Question of Legality

If a person born in the UK has been granted both a Gender Recognition Certificate (GRC) and an amended Birth Certificate (BC) in their preferred gender, but retain genitalia of the sex recorded at birth, how or what would be their legal status in Queensland?

Since the passing into law of the contentious UK Gender Recognition Act 2004 (GRA), Transsexuals (born in the UK) have been allowed to apply for and receive their GRC/BC without having Sex Re-assignment Surgery (SRS).

In Queensland, it is a pre requisite that you must have had SRS to be able to change your BC (for those born in Queensland). We accept this, but now wonder what is the legal status of those born in UK, but now residing in Queensland, who have been legally recognised in UK with-SRS and also without-SRS, in their new gender. The UK law is predicated on “Non Surgery” so allows those who do not wish to have SRS, or those that it would be life threatening to do so, to be able to apply to have their BC amended!

We wonder if those of us who have had SRS and received an amended BC in their preferred gender are now accepted in Queensland, whilst those who have not had SRS, but have an amended BC are not accepted.

Would this then constitute discrimination on the part of the Queensland Government, as the UK law that granted those who have not had SRS the right to an amended BC?

This is of great interest to those of us fortunate enough to have been recognised in UK, but now reside in Queensland. In Australia we are allowed to change some legal paperwork, either before or after SRS. The items after SRS are: Passport, Citizenship Certificate and Health Insurance Commission central records.

However, the UK Gender Recognition Act 2004 (GRA) and the UK Gender Recognition Panel (GRP) does not recognise the authority of these Queensland and Australian Identification Documents, therefore we have to ask the Queensland Government to consider providing a GRC which the UK authorities will find valid. (A Queensland GRC is currently not available.)

After we have been fully recognised and issued with an amended BC by the UK we are also fully recognised by the Pensions Department and the Tax Office in our preferred gender.

I would now ask, considering the apparent conflict between the UK and Australian legislations, what is our true legal status within both Queensland and Australia?

From: Neroli Holmes
Sent: Thursday, April 05, 2007 10:39 AM
To: Kathy Noble
Subject: RE: Question Of Legality

The legal issues you raise are interesting. Unfortunately the ADCQ does not have the role or power under the ADA to provide legal advice to individuals or groups, in the situation you have outlined.

You may want to contact QPILCH (Public Interest Legal Clearing House), the group of public interest lawyers who in some circumstances can provide advice in this type of situation. Their phone number is 30129773.

From: Kathy Noble
Sent: Thursday, April 05, 2007 11:12 AM
To: 'Neroli Holmes'
Subject: RE: Question Of Legality

From: Karen Gurney
Sent: Monday, April 16, 2007 6:29 PM
To: Kathy Noble
Subject: Re: Question Of Legality

Dear Kathy

This is a matter that, in my view, will most likely only be decided after there has been a test case. I can see this occurring in several ways. For example: if the issue of a passport is queried anywhere during an overseas jaunt and especially in places like the US where x-ray scanning is commonplace; or the action of a disgruntled marriage partner contesting the validity of the marriage in one of the States where there is no "domestic partner" legislation to regulate the spoils of a breakdown in a de facto marriage situation.

Firstly, it needs to be remembered that a birth certificate is only prima facie proof of the evidence contained in it. A court of competent jurisdiction is the only real arbiter of the question of sex in a particular case. Currently, the common law requires surgery. In Re Alex, Nicholson CJ as he was then expressed concerns about mandatory surgery. But the "colour" of the Federal courts has changed a lot over the last decade and I very much doubt the present High Court would entertain a non-surgical identity.

As far as your questions are concerned, my personal opinion is that:

1. Because the common law is based on surgical status and is independent of the birth registration record (Re Kevin), a person living in Australia who has undergone surgery but has not obtained a corrected BC is still a woman for most purposes of the law. She would be incarcerated in a prison for convicted females, would be entitled to an age pension if a citizen and she turned age 63 this year, and she would be entitled to marry a man. In Victoria, she would be entitled to a Recognised Details certificate and would also be a woman for all purposes under Victorian statute law as well.

2. In my view, the Australian citizen described in para 1 would also be entitled to a passport as a woman. The problem is how to deal with the current intransigence of DFAT and the Passports Office which refuses to issue a passport otherwise than in the sex on a BC? I still believe that an application to one of the Federal Courts seeking a determination as to sex and an order of mandamus against the Secretary, DFAT is the way to go.

3. Conversely, a person who has not had surgery is not a woman under the common law and is not entitled to a recognition certificate as such under State law. If she holds an overseas birth certificate saying she is a woman, and uses it for example, to enter into a marriage with a man, then a court hearing a future dispute as to validity would almost certainly decide it was not valid. Can you imagine how our present Federal AG might react to the prospect of a person who is legally a man marrying another man? The Commonwealth has already declared it will not recognise a same-sex marriage legally entered into overseas so if the person arrives here already married to a man, that marriage may not be valid in Australia. She could also run into trouble with the Feds in relation to her passport if her sex phenotype became known to them.

4. Although there is an argument that the present situation is discriminatory, it does not appear to constitute unlawful discrimination under the Federal Act. The States are immune from actions for discrimination under their own Acts if they are acting in compliance with another State Act.

Does this help?

Kaz