Representatives from the LGBTI Legal Service were delighted to be in attendance in as the Queensland Government introduced proposed reforms to the Births, Deaths and Marriages Act in December 2022. The Births, Deaths and Marriages Registration Bill 2022 (Bill), if passed, will greatly improve recognition of LGBTI people and families in Queensland. Notably, trans and gender diverse people would be able to register a change in sex without having to undergo ‘sexual reassignment surgery’, and LGBTI parents would be properly identified and recognised on their children’s birth certificates. The LGBTI Legal Service is proud to have contributed to this important and urgent reform for our community, and to have been present for the exciting and emotional first reading of the Bill.
What changes are being proposed?
Since the Births Deaths and Marriages Laws came into effect almost 20 years ago, community attitudes towards LGBTI people have evolved and our rights have improved alongside these changing views. The proposed reforms would bring Queensland in alignment with community expectations and reflect the changes that have been made in most other States and Territories across Australia. Two of the key objectives of the Bill are to strengthen the legal recognition of trans and gender diverse people and to better recognise contemporary family and parenting structures.
Legal Recognition of Trans and Gender Diverse People
Queensland identification documents currently only allow a person to identify as male or female, and Queenslanders may only apply to change their sex on their birth registration after they have undergone ‘sexual reassignment surgery’ to alter their reproductive organs or eliminate ‘ambiguities’ about the sex of a person. The proposed reforms allow recognition of identities other than male or female, and remove the requirement for surgery.
It is worth noting that the Bill does not make a distinction between a person’s sex and their gender. Although we as a community recognise that there is a distinction between sex and gender, most legislation across Queensland only refers to sex, not gender. These reforms have been made without making a distinction between gender and sex to ensure that people are treated in the way they identify under all legislation.
The Bill proposes that identities beyond the binary can be listed on a person’s identification documents. It allows people to provide their own descriptor of their sex, as long as the descriptor is not absurd, obscene or offensive. This strikes the balance between providing gender diverse people the flexibility to self-identify whilst preventing abuse of the ability to change a person’s sex descriptor.
The current process for a person to change their identifier relies on medical intervention, requiring a person to undergo ‘sexual reassignment surgery’. These surgeries are serious, costly and often inaccessible based on the limited number of specialist surgeons and varying requirements imposed by surgeons. Further, not all trans and gender diverse people will want to undergo these surgeries, whether based on what is affirming to them, or the barriers to accessing these medical procedures. The proposed reforms remove these requirements, allowing trans and gender diverse people to change their sex by application.
Pathways to Changing your Sex Marker
People over the age of 16 can apply to the registrar to alter their recorded sex. The application must include a statutory declaration by the applicant, affirming that they identify as the sex listed, and a ‘supporting statement’ from another person who is over 18 years old and has known the person for at least 12 months. The ‘supporting statement’ must outline the person’s support for the application and belief that the applicant makes the application in good faith. A person can also apply to change their name at the same time, unless they are born outside of Queensland. In that case, a separate application is required to be made to the State/Territory they were born in.
For people under 16, there are two proposed pathways to recording a change in sex: an administrative application to the registrar or by application to the Childrens Court. Whether a person can apply to the registrar or whether they must apply to the Childrens Court will depend on whether they have support from their parents or people with parental responsibility. A person is considered to have parental responsibility if they are a guardian under a child protection order, appointed by a will or they have parental responsibility under a parenting order.
The administrative pathway can be used where consent is provided by both of the child’s parents or people who share parental responsibility for the child. Applications should generally be made jointly by both parents, but one parent can apply where they are the sole person listed on the births register, one parent is deceased or there is a parental order that one person has parental responsibility. Additionally, one parent may make an administrative application, despite the lack of consent from another parent, where the Court provides a dispensation order. A dispensation order may be made in limited circumstances, for example, where one parent or person with parental responsibility is absent and cannot be located.
An application must be supported by a ‘developmentally informed practitioner’ that has a professional relationship with the child. A ‘developmentally informed practitioner’ includes a broad range of people including medical practitioners, school guidance officers, social workers and psychologists. The nominated practitioner must provide an assessment that affirms their support for the application and that the child understand the consequences of registering a change to their sex marker. An assessment by a developmentally informed practitioner must be provided in both the administrative or court pathways.
The court pathway can be used where one parent or person with parental responsibility does not consent, or where a child between 12 and 16 years old who does not have a supportive parent makes an application on their own behalf. In these cases, the Childrens Court can make an order to change a child’s gender marker where it is in their best interests.
A person who has changed their gender will be treated for the purposes of that law in accordance with that sex. However, there are laws that refer to sex when their purpose is to refer to someone’s anatomical capacity. The changes to the Act mean that a trans or gender diverse person will be captured if they retain the anatomical characteristics referred to.
Parents and Family Structures
Currently, only one mother and one father can be registered on a child’s birth certificate. Under the proposed reforms, two people can be registered on the child’s birth certificate, whether as mothers, fathers or parents, in any combination. These changes will ensure that both LGBTI parents are recognised on their children’s birth certificates. The Bill also adopts the term ‘birth parent’ to recognise the person who gave birth to the child while removing the restriction that requires the person who gave birth to be registered as the mother. This means that where trans men or non-binary people give birth to their child, they are not required to be recorded as the child’s mother, as is the case currently.[1]
Anti-Discrimination
The proposed reforms update the definition of gender identity to make it more inclusive, protecting people from discrimination based on their internal experience of gender and gender expression, regardless of their sex assigned at birth. Additionally, the Bill creates a new protected attribute of ‘sex characteristics’ to provide better protections for intersex people. The changes also mean that it will no longer be lawful to discriminate against a person in the context of working with children on the basis of their gender identity or lawful sexual activity.
What’s next?
The Bill was introduced to Parliament in December 2022. The Bill is also considered by the Legal Affairs and Safety Committee, and its report will be tabled on 24 February 2023. After the Committee’s report is tabled, the Bill and Report will be considered by Parliament in a Second Reading. The Legislative Assembly will then debate the Bill and make amendments as required. Following this process, the Bill will be read for a third and final time, and the Bill will then hopefully receive Royal Assent before becoming law. Once passed, the Bill is expected to come into effect from 2024.
Throughout this process, there will likely be increased media attention on the LGBTI Community. We hope that Parliament and the community at large respond positively to these changes. However, as we saw with marriage equality postal survey in 2017, reforms such as these can also lead to opposition from some parts of the community. We encourage you to lean on your support networks and the LGBTI Community throughout Queensland. You can contact us for any legal assistance, or if you require counselling, support or resources, contact QLife on 1800 184 527 or Lifeline on 13 11 14.
Further Reform
Although the proposed reforms will improve the lives of LGBTI people in Queensland, there are some limitations that may leave members of our community behind. Particularly, there are barriers to people who want to alter their sex, but are imprisoned or on parole. Where a person is in prison or on parole, consent is required from the Chief Executive of Corrective Services prior to a person changing their sex. We hope to see further amendments that allow people to be legally recognised as they identify regardless of their circumstances.
[1] Coonan v Registrar of Births, Deaths and Marriages [2020] QCAT 434