certificate which includes the details of both birth parents and adoptive parents. As well, an integrated birth certificates may also be issued in some cases where a person born overseas is adopted in the ACT.

Amendments Removing Barriers For LGBTIQ Community

The amendments proposed by the Bill, according to the Explanatory Statement, "create additional pathways for the change of gender identity particulars (sex and/or given name) for a young person under 18 years old". Changes that can be made through the additional pathways created by the Bill, relate only to written information recorded on a register maintained by the Registrar-General and on birth certificates. The changes do not authorise a young person to make independent decisions about their medical or other treatments for gender dysphoria.

Under the changes proposed by the Bill, the eligibility criteria for a transgender, intersex or gender diverse young person to apply for a change of registered details varies based on the age of the young person and whether they have support of a person with parental responsibility.

A significant change according to the Ministers statement is, that the amendments recognise that transgender, intersex or gender diverse young people who have reached the age of 16 years have the capacity to apply for a change of gender identity particulars independently and as if they were adults.

Young persons under 16 years old may also apply to change their registered gender identity particulars, but require the consent of both parents, or one parent (or person with parental responsibility) in certain limited circumstances. In cases where the young person does not have parental consent they will be able to apply to the ACT Civil and Administrative Tribunal (the ACAT) for leave to make an application to the Registrar General. Where leave is granted by ACAT, the young person may apply directly to the Registrar-General for a change of registered sex and/or given name to better reflect the person’s gender identity.

Young persons under 12 years old may apply to ACAT for leave only if at least one person with parental responsibility has given consent, and exceptional circumstances apply.

Changes Affecting Adoption

The Bill also proposes amendments allowing adopted persons to apply for an "integrated birth certificate" which will include details of the person’s birth parents and adoptive parents, recognising their personal and family history. Conditions applying to "integrated birth certificate" allow a person to apply if the person:

 (a) was born in the ACT;
 (b) was adopted in the ACT or in another Australian State or Territory, and
 (c) is entitled to access identifying information under Part 5 of the Adoption Act 1993 (ACT).

The Bill also allows the Registrar-General, upon application, to issue an integrated certificate to a person who was born in a foreign country, and adopted in Australia, if the Registrar General has all the relevant information to produce the certificate.

According to a Ministerial Media Release:

“The current process of issuing a birth certificate with adoptive parents listed as birth parents reflects historical attitudes where secrecy was considered important to protect children and adoptive families from the stigma associated with adoption, . . . Integrated birth certificates means recognition that those who have been adopted deserve the option of a birth certificate that shakes off this historical stigma, and that acknowledges the reality of their lived experience.”


Expected Bill Commencement

If passed, the Explanatory Statement indicates that the Bill will commence on a date fixed by the Minister by written notice, or 12 months after its notification day, whichever happens earliest, allowing Access Canberra [ACT Government Services] and the ACAT sufficient time to take all necessary steps in implementing the legislative changes introduced by the Bill.

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