Debate about legal gender recognition in Western Australia has thankfully shifted the debate in Australia from one focused on the recognition of non-binary gender categories to one that questions the necessity of legal registration of sex and gender at all.
In a discussion paper in relation to a “Review of Western Australian legislation in relation to the recognition of a person’s sex, change of sex or intersex status“, the Commission makes numerous proposals, including to remove sex/gender from birth certificates and provide access to documents to “prove” sex, and certify gender.
As stated in the Darlington Statement and the Yogyakarta Principles plus 10, and like race and religion, there is no need for governments to register individuals by sex/gender. IHRA welcomes and supports these aspects of the Discussion Paper by the Law Reform Commission of Western Australia. However, the Commission has confused concepts of sex and sex characteristics in ways that have harmful consequences. Proving sex, particularly when sex is defined as sex characteristics, will cause harm to intersex people, and other people who have undergone forced, elective or necessary medical procedures. The Commission should instead propose to permit self-determination in access to gender recognition certificates.
Further, the inclusion of an attribute from the Sex Discrimination Act (Cth) in the terms of reference for the inquiry shows confusion about intersex people, but also the importance of this opportunity to take action to protect people born with intersex variations from discrimination and forced medical practices. This may have been inherited in the Commission’s terms of reference, but the Commission should nevertheless make concrete recommendations on these matters.
On this occasion, IHRA has endorsed a submission by Morgan Carpenter to the inquiry.