Page 1012 - Week 04 - Tuesday, 19 March 2013
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video
the outcome sought in this recommendation is more effectively achieved through an incremental approach, which is outlined in detail in the government’s response.
The government is also not supporting recommendation 28(ii) relating to immunity from liability where, in good faith, a person acting on behalf of a public authority incorrectly records a person’s sex. The government notes that the risk of incorrectly recording a person’s sex and gender identity is largely mitigated through ensuring robust data collection and maintenance systems and procedures.
Central to legal recognition of a person’s sex is the criterion for making a change in a person’s sex as registered on their birth certificate. To continue to require an individual to undergo invasive surgery in order to change their sex on the most primary of legal documents is no longer acceptable in a civil society that values human rights.
I referred earlier to the 2011 High Court decision, AB v Western Australia, which considered the application of criteria for approving registration of a change of sex. The court found that “gender characteristics” under the Western Australian Gender Reassignment Act 2000 pertained to the physical characteristics by which a person is identified as male or female. It concluded that gender characteristics are confined to external physical features that are socially recognisable.
Within the context of the Western Australian act, the court stated at paragraph 35:
The question whether a person is identified as male or female, by reference to the person’s physical characteristics, is intended by the act to be largely one of social recognition. It is not intended to require an evaluation of how much of a person’s body remains male or female.
The court held that the act directs the decision maker to:
… the question of how other members of society would perceive the person, in their day-to-day lives. Such a recognition does not require knowledge of a person’s remnant sexual organs.
Currently, a person in the ACT may only change their registered sex after sexual reassignment surgery. This surgery is invasive and expensive, and may not be available or desirable for all people seeking to change their sex.
The government responded to the report with significant consideration of the High Court judgement and the implications of this on the legislated requirement of sexual reassignment surgery in the territory. The government therefore supports the abolition of sexual reassignment surgery as a requirement for eligibility to change sex on a birth certificate, and will develop new criteria that will be consistent with the High Court’s decision in AB v Western Australia.
The government also supports the expansion of options for notification of the sex of a child born in the ACT to include the categories “female”, “male”, “intersex”, “to be advised” or “indeterminate”. Consistent with current practice, the government
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video