What's the problem?
Most state and territory laws impose unnecessary legal requirements around surgery and medical evidence which make it difficult for the majority of trans and gender diverse people to access an accurate birth certificate, for no good reason.
International human rights law says that our laws should respect self-identification. This means that trans and gender diverse people should have access to basic ID that is true to their gender identity - regardless of what medical treatment they have (or have not) received.
2. Gender diversity
Some people are neither or both male or female. Some Australian laws and policies already allow people to be recognised as 'X' or 'non-binary'. But most birth certificate laws are too narrow and don't allow gender diverse people to use the terms that best describe their gender identity on their own ID.
3. Forced divorce
Trans and gender diverse people should be able to remain married to the person they love when they change their gender on their birth certificate – not be forced to divorce because of outdated laws. Many state laws force trans people to make a cruel choice between being recognised as their true self or staying married to the person they love.
Our communities, families and friends all supports marriage equality, and it’s time our laws did as too. This small but significant change will mean transgender people can be free to be who they are, while maintaining their commitment to the person they fell in love with.
What's happening now?
As part of last year's marriage equality bill, all states and territories have until 9 December 2018 to end forced divorce or risk facing discrimination complaints under federal laws.
Summary of birth certificate laws across Australia
Following reforms in 2014, the ACT birth certificate laws allow all people, including young people, to change their legal gender if they have a letter from their doctor (including a GP or counselling psychologist) and provide for male, female and indeterminate/intersex/unspecified categories. The laws have been operating successfully for a number of years.
New South Wales
Following the 2017 amendments to the Marriage Act, the NSW Government introduced legislation that removed the requirement to be unmarried from NSW birth certificate laws and also updated a number of statutes to use language that was inclusive of LGBTI people and their relationships. The legislation was passed on 6 June 2018. During the debates, Alex Greenwhich MP and Jenny Leong MP committed to tabling a bill, and NSW's Attorney-General Mark Speakman MP stated that he is happy to discuss and consider broader reforms to birth certificate laws on the legal recognition of sex and gender. Following the ruling by the High Court in the case of NSW Registrar of Births, Deaths and Marriages v Norrie  HCA 11 (2 April 2014), the NSW Registry of Births Deaths and Marriages issues birth certificates for male, female and non-specific categories.
The NT Government is working towards reform of its birth certificate laws, which require a person to be unmarried, over 18 and have had surgery before they can successfully change their legal gender. The NT Registry of Births Deaths and Marriages already issues certificates for male, female and indeterminate/intersex/unspecified categories.
South Australia reformed its birth certificate laws in 2016 so that change of legal gender is allowed with a doctor’s certificate evidencing clinical treatment. Under regulations made in 2017, the available categories are male, female, non-binary or indeterminate/intersex/unspecified. Anyone under 18 years of age must still apply to a Court to have their change of gender approved.
Tasmanian laws currently require people to be unmarried, over 18 and have had surgery before they can change their legal gender. Tasmania's Attorney-General Elise Archer MP stated that the Department of Justice is reviewing the Births, Deaths and Marriages Act in response to calls from the transgender advocates about changing the laws in Tasmania. Opposition spokesperson David O'Byrne said Labor would support the change, and Premier Will Hodgman stated that the Government is awaiting a response from the Department of Justice.
The Queensland Government has removed the unmarried requirement from their birth certificate laws and commenced an inquiry into Registering life events: Recognising sex and gender diversity and same-sex families, as part of a broader review of Queensland's legal registration scheme. Submissions to the review closed in April 2018, and the report has not yet been publicly released - check the Queensland Department of Justice and Attorney-General website for updates.
The Victorian Government introduced a Bill in 2016 that would have allowed trans and gender diverse people to change their gender with a letter of support from someone known to them for two years or more (similar to a passport application) and allowed young people to change their gender if a doctor certified that they are mature enough to make the decision. The Bill proposed to allow categories other than male and female. Unfortunately, the Bill failed to pass the parliament by one vote. Following the amendments to the Marriage Act in 2017, legislation was passed in March this year to remove the requirement for people to divorce but the standing rules of parliament prevented a substantially similar bill from being introduced before the election. The Victorian election is due to take place on 24 November 2018 and advocates will be pressing for commitments to introduce legislation in the next term of parliament.
Currently, adults and children must apply to a ‘Gender Reassignment Board’ for a gender recognition certificate and the Board must be satisfied the person has the ‘gender characteristics’ of the gender and has undertaken a reassignment procedure. In the case of AB v Western Australia (2001) 244 CLR 390, the High Court confirmed that genital surgery is not required under WA law (in that case two trans men had undertaken bilateral mastectomies and hormone treatment). Only male and female categories are available. The WA Government has committed to removing the requirement for forced divorce, and has commissioned the WA Law Reform Commission to undertake an inquiry into its gender reassignment legislation. The discussion paper for the inquiry has not yet been released - check the Law Reform Commission of WA website for updates.