Historically and currently, Births, Deaths and Marriages (BDM) legislation is used to make trans people undergo medical treatment in order to change the sex marker on their documentation. Despite this, the link between birth registrations and medical treatment on intersex people is not clearly understood. Indeed, this area of legislation is often seen as an inappropriate place to raise issues about medical assignments of intersex people. I find this increasingly problematic.
Even new legislation, currently before the ACT Assembly, says that applications to change records of sex involve “clinical treatment” for trans people:
8 (c) the person believes their sex to be the sex nominated in the application (the altered sex), and—
- (i) has received appropriate clinical treatment for alteration of the person’s sex; or
- (ii) is an intersex person.
(source: ACT government)
Even though it is not explicitly stated as a requirement, “normalising” medical interventions are used on intersex infants and children, to instil a gender identity, and reinforce an assigned sex of rearing. The Senate Community Affairs Committee recently stated this very clearly:
As OII commented, normalisation surgery is more than physical reconstruction. The surgery is intended to deconstruct an intersex physiology and, in turn, construct an identity that conforms with stereotypical male and female gender categories
(source: Senate Committee report, para 3.109)
In contrast to the approach to birth registration changes in Australia, the Argentinian Gender Identity Law of 8 May 2012 states in its requirements (Article 4):
In no case will it be needed to prove that a surgical procedure for total or partial genital reassignment, hormonal therapies or any other psychological or medical treatment has taken place. (source: GATE)
This is a significant and welcome step forward from the position taken in Australia: it depathologises trans people. It ensures that no clinical treatment is needed to change registration, and it prevents the imposition of such rules by third parties. However, it ignores the pathologisation of intersex people and so I believe that is it still insufficient.
Medical treatment needs to be completely decoupled from legal designations of sex for all of us.
BDM legislation should actually be making it illegal to conduct clinical treatment for the purposes of making a registration or re-registration of sex.
This should not mean that people would not be able to seek and obtain medical treatment for the purposes of confirming their gender, it would simply mean that it would be prohibited as a requirement for obtaining a certificate.
Personal commentary by Morgan Carpenter, President of OII Australia.