Submission on removing surgical requirements for changes to birth certificates in NSW

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Independent NSW MP Alex Greenwich published a discussion paper in July 2015, on “why trans* people should not be required to undergo surgery to have the sex identified on their NSW Government records changed.” The paper recognises that,

A number of reforms are needed to give trans* and intersex persons equal protection of the law however this discussion paper focuses on the need to resolve the specific issues trans* people face when seeking to change their birth certificate to reflect their true sex or gender. Additional reforms are needed to ensure equality before the law for all.

OII Australia was invited or requested by a range of parties to comment on numerous occasions during the inquiry submission period, and thus we made a submission despite the narrow suggested scope of the inquiry.

The submission reflects our concerns on issues of involuntary or coerced medical treatment, and on proposed sex or gender classifications. It draws upon an international intersex community consensus statement, reports on intersex human rights and trans human rights, prior policy work by OII Australia, and discussions with partner organisations across Australia and internationally.

Recommendations

We made the following recommendations:

  1. Changes to medical requirements and classifications need to be addressed as part of a more extensive discussion about requirements for sex classifications and medical treatment in NSW. This consultation may have engendered such a debate.
  2. There should be no requirement for surgical or hormonal treatment to change sex classification, for anyone.
  3. Noting the current requirement in births, deaths and marriages legislation for surgical or hormonal interventions to modify sex characteristics, consideration should be given to the use of the opportunity for reform to outlaw such practices without the personal informed consent of the person choosing such interventions. Malta provides a precedent.
  4. A non-binary sex classification option termed either “not specified” or “non-binary” should be available to individuals who can provide informed consent.
  5. Some members of OII Australia and other persons in the intersex community are both male and female. A new classification, M+F, should also receive recognition, on the same basis as a non-binary option.
  6. Parents should be given an extended period of up to three years to declare the sex of their child. While we have reservations about any deadline for sex registration due to the possibility that an approaching deadline may prompt unnecessary and damaging sex assignment treatments, developmental psychologists suggest that children become able to identify their gender at around the age of 3.
  7. The sex registration of any child should be changeable via a simple declaration by one parent. This should occur in a manner that reflects the rights and freedoms of the child, consistent with the evolving capacities of the child.
  8. All adults should be able to self-declare their preferred sex classification through a simple declaration.
  9. Individuals changing assignment should not be required to be single.

We warmly thank Alex Greenwich MP for the opportunity to comment on his discussion paper, and for his engagement on broader issues.

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