Legal Toolkit – Future guidelines on the recognition of sex and gender: how these will affect you

Foreword

The Australian Government Guidelines on the Recognition of Sex and Gender (the Guidelines) standardise the evidence required for a person to establish or change their sex or gender in personal records.

The Guidelines commenced on 1 July 2013 and are applicable to all Australian Government departments and agencies. The relevant changes to personal records and data collection procedures must be implemented by all government departments and agencies on or before 1 July 2016.

In 2009, the Australia Human Rights Commission released Sex Files: the legal recognition of sex in documents and government records. The Commission recommended the Australian Government consider development of national guidelines concerning the sex and gender information from individuals.

The Guidelines are an express recognition of the Australian Government’s commitment to ensuring that personal records reflect individual’s identity within the community as a gender other than the sex they were assigned at birth or as an indeterminate sex and/or gender.

This brochure applies to adults. Any person under 18 years of age wishing to amend any documents should seek legal advice.

Practical effect of the guidelines: sex and gender classification

Where sex and/or gender information is collected and recorded in a personal record, individuals will now have the option to select M (male), F (female) or X (indeterminate/intersex/unspecified).

Commencement and implementation

These Guidelines commenced on 1 July 2013. All Australian Government departments and agencies will progressively align their existing and future business practices with these guidelines by 1 July 2016. The Guidelines are not specifically implemented into legislation and may be rescinded at any time.

Changes to standard of proof

Sex reassignment surgery and/or hormone therapy are not pre-requisites for the recognition of a change of gender in Australian Government records. Where a person request amendments to sex and/or gender information or where it is necessary to verify for a service or entitlement, the Australian government will recognise any one of the following as sufficient:

  • Statement from a Registered Medical Practitioner or a Registered Psychologist;
  • Valid Australian Government travel document, such as a passport; or
  • An amended State or Territory birth certificate OR a State or Territory Recognition certificate showing that a Registrar of Births Deaths and Marriages has an accepted a change in sex.

Where there is a conflict in official documents, the Australian Government passport or the latest dated document will take precedence for establishing a person’s gender. While it is encouraged to ensure all documents reflect your preferred gender, it is recognised that there may be legitimate reasons for holding conflicting documents.

Privacy and retaining records

To protect identity security, only one record should be made or maintained for an individual, regardless of a change in gender or other change in personal identity (i.e. name).

The individual’s history or changes of sex, gender or name is subject to appropriate security controls and is recorded and accessed only when it is strictly relevant to a decision being made.

Want more information?

A full copy of the guidelines and further understanding of the issues can be obtained at the Attorney General’s Department website. Feedback on these guidelines can be emailed to the Attorney- General’s Department.

Download

Download this legal toolkit: Download (PDF, 595.3 KB)

Need further help?

Australian Human Rights Commission
02 9284 9600

LGBTI Legal Service
mail@lgbtilegalservice.org

See accompanying report:
Trans* and Legal Documents by the Queensland University of Technology and the LGBTI Legal Service.

Disclaimer

This legal toolkit is not legal advice. Information contained within this document is current as at 1 October 2014.