Act Legislative Assembly amends Births, Deaths and Marriage Act for greater recognition of trans and intersex people
The ACT Legislative Assembly has voted through amendments to the Births, Deaths and Marriage Act 1997 (ACT) to provide better legal recognition for trans and intersex people.
The amendments eliminate the need for gender reassignment surgery as a prerequisite for trans people to change their legal sex on their birth certificate.
The new reforms implement recommendations from the ACT Law Reform Advisory Council’s ‘Beyond the Binary’ report, and also introduces an introduction of intersex in ACT law.
The amendments have been welcomed by trans and intersex advocates.
The ACT Government’s Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) Advisory Council’s chairperson Heidi Yates commented: “These reforms importantly follow the lead of the Federal Government’s passport policy, which provides an alternate, nonsurgical regime for change of sex on key identification documents”.
The Bill will also update the definition of ‘intersex’ in ACT law, and provide a clear administrative process for intersex persons to change the sex on their birth certificates.
Morgan Carpenter, President of Organisation Intersex Australia (OII) has welcomed the increase in time limit for registration of a birth, and the likely absence of any necessity for clinical treatment for intersex people who may wish to change classification.
“We welcome the naming of a third option as ‘X’ rather than ‘intersex’.” Carpenter said. “Following our discussions with the ACT government, and opposition, we have two broad remaining concerns,” Carpenter told SX.
“The definition of intersex that has been adopted is too broad for such legislation, and is currently being used to justify the position of a trans person who seeks classification by the High Court as intersex.
“In our view, a narrower definition is necessary to secure the development of appropriate health and human rights policies in respect of intersex people. Those health and human rights issues are distinctly different to those of people with unambiguous sex who wish to change their sex or gender marker.”
Carpenter also suggested the definition of intersex should recognise intersex as a congenital state that exists from birth.
“In correspondence with the ACT Attorney-General, Simon Corbell, the congenital nature of intersex has been acknowledged,” said Carpenter. “The Minister has written that, “The government recognises that, by definition, ‘intersex’ is a biological condition and that a person cannot undergo clinical treatment to become an intersex person.”
Carpenter is also concerned with the stigmatising aspect a third sex marker could bring to intersex people.
“The overwhelming majority of intersex people are comfortable with a male or female assignment,” Carpenter explains, “and we do not wish for intersex infants and children to be mis-assigned to an experimental, stigmatising third category. For example, persons with a third sex marker will be unable to marry, may be “outed” at school, will be unable to participate in team sports at school, or travel to the United States.”
OII also raised concerns about the wellbeing of intersex children who may be subjected to assignment surgery in order to avoid being labelled as a third sex.
"In common with other intersex-led organisations, a number of whom have agreed a common statement on the issue, we do not welcome assignment of intersex infants and children to a third classification," said Carpenter.
"We do not believe that the implications of this are well understood, including by trans and other allies; deeper consultation is needed with intersex-led organisations.
"The Minister has commented that, it is into this pressurised environment that the government proposes a third category to “reduce the risk that parents will subject their child to gender assignment surgery or other medical procedure to match the child’s physical characteristics to the chosen sex“.
"Our experience and our considered view as an intersex-led organisation, is that it is far more likely that parents of an intersex infant will feel incentivised to avoid an experimental or third classification at all costs. Surgery to assign a gender is, contentiously and mistakenly, often done “in the best interests of the child”, for rationales that include stigmatisation and parental distress."
OII hopes the government will legislate and regulate specifically on the issue and OII Australia will continue to approach the ACT government on this matter