Legal Information: Discrimination, Passports and Birth Certificates

Unfortunately there are many circumstances where trans*, intersex and gender diverse people are unlawfully mistreated and discriminated against. This section outlines some general rights all people have and are supported within the Australian legal framework.

It is primarily written for trans*, intersex and gender diverse people and provides information about where to go and who to contact if you have experienced discrimination. Friends, family and service providers might also find this section useful in providing further insight into the range of experiences which exist for trans*, gender diverse and gender questioning people.

This section also discusses the process involved if you wish to change the sex marker on your passport and how to change your birth certificate.

Your right to access general services

Can people treat me unfairly because I am intersex or gender diverse?

The Commonwealth Sex Discrimination Act provides protection from discrimination on the basis of intersex status and gender identity. This means that it is unlawful for people to treat you unfairly in many areas including:

  • Employment
  • Housing
  • Provision of goods and services
  • Access to premises
  • Access to information

Some examples of unlawful treatment may involve not interviewing someone for a job, forcing a person who identifies as a woman to use male designated toilets, refusing a person service in a restaurant because of the way they look, or imposing special conditions that do not apply to anyone else.

The ACT, and most other states and territories also have some degree of discrimination protection. Although some jurisdictions (like the ACT for example) do not separately specify protection for intersex people there can still be some level of protection.

What toilets and changerooms can I use?

There are no laws that govern who can use what toilets and changerooms. The most appropriate person to decide which toilets or changerooms to use, is you. It may be unlawful for someone to stop you using the toilets or changerooms of your choice if they are doing it because of your gender identity or presentation.

What happens if I am treated unfairly?

Just because it is against the law to discriminate against gender diverse and intersex people does not mean it never happens! Australian research shows that 90% of transgender people experience discrimination, and 37% of transgender people experience discrimination on at least a weekly basis. If you are discriminated against, you may be able to make an informal, or a formal complaint. Making discrimination complaints can be a really effective way of educating people, changing policies, and reducing the discrimination that intersex and gender diverse people face in the future.

Legal Services:

The Australian Human Rights Commission can investigate and resolve complaints of discrimination, harassment and bullying based on a person’s:

  • sex, including pregnancy, marital or relationship status (including same-sex de facto couples) status, breastfeeding, family responsibilities, sexual harassment, gender identity,  intersex status and sexual orientation
  • disability, including temporary and permanent disabilities; physical, intellectual, sensory, psychiatric disabilities, diseases or illnesses; medical conditions; work related injuries; past, present and future disabilities; and association with a person with a disability
  • race, including colour, descent, national or ethnic origin, immigrant status and racial hatred
  • age, covering young people and older people
  • sexual preference, criminal record, trade union activity, political opinion, religion or social origin (in employment only)

It is against the law to be discriminated against in many areas of public life, including employment, education, the provision of goods, services and facilities, accommodation, sport and the administration of Commonwealth laws and services.

The Commission can also investigate and resolve complaints about alleged breaches of human rights against the Commonwealth and its agencies.

ACT Health Services Commissioner:  http://www.hrc.act.gov.au/health/?PHPSESSID=82c375d656a0a7b79698bca4a2c653fd

ACT Human Rights Commission:  http://www.hrc.act.gov.au/

or you can phone on (02) 6205 2222

Australian Human Rights Commission: http://www.humanrights.gov.au/complaints-information

           

 

Sex and Gender Diverse Passport Applicants:

Sex reassignment surgery is not a prerequisite to issue a passport in a new gender. Birth or citizenship certificates do not need to be amended for sex and gender diverse applicants to be issued a passport in their preferred gender.

A letter from a medical practitioner certifying that the person has had, or is receiving, appropriate clinical treatment for gender transition to a new gender, or that they are intersex and do not identify with the sex assigned to them at birth, is acceptable.

The letter will only be accepted from practitioners registered with the Medical Board of Australia (or equivalent overseas authority). ‘Appropriate clinical treatment’ does not have to be specified. For more information go to:  https://www.passports.gov.au/web/sexgenderapplicants.aspx

Birth Certificates:

 On 20 March 2014 the ACT Legislative Assembly passed the Births, Deaths and Marriages Registration Amendment Act 2014 (the Amendment Act).  The Amendment Act improves legal recognition of sex and gender diverse people in the ACT community.

The Amendment Act changes the requirements for people who wish to change their sex on their birth certificate so that sexual reassignment surgery is no longer required.  In place of the requirement for sexual reassignment surgery, a person seeking to change a record of their sex must now provide evidence that they are either an intersex person or that they have received appropriate clinical treatment.

In addition to the above legislative changes, the ACT has also changed its policy and will allow a new category to be recorded on birth certificates. This category can be nominated by individuals who are intersex or who identify as having an indeterminate or unspecified sex.  The category will be known as unspecified/indeterminate/intersex.  It is anticipated that birth certificates issued with this category may state either the entire category or just one of the subcategories eg. indeterminate. 

http://www.ors.act.gov.au/community/births_deaths_and_marriages/changes_of_sex

UPDATE:

On Thurday 20th March 2014, the Bill to change the requirement for surgery in order to change a person's marker on their birth certificate is to be debated. A Gender Agenda welcomes changes in the recording of sex on ACT Birth Certificates to be debated in the Legislative Assembly on Thursday. “We strongly welcome the changes to the Births Deaths and Marriages Registration Act, which will eliminate the requirement for individuals to have reassignment surgery prior to changing the sex on their birth certificate” said Peter Hyndal, spokesperson for A Gender Agenda. “The changes also provide a clear mechanism for intersex people who want to change the sex recorded on their birth certificate. The legislation as tabled will address a number of issues for transgender and intersex people in the ACT, but there is still more work to be done.

The current practice of unnecessary medical intervention on intersex children and infants constitutes a fundamental breach of an individual’s right to autonomy over their own body, and requires urgent attention. Transgender and intersex people also currently experience unacceptably high levels of mental health and associated issues as a result of social stigma, discrimination and isolation. Funding specific programs to increase the capacity of mental health professionals, educational institutions and other community organisations is urgently required to effectively address these issues”.