Probably few Tasmanian voters going to the polls on May 1 will be aware that their recently dissolved Parliament was responsible for some of the most radical (and incoherent) legislation in the world concerning gender issues. Remarkably, it was passed from opposition by Labor and Greens MPs in 2019. It was supported in the Legislative Assembly by Speaker Sue Hickey, a member of the Liberal Party at that time, who voted against the position of the Government. The changes were also supported in the Legislative Council by a sufficient number of independents.
The legislation incorporated certain unscientific ideas that have become fashionable amongst gender studies scholars in the United States and elsewhere, without thinking through all the legal consequences. The result is that the Tasmanian statute book now has a serious problem of inconsistency and incoherence when it comes to the meanings given to such basic terms as sex, gender and being male or female. The election of a new Parliament will give an opportunity for the new Parliament to fix the problems and to restore coherence to the law.
The legislation was the Justice and Related Legislation (Marriage and Gender Amendments) Act 2019 . It allows a person 16 years or older to register ‘a gender’ which has the effect of amending the birth register, and for parents to do so for a child under 16. The application must be accompanied by a “gender declaration”. This is a statutory declaration in which the person declares that he or she identifies as being of the gender specified and lives, or seeks to live, as a person of that gender.
The choices of gender identification are not limited to male and female. The registered gender could be an ‘indeterminate gender’; or ‘non-binary’; or ‘a word, or a phrase that is used to indicate a person’s perception that they are neither entirely male nor female. The term used must bear some relationship to the idea that a person may consider themselves to be something other than male or female. The Registrar has a discretion to decline to record a term proposed. Subject to this limitation, an applicant may be as creative in their description of their gender identity as in their choice of name.
Similar legislation allowing for people to register their choice of gender identity was also passed in Victoria in 2019. It allows for changes to birth certificates on the basis of self-identification as another sex. Like in Tasmania, the choices are not confined to male and female. A person could use any sex descriptor that is not obscene, offensive, or that could not practically be established by repute or usage.
In both Tasmania and Victoria, it is possible to change registered gender again after 12 months have elapsed. Gender, in these two states, is not just fluid. It can be transient. Notwithstanding this transience, the registration of a new gender identity displaces sex on the birth certificate.
The problem of sex reassignment surgery
In the parliamentary debate in Tasmania, the main stated goal of the amendments was to allow the very small number of Tasmanians who identify as transgender to record a change of gender without the necessity of going through sexual reassignment surgery. Prior to 2019, evidence of sexual reassignment surgery was needed for legal recognition. An application to register a change of sex had to be accompanied by a statutory declaration from two medical practitioners verifying that the person had undergone sexual reassignment surgery.
Sexual reassignment surgery is one option – but only one – for treating gender dysphoria, which is the suffering that arises from the incongruence between natal sex and gender identity. This distressing condition has long been known to the medical profession. There are those who have found relief and better health through medically-assisted transition to another gender presentation. That may involve a combination of cross-sex hormones (which must be taken for life) and surgeries. This is not necessarily an antidote to psychological distress. Suicide rates and mental health problems of transsexuals after transition remain very high.
Sexual reassignment surgery can have significant complications. Giving transgender people a way of achieving a legally recognised status without having to undergo such major changes to their bodies was a laudable goal. No doubt for this reason, the amendments attracted sympathetic support from parliamentarians.
However, the legal changes brought about by the legislation went very far beyond this. They embedded in Tasmanian law beliefs that are held by only a small minority of people, albeit that the voices of those people exercise an influence disproportionate to their numbers in the media, universities and school education departments.
To illustrate how radical the changes to Tasmanian law were, a good starting place is to examine what happens now if a Tasmanian applies for a birth certificate. That ought to be a fairly straightforward issue. However, to understand the current law in Tasmania requires descending down a deep rabbit hole, guided by a dictionary to interpret the new meanings given to the terms ‘sex’ and ‘gender’. Essentially, sex is a matter of anatomy and reproductive capacity, while gender is a state of mind.
Birth certificates in Tasmania
Registration of a birth in Tasmania is usually done by the hospital or a medical professional. Parents may also complete the registration by completing an online form which asks various questions. One of the questions is about the sex of the child. There are only two choices: male or female. All questions must be answered. The process is very simple.
By way of contrast, getting a birth certificate is the zenith of complexity. Applicants are offered a smorgasbord of options that must be bewildering to many people. The form helpfully lists them all. There is “birth certificate including all registered gender and name change details (if any)”; “birth certificate with current gender only”; “birth certificate with current gender and details of registered name changes (no gender history)”; “birth certificate with all registered gender details but no details of registered name changes”; “birth certificate without gender and no details of registered name changes”; and finally “birth certificate without gender with details of registered name changes”. In the last two options, the words “without gender” are underlined for emphasis. There are also decorative options for commemorative birth certificates. Each of them has an option not to show the gender of the child.
Fortunately, the Government has made the choice between these options a little clearer by having “birth certificate including all registered gender and name change details (if any)” as the first option, and one which is recommended for evidence of identity. The remainder are given as alternative choices to that option.
Amongst the smorgasbord of choices with which the parent is presented, there is no option to indicate the child’s sex, even though this was what the parent was asked about when registering the child. At the time of birth registration, the Government wants to know about biological sex; but when it comes to birth certificates, it only recognises something called ‘gender’. This is curious because the Government’s birth certificate website states:
A birth certificate is an official, certified copy of the birth registration details held by Births, Deaths and Marriages.
Clearly it is not, for the applicant is not permitted to receive a birth certificate which has the same details as were registered, including sex. This would be a mere semantic quibble, if ‘sex’ and ‘gender’ were synonymous. However, as Tasmanian law now stands, they are not.
The Labor/Greens parliamentary coup
The legislation was embroiled in controversy in its passage through Parliament. In its original form it was the Justice and Related Legislation (Marriage Amendments) Bill 2018. It proposed a number of amendments to various Tasmanian Acts as a consequence of the federal legislation allowing same-sex marriage. These were minor and uncontroversial amendments to laws that removed inconsistencies between Tasmanian law and the Commonwealth law as it stood after the changes to the Marriage Act. One of the Acts to be amended was the Births, Deaths and Marriages Registration Act, which had provided that an applicant seeking to register a sex change could not be married (this, in law, creating in effect a same-sex marriage). The Bill proposed to delete that constraint.
Labor and the Green parties moved substantial amendments to the Bill to introduce wholesale changes to the part of the Registration Act concerned with registering sex changes. The Speaker voted with Labor and the Greens to allow debate on the amendments, notwithstanding that this almost certainly breached well-established rules for the conduct of Parliaments within the Westminster tradition. It is not open to members of Parliament to move any amendments to a Bill. Amendments must be within the scope and purpose of the Bill. It is very difficult to see how the Labor/Green amendments could have satisfied this test.
The extensive changes passed the Lower House and then went to the Legislative Council, where some further amendments were made before the legislation passed.
How many people have registered a gender?
These provisions came into effect on September 5, 2019. Statistics obtained through freedom of information indicate that 95 people aged 16 years or over had registered a gender by April 16, 2021, that is, more than 18 months later. Seventeen children under 16 had a gender registered for them by a parent or parents. 31 people took, or were given, a male identity, 66 a female identity and 13 chose to describe themselves as non-binary (or were described as such by parents). Two chose a gender identity that was neither male, female nor non-binary.
The number of people over 16 who have registered a gender constitutes 0.0175% of the Tasmanian population. This is broadly consistent with expected prevalence of transgender identification internationally. The Diagnostic and Statistical Manual of Mental Disorders (DSM) (5th ed, 2013) estimates rates of gender dysphoria for biological adult males at 0.005 per cent to 0.014 per cent of the population, and for biological females, from 0.002 per cent to 0.003 per cent, but there are differences in prevalence rates between countries. The DSM does not provide data on those who identify as non-binary, probably because this is such a novel concept.
The exclusion of gender from birth certificates
The smorgasbord of different options for what is included on a birth certificate in Tasmania is the consequence of s.46, which originally contained just 66 words. Illustrating the extraordinary capacity of the drafters of these amendments to make mountains out of molehills, the amended version of s.46 runs to ten subsections and contains a total of 1033 words.
The legislation discourages the inclusion of the category of gender on the birth certificate. Gender cannot be included unless the applicant specifically requests this. This prohibition may seem very odd. It is one thing to assist a very small number of transgender Tasmanians to register a different gender identity without having to go through surgery; it is quite another to dictate to all Tasmanians that sex at birth should not be included on a birth certificate unless they specifically request that. This was a change to the law affecting the 99.9% of the population who do not identify as intersex or transgender. The needs of the small minority could have been satisfied simply either by being able to request a birth certificate without a record of sex at birth or to have one with their recognised gender identity.
The belief system of the new transgenderism
The legislation is underpinned by a range of beliefs that are novel and in radical discontinuity with the previous consensus on how transgender identification should be understood. For the most part, these beliefs can neither be validated nor falsified by science.
The first of these beliefs (which is at least consistent with prior understandings of transgenderism) is that those who identify as transgender were born that way – hence a change of gender identification requires a change to the birth certificate. This widely-held belief is not, at this stage, well-supported by evidence. Some are confident of a biological cause, without being able to offer an explanation for it. However, research has thus far failed to identify a physiological basis for transgender identification. It may be that a genetic or hormonal explanation for some transgender identification will eventually be found, but so far it has eluded researchers.
There is, nonetheless, a lot of evidence that at least some of the young people now being referred to gender clinics are suffering from multiple mental health issues which cannot only be explained as being a consequence of discrimination or depression about their gender identity. These adolescents are many times more likely than young people in the general population to be on the autism spectrum. Gender dysphoria has been found to co-exist with attention deficit disorders and eating disorders. Adolescents identifying as transgender or gender diverse also report significantly higher rates of childhood sexual abuse. Recent new evidence from clinicians based at Westmead Children’s Hospital indicates strong associations between gender dysphoria and disordered attachments to parents, as well as unresolved loss or other adverse childhood experiences, including abuse and neglect. There is also evidence that teenage girls in particular may identify as transgender as a result of peer and social media influences without any history of a divergent gender identity earlier in childhood.
Given the lack of clear scientific evidence for the idea that all those who identify as transgender were born with this condition, and the strong evidence that mental health issues and adverse childhood experiences play a part, it is unwise to pass legislation that assumes that the record of birth is in some way defective. Dealing with gender identity issues by making changes to birth certificates falsifies the historic record and embraces an unproven theory of causation. It also posits a single explanation for all transgender identification when there may be multiple causes.
The second belief is that gender identity is a matter of internal discovery, and rests entirely upon self-identification. Prior to someone being old enough to make such a self-identification, the designation of a child’s sex as either male or female is believed to be provisional at best. In the academic literature, researchers often talk of sex being “assigned at birth”, as if it represented a judgment call. An English charity, the Gender Identity Research & Education Society, seeks to communicate to young children the idea that gender has to be discovered through a penguin story. The penguin parent tells the infant: ‘We can’t always tell if you’re a boy or a girl’. The parents encourages the infant penguin to tell them when the infant is ready. The idea that gender identity is something to be discerned within is something akin to the religious idea of a ‘soul’ that is somehow distinct from the body.
The third belief is that what really matters to a person is not their sex, but their gender identity, because that defines who they really are. It follows that they should be entitled to change their birth certificate and other official records to align those records with their gender identity. Because their gender is who they really are, trans females are really females and should be permitted to play in women’s sports teams and competitions, and to use female changing rooms and other facilities, irrespective of whether they have had surgery to transition to a female physical presentation.
This is not necessarily a claim that transgender people make for themselves. In a large French study, researchers found that only 75 per cent of those who had undergone sex reassignment surgery considered that they had made a complete transition across the binary divide to become a person of the identified gender. Furthermore, there is a degree of artificiality in this claim to be of the identified gender for all intents and purposes. Doctors, after all, need to treat their patients, where relevant, in accordance with their chromosomal and physiological sex, not their gender identity. Trans females will never need a hysterectomy, and trans males will never need a prostate exam.
The fourth belief is that self-identified gender represents the higher truth, displacing chromosomes and reproductive capacity as definitional to what it means to be male or female. It follows that men can have babies. Thus, the Tasmanian legislation makes clear that any reference to the pregnancy of a female includes the pregnancy of a person of another gender and similarly clarifies that a person of another gender who carries a child in the “person’s female reproductive tract”, or who gave birth, is the mother, subject to the operation of surrogacy laws.
The fifth belief is that because gender identity is a matter of personal discovery, there is no need for medical diagnosis. Hitherto, transgender identification has been understood to be a medically diagnosable disorder. Prior to its most recent edition, the DSM, a primary reference source for psychiatrists, referred to the problem as a ‘gender identity disorder’. A clear statement of the new ideology can be found in the Yogyakarta Principles, drawn up by some non-government human rights specialists in 2006. Principle 3 states that no-one should be forced to undergo medical procedures as a requirement for legal recognition of their gender identity – not even cross-hormone therapy. Principle 18 explains that a person’s gender identity is not, per se, a medical condition that needs to be treated. This idea is embedded in the Tasmanian legislation. The Registrar for Births, Deaths and Marriages is forbidden from requiring “a medical certificate, or other medical document, in relation to the sex, sexual characteristics or gender of the person”.
The sixth belief of this new transgenderism is that gender identity need be neither male nor female. Hitherto, those who identified as transsexual or transgender understood themselves within the context of the male-female gender divide. They identified as ‘trans male’, ‘trans female’, MtF, or FtM. Now, male and female are only two choices amongst many. People may be non-binary, or agender, or pangender, or genderqueer, amongst other descriptors that keep proliferating. None of these identities has an anatomical presentation, so this view of transgenderism is entirely disconnected from the notion that through sexual reassignment surgery, a person may be assisted to cross the binary divide from male to female or vice-versa.
This idea that there are multiple genders is reflected in the Tasmanian legislation, which gives people a large amount of choice about how to describe their gender. Just in case applicants need some ideas on what gender to call themselves, the relevant application form to register a gender offers the following as examples: Transgender, Transsexual, Bigender, and Agender.
The seventh belief is that because gender is something that can only be determined in the most provisional way at birth, it should not be on the birth certificate. Indeed, some argue that to do so is harmful to transgender and those with intersex conditions. There is a valid argument here in relation to those very rare cases where a child is born with a mixture of male and female reproductive organs or otherwise ambiguous genitalia. In the current Tasmanian law, there is no option to register a newborn as being intersex, nor to omit biological sex from the registration.
However, the argument made for omitting any reference to birth certificates is put on a much broader basis than just providing for those rare cases of what used to be called hermaphroditism. The Australian Feminist Law Journal, in 2019, published an article that argued that legally assigning a gender or sex after birth has “intrinsically violent” effects on bodies. The solution proposed was to avoid any public registration of gender or sex.
That position is supported by the non-government human rights experts who authored the Yogyakarta Principles Plus 10, drawn up in 2017. Principle 31 recommends that states take action to “end the registration of the sex and gender of the person in identity documents such as birth certificates, identification cards, passports and driver licences, and as part of their legal personality.” The position has even been advanced in the pages of the prestigious New England Journal of Medicine.
The legal effect of a registered change of gender
One of the major problems with the Tasmanian legislation is that no-one seems to have thought through the impact of these changes on the rest of the statute book.
When the 2001 amendments were passed, allowing for a change of registered gender for those who had had sex reassignment surgery, the legislation provided:
Where a person’s change of sex is registered under this Part, the person is, for the purposes of, but subject to, any law in force in this State, a person of the sex as so changed.
Similar provisions exist in other jurisdictions. They have not caused controversy. They are an appropriate recognition of those who have gone through major changes in their bodies in order to pass as the opposite sex so far as possible.
The radical amendments to the legislation in 2019 left this section of the Act unchanged, except to substitute the word ‘gender’ for ‘sex’. The effect is that if a person registers a gender as non-binary, then for the purposes of Tasmanian law, they are non-binary. Their sex, as recorded on their birth certificate, is no more. Theirs is an altered legal state.
The same is true in the Victorian legislation, except it uses the term ‘acknowledgement of sex’, for the process of registering a new gender identity; so a person who declares themselves non-binary has had, in law, a sex change.
The problem with the Tasmanian legislation is that it begins from the premise that sex and gender are different, and then concludes that gender is the same as sex once someone fills in a form which is accepted by the Registrar of Births, Deaths and Marriages. Through an application to an administrator without more, a person can, in essence, change their sex for legal purposes in Tasmanian law.
When does natal sex still apply?
This recognition of a new gender identity is subject to any laws to the contrary. The question arises when Tasmanian laws will have this effect. Most of the laws on the statute book, were of course, passed by the Parliament at a time when no-one had any concept that a person could be neither male nor female. Even those with atypical chromosomes or other disorders of sex development were classified, for legal purposes, as either male or female.
There is now no consistency in Tasmanian law on the meaning of ‘gender’. One example where ‘gender’ clearly means biological sex is in the the Anti-Discrimination Act. Ever since it was originally enacted in 1998, as the Tasmania Law Reform Institute notes, the Act has used the word ‘gender’ rather than ‘sex’ as the relevant attribute in relation to which discrimination is prohibited. Section 27 of the Anti-Discrimination Act, for example, creates various exemptions to the prohibition of gender discrimination, including allowing for single ‘gender’ schools. In this context, gender is clearly synonymous with biological sex. Consistently with this, the guidance provided by Tasmania’s Equal Opportunity Commission uses the terms ‘gender’ and ‘sex’ interchangeably.
It follows that in the Anti-Discrimination Act, gender is binary in character (that is, either male or female). Gender identity is different. A single sex girls’ school in Tasmania will not be in breach of anti-discrimination law in Tasmania if it rejects an application from a natal male who is registered as female by his parents. The school treats all natal males equally, irrespective of their gender identity, by not permitting any of them to enrol in the school. Similarly, the manager of the public swimming pool (subject to any relevant Council policies) would not be in breach of anti-discrimination law by refusing to allow a person with a male physique to use the female changing facilities. This is because the Anti-Discrimination Act allows discrimination on the basis of gender “in the provision or use of facilities, if those facilities are reasonably required for use by persons of one gender only.” There is no obligation to include self-identified females aged 12 or over who are anatomically male in female competitive sports either, because such differentiation is lawful under s.29 of the Act.
The position in relation to other laws is far less clear, particularly for those who register their gender as non-binary. Numerous statutes are drafted with an understanding that sex may be either male or female. An illustration is the Forensic Procedures Act 2000 (Tas.), s.45 which refers to a police officer of the ‘opposite sex’. The definition of relationship status in the Surrogacy Act 2012 (Tas.), s.4 refers to “a sexual partner of another person of either sex”. Section 30 of the Misuse of Drugs Act 2001 (Tas.), concerning strip searches, contemplates that police officers may be either male or female. The Environmental Management and Pollution Control Act 1994, s.13A(2) requires that the Board of the Environment Protection Authority include at least one person of each sex. The Education Act 2016 (Tas.) ss. 229 and 241 refers to the desirability of certain Boards having representatives of ‘both sexes’.
Inevitably, police officers, government administrators, lawyers and courts will be required to fall back on the biological categories of male and female in order to apply the law sensibly, notwithstanding the 2019 legislation which recognises different kinds of self-identified gender.
The Tasmania Law Reform Institute has proposed various changes to the statute book to bring it into conformity with the 2019 legislation, but glosses over the many difficulties that arise from the acceptance that self-identified gender can have legal effects other than for the purposes of an official gender recognition document. For example, it notes that the Tasmania Prison Service has a standing order on transgender, transsexual and intersex prisoners to the effect that prisoners will be managed according to the gender with which they identify. This is possible if sex and gender are understood as binary, but makes no sense once one accepts that legally, a person may be non-binary. It is hardly a good use of public money for Tasmania to develop new prisons, or wings of prisons, for the small number of prisoners who identify as neither male nor female. Common sense suggests that prison facilities be operated in accordance with anatomical sex, not gender, especially given the possibility that self-identified gender will be gamed in order to gain privileges. In the UK, reports indicate that one in 50 male prisoners now claims to be transgender.
The rights of others
Because self-identified gender identity has effects in relation to other Tasmanian laws, it may impact upon other people’s rights. An example is s.22(4)(a) of the Police Powers (Public Safety) Act 2000, which requires that strip searches be carried out by a person of the same sex as the person being searched. This must now be read as inclusive of a person whose registered gender is the same as the sex of the person being searched. The person being searched has no right to object to a strip search by a person of the opposite biological sex who has changed gender on the basis of nothing more than self-identification. The same issues arise under a number of other statutes concerned with searches and forensic procedures, in which women may feel a particular concern for their bodily privacy and might want to object to a biological male conducting the search or procedure.
Law, policy and recognition of transgender status
The intentions of the Parliament to make it possible for transgender people to identify as another gender without sex reassignment surgery could have been fulfilled in a range of ways without embracing unscientific and highly controversial beliefs. People who self-identify as the opposite sex could have been given a gender recognition certificate for the purposes of indicating gender on driving licences or other such official documents. This does not impact upon the rights of anyone else. It may be that there are other contexts where recognition should be given to self-identified gender identity as well; but this has to be because the policy reasons that justify legislative differentiation between the sexes apply equally to those who self-identify as that gender.
There is no public policy case for allowing people to register an identity other than male or female, or for this to displace recorded sex. Law cannot change a person’s anatomy. Self-declared gender identity does not displace, erase or irreversibly alter anyone’s sex. Recognition of that gender identity needs to be in addition to, rather than a replacement of, a person’s biological sex.
Of course, everyone is welcome to hold whatever beliefs they wish, and use whatever terms to describe their personality as they wish; but legislation must be founded on a consensus of known truth. Coherence could be restored to the law to some extent by repealing the provision that, for the purposes of Tasmanian law, a person is the gender as registered. A more limited provision could be put in its place. The entirety of the statute book does not need to be amended for the law to provide a respectful recognition of the gender identity of less than 100 adults. Still less should the Parliament deliberately erase differences between male and female,
There is a final question to be asked about this unfortunate episode in the Apple Isle’s legal history. Is it so unreasonable for Tasmanians to want their birth certificates to be what they are meant to be – a record of their birth? If 99.98% of the Tasmanian population have no difficulty with their sex or gender, and have not sought to change official records, should policy be dictated by tiny minorities who would like to see sex at birth erased from public records?
The Tasmanian Parliament, recently dissolved, lost its way in a fog of ideological confusion and unscientific beliefs. The new Parliament needs to do better, and to take account of the beliefs of the large majority of people who do not have degrees in gender studies.
Patrick Parkinson is Professor of Law at the University of Queensland