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Letters to QPILCH

Queensland Public Interest Law Clearing House Incorporated

http://www.qpilch.org.au/


Wednesday, May 16, 2007 3:22 PM

From: QPILCH Assessment [mailto:ASSESSMENT@qpilch.org.au]

Sent: Wednesday, May 16, 2007 3:22 PM

To: knoble@iinet.net.au

Subject: Your application for referral

Dear Ms Noble,

Thank you for your last correspondence received on 7 May 2007.

I must apologise but unfortunately I am still unable to discern what the legal issues are that you would like assistance with.  I know that you have sent us lots of information in relation to the situation, however we are still unclear as to what your legal questions actually are.

After reading all the material and information that you have supplied to us we have come to the conclusion that you may be seeking advice about the following matters:

§         whether the State/Territory and Federal Governments can enact legislation which provides for the full legal recognition of transsexuals in their assigned sex, regardless of their place of birth, via a Gender Recognition Certificate (“GRC”);

§         the system of legal recognition currently in place in Queensland of transsexual persons who have undergone sex reassignment surgery (“SRS”);

§         whether you are recognised as person of your assigned sex in Queensland, if you have received recognition in another country; and

§         whether the Federal Government legally recognises a person who has undergone SRS as a person of that sex.

We address those matter below.

Amendment and enactment of State/Territory and Federal Legislation

Unfortunately we are unable to provide you with advice as to your first issue.  As was mentioned in our last email to you dated 3 May 2007, QPILCH is unable to assist you in matters relating to policy, campaigns for changes to legislation or legal issues relevant to other States or Territories.

System of legal recognition in Queensland

The current system in Queensland under sections 22-24 of the Births, Deaths and Marriages Registration Act 2003 (Qld) for the recognition of a person in their assigned sex does not include the provision of a Gender Recognition Certificate or an amended Birth Certificate (“BC”).  However this does not mean that a person is not legally recognised as a person of their assigned sex.  Recognition is made in the form of a note on the Registry which indicates that the birth has been re-registered (provided the person is not married). 

If you have received a GRC and an amended BC from another State or Country which stipulates that you are now a person of your assigned sex, then it is our understanding that you should be recognised as a person of that sex in Queensland.  If our understanding is incorrect, and you have had experiences where you have not been recognised in your preferred sex, please let us know.

Recognition of foreign amended birth certificates in Australia

If you were born in the United Kingdom, and you obtained a GRC and an amended BC in your assigned sex without undergoing SRS, then from what we can gather it would appear that you should be recognised as a person of that assigned sex Australia-wide.  Please let us know if your experience with this has been different.

Recognition of assigned sex by the Federal Government

There are no laws currently enacted by the Federal Government, as issues related to births and deaths are currently solely legislated for by the State Governments.  However, the Federal Government will recognise changes to a persons sex on their passports, citizenship certificates and information held by the Health Insurance Commission.

We hope that this information has clarified any issues that you may have had with regards to the legal recognition of transsexuals in both Queensland and Australia.

Can you please let us know whether this information has answered your questions.  If not, it would be appreciated if you could clearly indicate what legal issues you still require assistance with. 

We are more than happy to provide assistance in any way we can, however in order to do so we need to be clear as to what legal issues you are seeking advice about. 

Kind regards 

Rochelle Carey

Acting Coordinator

Queensland Public Interest Law Clearing House Incorporated

GPO Box 1543, BRISBANE   QLD   4001

Phone: 07 3012 9773

E-mail: contact@qpilch.org.au

Website: www.qpilch.org.au

Wednesday, May 16, 2007 3:22 PM


Wednesday, May 16, 2007 7:45 PM

From: Kathy Noble

Sent: Wednesday, May 16, 2007 7:45 PM

To: 'contact@qpilch.org.au'

Subject: Ms Noble.doc

To Rochelle Carey,

Attached Below are my answers to your questions.

Kathy Anne Noble

President Changeling Aspects

***

Rochelle Carey

Acting Coordinator

Queensland Public Interest Law Clearing House Incorporated

Ms Noble,

Thank you for your last correspondence received on 7 May 2007. 

I must apologise but unfortunately I am still unable to discern what the legal issues are that you would like assistance with.  I know that you have sent us lots of information in relation to the situation, however we are still unclear as to what your legal questions actually are.

After reading all the material and information that you have supplied to us we have come to the conclusion that you may be seeking advice about the following matters:

*whether the State/Territory and Federal Governments can enact legislation which provides for the full legal recognition of transsexuals in their assigned sex, regardless of their place of birth, via a Gender Recognition Certificate (“GRC”);

Correct ! At present only South Australia and Victoria offer this!

*the system of legal recognition currently in place in Queensland of transsexual persons who have undergone sex reassignment surgery (“SRS”); 

*whether you are recognised as person of your assigned sex in Queensland, if you have received recognition in another country; and

At present we are asking this question, as it would appear that under common law we are , as we have had SRS and are now considered as female, or male, whichever way we have gone. Still nothing on the statutes to state this. I have been asking our A-G about this since 2004!

*whether the Federal Government legally recognises a person who has undergone SRS as a person of that sex.

It would appear that this is the same situation as QLD, as there is no law to cover this area. Also the Federal A-G has told me in writing that it is not their province, as it is up to each State and Territory to enact laws covering us!

We address those matter below.  

Amendment and enactment of State/Territory and Federal Legislation

Unfortunately we are unable to provide you with advice as to your first issue.  As was mentioned in our last email to you dated 3 May 2007, QPILCH is unable to assist you in matters relating to policy, campaigns for changes to legislation or legal issues relevant to other States or Territories.

I Understand that QPILCH will not lobby for legislative change as explained above.

 System of legal recognition in Queensland

The current system in Queensland under sections 22-24 of the Births, Deaths and Marriages Registration Act 2003 (Qld) for the recognition of a person in their assigned sex does not include the provision of a Gender Recognition Certificate or an amended Birth Certificate (“BC”).  However this does not mean that a person is not legally recognised as a person of their assigned sex.  Recognition is made in the form of a note on the Registry which indicates that the birth has been re-registered (provided the person is not married).

While there is no provision to issue a recognition certificate, the Act does recognise one issued by another jurisdiction

I agree with what you have written, but that does not cover those residing in QLD, but born abroad. I have a GRC from the UK, but I do not know if that gives me full recognition in QLD!

Note that there is no provision for an amended BC... only a notation on the Register. This needs to be changed, as it applies to those born in QLD.

Also note the provisions of s24, especially subsection (2)

24 Effect of reassignment of sex

(1) A person who has had the reassignment of the person’s sex entered into a register maintained under a corresponding law is a person of the sex as reassigned.

(2) A person who is the subject of a recognition certificate is a person of the sex stated in the recognition certificate.

(3) However, the person must comply with section 2310 for the reassignment of the person’s sex to be noted under this Act.

(4) If the reassignment of a person’s sex is noted under this Act, the person is a person of the sex as reassigned.

“recognition certificate” means a certificate issued under the law of another State that identifies the person who is the subject of the certificate as­:

(a) having undergone sexual reassignment surgery; and

(b) being the sex stated in the certificate.

 If you have received a GRC and an amended BC from another State or Country which stipulates that you are now a person of your assigned sex, then it is our understanding that you should be recognised as a person of that sex in Queensland.  If our understanding is incorrect, and you have had experiences where you have not been recognised in your preferred sex, please let us know.

We are still awaiting replies from the QLD A-G on this matter. As explained above!

See s24(2)

Recognition of foreign amended birth certificates in Australia

If you were born in the United Kingdom, and you obtained a GRC and an amended BC in your assigned sex without undergoing SRS, then from what we can gather it would appear that you should be recognised as a person of that assigned sex Australia-wide.  Please let us know if your experience with this has been different.

I have had SRS. Others who have received an amended BC from UK although unable to have SRS due to health reasons have not tested the system. We consider that as Australian requirements are for SRS before being able to change your BC, where does this leave us?

I disagree with the advice from QPILCH on this. Australian law is predicated on surgery and, if anyone raises the issue as a question to be considered by a Court, the sex of the person will be determined according to Re Kevin.

Recognition of assigned sex by the Federal Government

There are no laws currently enacted by the Federal Government, as issues related to births and deaths are currently solely legislated for by the State Governments.  However, the Federal Government will recognise changes to a persons sex on their passports, citizenship certificates and information held by the Health Insurance Commission.

Agreed! 

We hope that this information has clarified any issues that you may have had with regards to the legal recognition of transsexuals in both Queensland and Australia.

Can you please let us know whether this information has answered your questions.  If not, it would be appreciated if you could clearly indicate what legal issues you still require assistance with. 

We are more than happy to provide assistance in any way we can, however in order to do so we need to be clear as to what legal issues you are seeking advice about.

Not worried about those born in Australia, our concern is for those born Abroad, as per my answers above. We are aware of the Australian situation, but it is not clear if we are recognised after receiving a GRC/BC from UK –(for example).

It is quite clear... s24(2) says that the holder of a recognition certificate is a member of their affirmed sex.

Kathy Anne Noble

President, Changeling Aspects.

Wednesday, May 16, 2007 7:45 PM


Thursday, May 17, 2007 11:09 AM

From: Jodie Ball [mailto:JodieBall@humanrights.gov.au]

Sent: Thursday, May 17, 2007 11:09 AM

To: knoble@iinet.net.au

Subject: your correspondence to the Commission [SEC=UNCLASSIFIED]

Dear Kathy Anne Noble

I acknowledge receipt of your letter to the Commission dated 30 April 2007. Someone from the Commission will be in contact with you about your letter.

Yours sincerely

Jodie Ball

Thursday, May 17, 2007 11:09 AM


At 12:34 16/05/2007, you wrote:

Hi Karen,

I will follow up on what you have written about our A-G.

Question for you! Are you aware if the other States and Territories will recognise a GRC from within and without Australia? If so, it would only leave the Federal Govt to tidy up? Just a thought!

Thank you so much for all your help, it is very much appreciated.

Hugs, Kathy

Wednesday, May 16, 2007 12:34 PM

***

Thursday, May 17, 2007 3:28 PM

From: Karen Gurney

Sent: Thursday, May 17, 2007 3:28 PM

To: Kathy Noble

Subject: Re: QPilch

Hi Kathy

You are welcome.

I would be asking the Qld Ag to:

Amend the BDM Registration Act so that:

(i)   It requires the Registrar to issue a corrected birth certificate showing their affirmed sex to a person who was born in Qld and who has undergone SAS;

(ii)  It makes provision for the Register to issue a recognition certificate showing the affirmed sex of a person who is a resident of, but was not born in Qld and who has undergone SAS;

(iii)  It holds a person who has undergone SAS as a member of the sex shown on their corrected birth certificate or recognition certificate for all purposes of law as the powers of the Qld Parliament permit.  

(iv)   Sets the proof of having undergone SAS as two statutory declarations to that effect by medical practitioners who have treated the person for transsexualism.

(v)   It repeals the existing requirement that an applicant seeking an alteration to the Register following SAS be "unmarried' on the basis that marriage is a matter wholely within the prerogative of the Commonwealth which has evinced its intention to cover the field under s109 of the Constitution and no legislation enacted by the State can therefore affect a valid marriage. The common law as articulated in Re Kevin clearly holds that the sex of a person for the purposes of marriage is their sex at the time the marriage is entered into and no subsequent alteration in the sex of one of the parties can render a valid marriage void. The case law also holds the person, after surgery, to be a member of their affirmed sex for all contemporaneous purposes.

(vi)   It protects the privacy of the individual by prohibiting the Registrar from incorporating any statement or code or like identifier on the document that would make another person aware of the alteration contained therein.

Kaz

Thursday, May 17, 2007 3:28 PM

At 02:10 16/05/2007, you wrote:

Thank you Kaz!

I will work on it over the next few days. I think I have come to terms with most of it. Sorry to be such a pain.

Kathy


Friday, May 18, 2007 4:19 AM

From: Karen Gurney

Sent: Friday, May 18, 2007 4:19 AM

To: Kathy Noble

Subject: RE: QPilch

Hi Kathy

(1) WA issues a recognition certificate for people who have undergone SAS regardless of whether they are born in WA or elsewhere. It also recognises certificates issued by another jurisdiction: Gender Reassignment Act 2000 (You will need to check the regulations to see if a GRC issued in UK is accepted).

14. Applications for recognition certificates

 (1) Where a person has undergone a reassignment procedure (before or after the commencement of this Act and within the State or elsewhere), application may be made to the Board in accordance with this section for the issue of a recognition certificate.

16. Effect of recognition certificate

 (1) A recognition certificate is conclusive evidence that the person to whom it refers --

 (a) has undergone a reassignment procedure; and

 (b) is of the sex stated in the certificate.

 (2) An equivalent certificate issued under a corresponding law has the same effect as a recognition certificate under this Act.

corresponding law" _means --

 (a) a law of another State or of a Territory; or

 (b) a law of another country,

 declared by the regulations to be a corresponding law; _"equivalent certificate"_ means a certificate issued under a corresponding law that corresponds to a recognition certificate issued under this Act;

(2)  The ACT does not issue recognition certificates and appears to have limited the application of its legislation to recognise certificates issued elsewhere under the ACT BDM Reg Act 1977 but, once again, you need to check the regulations to see what other laws are prescribed:

29 Effect of certificates issued in respect of transsexual persons

(1) A birth certificate issued in respect of a transsexual person is, for the purposes of any law of the Territory, conclusive evidence of the person’s sex as stated in the certificate.

(2) An interstate recognition certificate is, for the purposes of any law of the Territory, evidence that the person referred to therein is of the sex as stated in the certificate.

(3) In this section:

interstate recognition certificate means a certificate issued under the law of a State or another Territory in respect of a person who has undergone sexual reassignment surgery, being a law that is prescribed for this section.

(3)  NSW is very similar to the ACT (surprise) under the BDMRA 1995:

32I Effect of alteration of register and interstate recognition certificates

(1) A person the record of whose sex is altered under this Part is, for the purposes of, but subject to, any law of New South Wales, a person of the sex as so altered.

(2) A person to whom an interstate recognition certificate relates is, for the purposes of, but subject to, any law of New South Wales, a person of the sex as stated in the certificate.

(3) An interstate recognition certificate is a certificate issued under the law of another State that is prescribed by the regulations for the purposes of this section.

(4)  NT BDMRA 1998:

28J. Recognition certificate A person in respect of whom there is a recognition certificate is, for the purposes of (but subject to) any law in force in the Territory, a person of the sex stated in the recognition certificate.

"recognition certificate" means a certificate that –

(a) is issued under a law that recognises that a person who has undergone sexual reassignment surgery may have changed sex;

(b) is issued in respect of a person who, having undergone sexual reassignment surgery, has changed sex; and

(c) states the sex of that person as so changed;

(5)  Tasmania BDMRA 1999 is not limited by any prescription and hence undoubtedly applies to UK GRA :

[Section 3 Amended by No. 59 of 2001, s. 5, Applied:01 Jan 2002] "recognition certificate" means a certificate that –

(a) is issued under a law of another State that recognises that a person who has undergone sexual reassignment surgery may have changed sex; and

(b) is issued in respect of a person who, having undergone sexual reassignment surgery, has changed sex; and

(c) states the sex of that person as so changed;

Recognition of certificates issued outside Tasmania

28H. [Section 28H Inserted by No. 59 of 2001, s. 6, Applied:01 Jan 2002] A person in respect of whom there is a recognition certificate is taken to be, for the purposes of, but subject to, any law in force in this State, a person of the sex stated in the recognition certificate.

Kaz

Friday, May 18, 2007 4:19 AM



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