Transgender matters
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Prior to 2017, the Marriage Act 1961 (Cth) defined marriage as ‘the union of a man and a woman to the exclusion of all others’. However, on 9 December 2017, the Act was updated to allow for marriage equality, and the definition was updated to define marriage as ‘the union of two people to the exclusion of all others, voluntarily entered into for life’, as shown in section 2A of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth).
Australian courts had historically adopted the UK attitude that gender is determined at birth and cannot be altered. In May 2018, the Victorian Parliament passed legislation that meant married transgender people no longer have to divorce to change the sex on their birth certificate. New South Wales has passed similar legislation.
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‘Gender dysphoria’ is a condition where a person’s sense of their own gender contradicts their biological sex. Hormonal treatment for gender dysphoria in young people involves two stages; surgical intervention is the third stage:
stage one treatment: puberty blocking medication (fully reversible);
stage two treatment: cross-sex hormone treatment (partly irreversible);
stage three treatment: surgical treatment, which includes (but is not limited to) chest reconstructive surgery, phalloplasty, hysterectomy, bilateral salpingectomy, creation of the neovagina and vaginoplasty.
In Australia, court approval is not needed to access stage one treatment; parental consent is sufficient.
However, accessing stage two treatment has historically been less straightforward. The courts have classified stage two treatment as a form of special medical procedure that can only be performed on children with court approval.
In March 2021, the Corrections Victoria Commissioner issued the Commissioner’s Requirements for Management of Prisoners who are Trans, Gender Diverse or Intersex. This includes gender-affirming treatments such as reoccurring hormone treatment, counselling, and surgical intervention. However, it has been stated within the management guidelines that it is not necessary to identify all imprisoned people who are trans, gender diverse or intersex, ‘particularly where such identification is unlikely to influence their custodial management and supervision’.
Transgender matters
Chapter: 4.3: Same-sex and de facto couples and families
Contributor: Rebecca Dahl, Partner, Nicholes Family Lawyers
Current as of: 2 September 2024
Law Handbook Page: 253
Next Section: Contacts
