From a Bill before the ACT Assembly, a Queensland review shortly to commence, and the case of Norrie, a trans person seeking recognition of a non-binary gender identity, there is much speculation in Australia regarding birth certificates and identification documents. Internationally, relevant legal changes have taken place in Germany and Argentina.
This detailed briefing paper seeks to disentangle some of the issues. It reviews the current frameworks, and current proposals. The document also makes a series of recommendations regarding birth certificates and data collection.
The document will be useful to media organisations and representatives, IT staff and survey designers, governmental institutions, and organisations interested in intersex human rights issues.
Download the document (PDF format)
Birth registrations and medical treatment
We recommend an end to requirements for surgical or other clinical treatment in order to change documentation. We believe that there is no justification for such requirements for intersex people.
Further, the existence of explicit surgical or other clinical treatment requirements for trans people is mirrored by medical guidelines that impose de facto requirements for such treatment on intersex people. We recommend that:
- Medical treatment be completely decoupled from legal designations of sex for all people.
- BDM legislation should criminalise clinical treatments conducted solely for the purposes of making a registration or re-registration of sex, in the absence of a person’s own stated wish to change their physical characteristics.
Birth registration classifications
We recommend that:
- Infants or children should be assigned as M or F.
- Adults and competent minors should be able to change their birth sex classification through a simple administrative procedure.
- The classifications available for such changes should include F, M, X, and M+F; support for other multiple options is also desirable.
- Intersex should not be deemed synonymous with X; this means that the term “intersex” should not be included in a definition of X as doing so misgenders very many intersex people.
- Multiple different definitions of X are ok, including “Intermediate”, “Non-binary” and “Unspecified”. The meaning of chosen terms should be defined through cross- community consultation.
- Any definition of intersex must acknowledge the congenital character of intersex differences. A sole exception to this is in anti-discrimination law, where such terminology may impact on people perceived to be intersex.
Historical data on birth certificates
We recommend that:
- Historical data on previous names and sex should not be included on corrected or amended birth certificates unless requested by the applicant.
We support the collection of data on gender rather than sex, but we no longer support the detail of the current federal Guidelines.
- As a minimum requirement, the collection of data on gender should conform to the principles of the federal Guidelines, minimising data collection on sex and gender, and permitting the use of simple F, M and X markers.
- We recommend that X be defined as “indeterminate/unspecified”, or “non- binary/indeterminate/unspecified”.
- It is acceptable to offer “unspecified” as an additional, separate, option.
- It is our recommendation that organisations collecting data should additionally provide for multiple choice options, such as M+F.
- When data is collected, titles (such as Mr, Ms, etc.) should be optional, to avoid the creation of a de facto record of gender.
Because intersex people have many different gender identities, including F, M, X, M+F, it is not possible to capture data on intersex status using a gender marker. It should be recalled that current federal guidelines describe “X” as “indeterminate/intersex/unspecified” and not “intersex status”.
- If required, data on intersex status should be collected via a simple check box or query, separate to a classification for sex or gender. An explanation of the meaning of the word intersex is desirable, given widespread public misunderstanding. This could include a statement such that: “Intersex refers to people born with atypical sex characteristics”, or “Intersex is a term for people born with congenital differences in sex characteristics. Do you have an intersex variation?”
We acknowledge the kind support of the National LGBTI Health Alliance in the production of this document.
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