Making the Invisible Visible Again: Pathways for Legal Recognition of Sex and Gender Diversity in Australian Law
DOI:
https://doi.org/10.69970/gjlhd.v7i2.1184Abstract
People that identify as gender diverse or who are born with non-binary sex characteristics have traditionally been excluded from the law, lawfully discriminated against, or been made invisible by the law. In recent years, this has begun to shift as law reform bodies in Australian explore pathways for providing legal recognition of sex and gender diversity within our community. This article explores the legislative reforms that have taken place in this area in recent years, which has resulted in significant changes to State and Territory laws regulating the way sex and gender is recorded and altered on Birth Deaths and Marriages Registers, with important consequences for the way sex and gender is legally recognised in those jurisdictions. The article then explores the extent to which the new provisions align with the self-identification model of reform and whether these new forms of legal recognition have translated into meaningful legal protection for sex or gender diverse people in Australia. The article concludes that, despite the significant positive steps forward achieved by legislative reforms in this area, there are still many gaps when it comes to the protection and promotion of the rights of non-binary or gender diverse individuals.
References
Reference List
A Articles/Books/Reports
ACT Law Reform Advisory Council, Beyond the Binary: Legal Recognition of Sex and Gender Diversity in the ACT (Report No 2, March 2012)
Australian Human Rights Commission, Resilient Individuals: Sexual Orientation, Gender Identity and Intersex Rights 2015 (Report, June 2015)
Blincoe, Emily, ‘Sex Markers on Birth Certificates: Replacing Model with Self-Identification’ (2015) 46(1) Victoria University of Wellington Law Review 57
Butler, Judith, Gender Trouble: Feminism and the Subversion of Identity (Routledge, New York, 1990)
Department of Prime Minister and Cabinet, Religious Freedom Review (Report, 2018)
Australian Government, Australian Government Response to the Religious Freedom Review (Report, 13 December 2018)
Fox, Mem Possum Magic (Scholastic, Australia, 1983)
Gooren, Louis ‘The Biology of Human Psychosexual Differentiation’ (2006) 50(4) Hormones and Behaviour 589
Grenfell, Laura, ‘Maxing Sex: Law’s Narratives of Sex, Gender and Identity’ (2003) 23 Legal Studies 66
Grenfell, Laura and Anne Hewitt, ‘Gender Regulation: Restrictive, Facilitative or Transformative Laws?’ (2012) 34 Sydney Law Review 761
Romeo Franklin, ‘Beyond the Medical Model: Advocating for a New Conception of Gender Identity in the Law’ (2005) 36(1) Columbia Human Rights Law Review 713
Human Rights and Equal Opportunity Commission, Sex Files: The Legal Recognition of Sex in Documents and Government Records – Concluding Paper on the Sex and Gender Diversity Project (Report, March 2009)
Law Reform Commission of Western Australia, Review of Western Australian Legislation in Relation to the Recognition of a Person’s Sex, Change of Sex or Intersex Status (Project 108, Discussion Paper 2018)
McKeown, Deirdre, A Chronology of Same-sex Marriage Bills Introduced into the Federal Parliament: A Quick Guide (Research Paper Series, 2016-17, February 2018)
Queensland Government, Registering Life events: Recognising Sex and Gender Diversity and Same-sex Families: Review of the Births, Deaths and Marriages Registration Act 2003 (Qld) (Discussion Paper 1, April 2018)
Robinson, Shirleene and Alex Greenwich, Yes Yes Yes: Australia’s Journey to Marriage Equality (NewSouth Books, 2018)
Sharpe, Alex, Sexual Intimacy and Gender Identity 'Fraud': Reframing the Legal & Ethical Debate (Routledge, 2018)
Sharpe, Alex, ‘Endless sex: The Gender Recognition Act and the Persistence of a Legal Category’ in Hale, B, Monk, D, Cooke, E, and Pearl, D (eds) The Family, Law and Society: Cases and Materials (Oxford University Press, 6th ed, 2008)
South Australian Law Reform Institute, Audit Report: Discrimination on the Grounds of Sexual Orientation, Gender, Gender Identity and Intersex Status in South Australian Legislation (Report, September 2015)
South Australian Law Reform Institute, Legal Recognition of Sex and Gender in South Australia (Report, February 2016)
Vade, Dylan, ‘Expanding Gender and Expanding the Law: Towards a Social and Legal Conceptualization of Gender that is More Inclusive of Transgender People’ (2005) 11 Michigan Journal of Gender & Law 253
Wenstrom, K ‘“What the Birth Certificate Shows”: An Argument to Remove Surgical Requirements from Birth Certificate Amendment Policies’ (2008) 17 Law & Sex 131
Victorian Law Reform Commission, Birth Registration and Birth Certificates (Report, 2013)
Winter, Sarah, ‘Are Human Rights Capable of Liberation? The Case of Sex and Gender Diversity’ (2009) 15(1) Australian Journal of Human Rights 151
B Cases
AB v State of Western Australia; AH v State of Western Australia (2011) 244 CLR 390
Kevin v Attorney-General (Commonwealth) (2001) 165 FLR 404
NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490
Re Alex (2004) 31 FamLR 503
C Legislation
Births, Deaths and Marriages Registration Act 1996 (SA)
Births, Deaths and Marriages Registration Regulations 2011 (SA)
Births, Deaths and Marriages Registration (Gender Identity) Amendment Bill 2016 (SA)
Births, Deaths and Marriages Registration Amendment Bill 2019
Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 (Tas)
Sexual Reassignment Act 1988 (SA)
Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth)
Transgender (Anti-Discrimination and Other Acts) Amendment Act 1996 (NSW)
C Other
ABC TV, ‘Transgender Agenda’, Media Watch 19 August 2019 <https://www.abc.net.au/mediawatch/episodes/trans/11427782>
Australian Government Department of Foreign Affairs and Trade, ‘Sex and Gender Diverse Passport Applicants: Revised Policy’ Australian Passport Office (Web Page) <https://www.passports.gov.au/passports-explained/how-apply/eligibility-citizenship-and-identity/sex-and-gender-diverse-passport>
Kelly, F and Hannah Robert, ‘Explainer: Why Removing Sex from Birth Certificates Matters to Gender Diverse People’ The Conversation (online, 25 October 2018) <https://theconversation.com/explainer-why-removing-sex-from-birth-certificates-matters-to-gender-diverse-people-105571>
Lawford-Smith, Holly, ‘Talking Past Each Other about Trans/gender’ Medium (online, 16 June 2019) <https://medium.com/@aytchellis/talking-past-each-other-about-trans-gender-1da8e058caf8>
Lawford Smith, Holly, ‘Misgivings about Racial and Religious Tolerance Amendment Bill’ The Age (online, 21 September 2019) <https://www.theage.com.au/national/victoria/misgivings-about-racial-and-religious-tolerance-amendment-bill-20190919-p52syb.html>
Taylor, Josh, ‘How Children Became the Target in a Rightwing Culture War over gGnder’ The Guardian Online (online, 25 Aug 2019) <https://www.theguardian.com/society/2019/aug/24/how-children-became-the-target-in-a-rightwing-culture-war-over-gender?CMP=share_btn_link>
‘Transgender Agenda’ Media Watch (ABC TV, 19 August 2019)
Victoria, Parliamentary Debates, Legislative Council, Thursday 19 August 2019 (Jenny Mikakos, Minister for Health, Minister for Ambulance Services)
Westenberg, Joan, ‘New birth certificate laws spark anti-trans campaign ‘Saturday Paper (online, 17-23 August) <https://www.thesaturdaypaper.com.au/news/politics/2019/08/17/new-birth-certificate-laws-spark-anti-trans-campaign/15659640008617>
Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (International Guidelines, March 2007)
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