'Sex' in Australian Law Currently

‘Sex’ is not defined in Australian law. So although it is a protected attribute in both the Victorian Equal Opportunity Act (2010) and the Australian Sex Discrimination Act (1984), it’s unclear whether that protection is of biological sex, ‘altered’ sex (e.g. as a result of surgical or medical interventions), or official record of sex (e.g. in the birth register).

There are three weak reasons to suspect it’s not biological sex:

  • previous case law, which upheld transsexual marriages prior to marriage equality;

  • that gender identity is mentioned as a ground for lawful exclusion in addition to sex in competitive sport (VIC EOA);

  • and that in the explanatory memoranda to the Sex Discrimination Amendment (2013) a reference is made to ‘birth sex’ (not just ‘sex’) when biological sex is meant.

There has not been case law testing whether gender identity alone suffices to legal sex.

The Births, Deaths and Marriages Registration Amendment Act 2019

The BDMRA (2019) amends to the BDMRA (1996).

Prior to the amendment, to change one’s sex in the birth register, Victorians had to undergo 'sex affirmation surgery’, which is a ‘surgical procedure involving the alteration of a person’s reproductive organs carried out for the purpose of assisting the person to be considered a member of the opposite sex’.

The amendment replaces this requirement with an ‘acknowledgement of sex application’, in which the applicant makes a statutory declaration to the effect that they believe their sex to be as nominated. Applications must include a supporting statement from a second person, and cannot be made more than once a year.

The act includes a few minor gate-keeping requirements:

  • Firstly is that applications may not be sought for ‘fraudulent or other improper purposes’. However there is no mention or logical method by which fraud could be established.

  • The second is that that detainees, prisoners, prisoners on parole, offenders, and registrable offenders all may not make applications without approval from further (specified) officials. However we believe we need social policy consultation on the issue, in particular, of male sex offenders wanting to change their record of sex to female.

  • Thirdly, parents, with consent of their child, can change the sex of their child on their birth certificate. This raises ethical questions about the capacity of children to be able to give informed consent to their parent to change their sex on a record of birth.

See our Summary of the Bill for more details.

Further Resources

The Law

Victorian Equal Opportunity Act

Grenfell & Hewitt (2012) summary of relevant case law:

Australian Sex Discrimination Act (1984) & Sex Discrimination Amendment (2013)

"Summary of sex & gender in Australian law" (Holly Lawford-Smith)

Proposed Changes to the Amendment Bill

The Births, Deaths and Marriages Registration Amendment Bill 2019

"Let’s talk about sex (-based rights for Australians )(Holly Lawford-Smith)