SUMMARY OF THE BILL

Below is a complete summary of the Victorian legislation:

• The legislation allows  persons to change the sex recorded on their birth certificate as often as once a year, on the basis of a statutory declaration, declaring their ‘sex’ to be as nominated; with some kind of supporting statement from another person (see particular requirements below for adults, children and restricted persons). 

• The Registrar must be satisfied that the application is not fraudulent but the Act provides no guidance on this. 

• The Registrar can ask for other documents in determining a person’s application but the Act provides no guidance on this. 

• There are special requirements for the following classes of people: children under the age of 16; children aged 16 or 17; prisoners; persons on the serious offenders register; persons on the sex offenders register; persons in juvenile detention.

• There are also provisions for persons who are not born in Victoria but who are resident here to obtain documentation stating that they have changed their legal sex.  

• You can change your legal sex to any ‘sex’ descriptor, except for prohibited sex descriptors which are descriptors which are 

  • obscene or offensive

  • Unable to be practicably established by repute or usage because they:

    • Are too long or

    • A symbol without phonetic significance (ie. not letters)

    • Who knows what ‘established by repute or usage’ means - Do I need to prove that my own social group knows me and refers to me as snail in order for the Registrar to use this as my sex descriptor? Or does ‘repute or usage’ refer to common acceptance in wider society of those terms being sex descriptors?

Adults

Section  30A of the Act 

• Applies to persons whose birth is registered in Victoria

• An adult will need a supporting statutory declaration from an adult who has known them 12 months. 

• There are no other requirements for an ‘ordinary’ adult in order to change their ‘legal sex’ - no requirements for medical or surgical interventions, no need for supporting documentation from a medically qualified person, no requirement to live as one’s ‘chosen gender’ for any period of time. All you need to do is sign a stat dec (and get another person to do that).

Children

Section  30B of the Act 

• Applies to children whose birth is registered in Victoria

• Their application must be supported by their parents and a ‘relevant person’.

• A relevant person is a doctor, registered health practitioner, or a person who is a member of a ‘prescribed class of persons.’ The ‘prescribed class’ can be stipulated by the ‘Governor in Council’ - that is, by cabinet.

• The child must consent.

• If there are two parents alive and named on the birth certificate and only one parent supports the change, then the child and that parent can apply to the County Court for permission to change the child’s legal sex.

• If the child is under 16, then a ‘relevant person’ must state that they believe that the child has the capacity to consent to the change in legal sex.

• If the child is 16 or 17, then the child is presumed to have consent.

Restricted Persons: Serious Offenders, Sex Offenders, Youth Detainees, Parolees 

• These persons cannot apply to the Registrar to have their legal sex changed without written approval of the relevant authority (respectively: The Post-Sentence Authority; the Chief Commissioner of Police; The Secretary [of DHHS? - whoever is Secretary under the Children, Youth and Families Act 2005]; the Adult Parole Board. 

• The relevant authority must not approve the application if the person’s change of legal sex would be reasonably likely:

  • To be regarded as offensive by a victim of crime or an appreciable sector of community

  • To evade or hinder their supervision; to frustrate the intention of the relevant Act (Sex Offenders Act);  be used to evade or hinder their supervision [Serious Offenders; Parolees]; or to be a threat to the security of a youth centre or jeopardise the safe custody or welfare of other detainees or be used to futher an unlawful activity of purpose. 

• The application must still be approved by the Registrar.

• Persons born interstate: s30E, s30EA

The Registrar can issue a document acknowledging a person’s name and chosen sex descriptor to persons whose birth is registered in a place other than Victoria.

The person must have lived in Victoria for the last 12 months.

Other requirements as above. 

Changes to the birth certificate and Register

• The Registrar must issue a new birth certificate with the new legal sex and the new birth certificate must not refer to the fact of a change. (section 30D)

• The current law requires that the Registrar keep a register of changes to legal sexes. The Bill does not change this. 

• The Bill does not state what happens to original birth certificates - are they disposed of? There is a Register which records that X person changed their legal sex from ‘Y’ to ‘Z.’ 

• The Registrar must disclose all alterations of a person’s sex to the Justice Secretary if the Registrar is notified of the details of a person by the Secretary:

  • The Secretary must do this for all prisoners; the Act does not state when the Secretary must do this but presumably upon their being taken into custody (Corrections Act 1986, s47M)

  • The Secretary must do this for all prisoners on parole (Corrections Act 1986, s79H)

  • The Secretary must do this for all persons subject to supervision orders, interim supervision orders, detention order or interim detention order (Serious Offenders Act 2018, s 264)

• The policy of the Registry is to allow a person to change their name only three times in their life. The legal basis for this policy is unclear - it does not appear in the Births, Deaths and Marriages Act or Regulations. There is no limit to how many times a person can change their sex in this Bill. 

Further Resources

The debate over the Bill in the Legislative Assembly in 2016: https://www.parliament.vic.gov.au/images/stories/daily-hansard/Assembly_2016/Assembly_Daily_Extract_Tuesday_13_September_2016_from_Book_12.pdf

Concerns of the Scrutiny of Acts and Regulations Committee in 2016 and the Attorney-General’s response: https://parliament.vic.gov.au/images/stories/committees/sarc/database/Alert_Digest_No_13_of_2016.pdf

The Equal Opportunity Act: http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/eoa2010250/ 

The Victorian Charter of Human Rights: https://www.humanrightscommission.vic.gov.au/index.php/the-charter