South Australia should have a system that allows adults to change their registered sex or gender by a simple application to the Office of Births, Deaths and Marriages, according to law experts.
The recommendation – including the need for safeguards to protect the integrity of the Births, Deaths and Marriages Register – is among the findings of a new report on the legal recognition of sex and gender, which was handed to the State Government by the independent South Australian Law Reform Institute, based at the University of Adelaide, on 10 February 2016.
“This report is the latest in a series that identifies sensible options to reform South Australian laws that currently discriminate on the basis of sexual orientation or gender identity,” says lead author Sarah Moulds, researcher with the SA Law Reform Institute.
“Most South Australians never need to think about the way their sex and gender identity is reflected on the Births, Deaths and Marriages Register. But the laws as they currently stand prevent people from having a sex or gender other than ‘male’ or ‘female’ recorded on the Register, and make it exceedingly difficult for people to change their registered sex or gender.
“This means that for some members of our community, the law in South Australia forces people into binary gender categories and refuses to recognise their authentic gender identity. From our consultations we learned that this can have serious flow-on effects for people’s health and well-being, particularly for gender diverse people and those born with intersex variants,” Ms Moulds says.
The report recommends repealing the Sexual Reassignment Act 1988 (SA) and including a process for changing a person’s registered sex and/or gender in the Births Deaths and Marriages Registration Act 1996 (SA).
“For adults, this would be a direct application process based on the existing change of name provisions, and would allow for a person’s gender or sex to be described as ‘male’, ‘female’, or ‘other’, with the ‘other’ to be specified by the individual. One example might be a person identifying as ‘trans’,” Ms Moulds says.
“This third option, based on the principle of self-identification, would align with relevant human rights standards and be consistent with the Australian Bureau of Statistics’ proposed new Sex and Gender Identity Standard. It would also bring South Australian laws into line with policies for changing sex or gender on Australian passports.”
Ms Moulds says the changes would include a range of safeguards. “For example, the Births, Deaths and Marriages Registrar would be given the discretion to request further information for the purposes of establishing identity and ruling out fraud. Existing protections against fraud or frivolity that currently apply to name change applications should also be in force for sex and gender registration,” she says.
“Implemented carefully, these changes would preserve the integrity of the Register, while moving it forward to reflect the modern realities of our community. The changes would also mean that for the first time, gender diverse South Australians would be able to have their authentic gender identity legally registered.”
The SA Law Reform Institute is conducting ongoing research into laws that discriminate on the basis of sex and gender. Further information, including a copy of this Report, can be found on the SALRI website.