Birth certificates: reforms for the basics of life

By Sally Goldner
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May S Young/flickr

Imagine wanting to open a bank account with the required 100 points and being told you’re a criminal. Imagine you’re a highly skilled and enthusiastic young person wanting a holiday job but you get knocked back for reasons that are irrelevant to your skills and attitude. Imagine having to constantly disclose irrelevant personal information at the last moment before starting a new job. Most of all imagine having your loving relationship ripped apart against your wishes because of paperwork and regulations.

These scenarios may sound, to a large number of people, like scenarios that could never happen. Sadly, for many trans and gender diverse (TGD) Victorians they do happen – time and time again – simply because Victorian birth certificate laws are less than fully inclusive and respectful for all Victorians.

Proposals for law reform currently before the Victorian Parliament would lead to equality for all Victorians, in the form of the Births, Deaths and Marriages Registration Amendment Bill 2016. In essence the Bill would:

  • End the need for costly, sometimes unwanted and often unachievable surgeries to change the sex marker on a birth certificate;
  • Protect rights of TGD minors via allowing changes with parental/guardian approval;
  • Reflect the reality that has always been the case that gender is more than black or white by allowing more options;
  • End the situation of “forced divorce”; and
  • Create a simple, fair and equitable process for changing the certificate.

Laws in seven of Australia’s eight states and territories, including Victoria, currently stipulate having surgery as the requirement to change the sex marker for TGD people. The proposed changes in Victoria to remove the need for surgery before changing the sex marker will follow the great 2014 lead of the ACT (and numerous countries including Ireland, Spain and Argentina).

For many TGD people, surgery is not possible due to concurrent medical situations; plus the out-of-pocket cost conservatively adds up to $15,000 for trans women, and up to $100,000 for trans men. Also, many TGD people can live as their innate sense of self without surgery – people obviously have a sense of their true self prior to any surgeries (or hormonal treatments). This change would easily resolve the 100 points issue.

Currently only the ACT allows changes for minors (with parental/guardian approval). Having better laws therefore has practical benefits for all including both TGD people and also employers who have less to distract them from hiring an equally good employee.

Simplicity, fairness and other precedents require a better solution than requiring a doctor to certify a person’s gender.

This can also affect adults as well. Only last month, a TGD friend who is a carer were told they were eligible for a carer’s allowance but needed a Working with Children Check. They were told to access an online site to get the check and would be registered within an hour. Sounds good… except the person’s various ID documents didn’t all match up with regards to their gender so they had to do a manual check … which takes 15 days. Imagine if this was an employment role in a tight job market. Instant disadvantage simply for being TGD, a good employee misses out on a job and an employer misses out on their skills.

It is also worth noting these issue create extra stress for parents of TGD minors who, while increasingly supportive of their child’s innate needs, face a heavy enough load as it is. As someone who co-facilitates a group for family members, I have heard many recount the load they face. Being able to have their child with all documentation that matches the child’s true sense of self would lighten the parents load too.

A critical aspect of the Victorian reforms is the reality of achieving more than just male or female as options. As per two Australian research pieces, From Blues to Rainbows and the First National Trans Mental Health Study, a third of TGD people identify as other than male or female. Inclusion of more than two options (and the right not to specify) simply includes 100 per cent of Victorians – the highest-quality outcome.

Another aspect of the Victorian Bill is that it will end the unfair scenario of “forced divorce”. This occurs when two people marry, one with male, one with female on their birth certificate at the time of the marriage, but later, one partner realises their need to affirm their true self – and the other partner remains by their side. Mostly, the TGD person is denied the right to change their birth certificate – until the couple divorces.

The “reason” given by Births, Deaths and Marriages for the forced divorce is that “we can’t create (sic) a same-sex marriage because federal law overrides state law.” While this interpretation is the subject of technical legal debate – and changing the federal Marriage Act would end this horrible “Hobson’s Choice” all around Australia – changes at state and territory level (again already in place in the ACT) would be an interim solution. Only recently I was contacted by a couple in this dilemma – they were totally torn as to what to do even though they loved each other. Should they separate or risk the TGD person facing ongoing distress due to inaccurate documentation? An unanswerable question – let’s question the question and remove the problem once and for all.

With regards to the process for changing the sex marker on a birth certificate, simplicity, fairness and other precedents require a better solution than requiring a doctor to certify a person’s gender. TGD people and families believe a process akin to your passport application would be beneficial, whereby an adult who has known the TGD person for a certain length of time could simply sign a declaration affirming the TGD person’s gender.

The TGD community believe affirmation by a health professional implies gender identity is a “problem” and needs someone else to “approve” us – a highly discriminatory attitude, when people who are not TGD (referred to as cisgender) don’t need to get such “approval” is a double standard in itself.

It’s all about basics such as a fair go, equality, dignity, privacy and respect… things to which we are all entitled.

The only other possibility is that 5,000,000 Victorians (or 23,000,000 Australians) need a doctor’s appointment to affirm their gender identity…and, of course, that’s not a possibility.  The updated approach in Victoria will be far more time and cost effective for everyone than having a doctor’s or psych appointment to simply print off a standard letter.

There has been some wild speculation about “profound implications” of the proposed reforms. I point out as strongly as possible there have been claims the sky will fall every time any laws supporting TGD people have been proposed in Australia, whether the laws relate to birth certificates or anti-discrimination protections. What has happened every time: nothing … nothing, that is to say apart from the sky is still there and we move closer to having the better outcome for more people implementing a basic human right, being the right to accurate documentation.

The Victorian proposals have passed the Legislative Assembly and are currently before the Legislative Council. Please consider supporting the letter at http://www.vicbirthcerts.com/. It’s all about basics such as a fair go, equality, dignity, privacy and respect … things to which we are all entitled. We need these changes, dare I say, right now. We’d value your support in achieving them.

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  • JK

    The article picture says it all.

    We can all see that they are roses, but, we all know that they are contrived and man made variations on nature.

    That’s not to say they aren’t pretty and/or to be valued.

    But do we redefine the whole genus for a few variations? And how do we feel about things being so ill defined that today I am a rose, but, tomorrow I may be a tulip?

    As humans we love to classify things scientifically and by legal measures, but we also make decisions on a daily basis based on experience and certain accepted facts.

    I’m pretty sure the 23 million might get irritated ever time they apply for a licence and have their eyes checked or get an employment medical check, but, at the end of the day, if you want to be part of society we have to agree to some ground rules.