Although the surgical process has been carried out in Australia for almost two decades, transsexuals continue to complain that their post-operative sexual re-assignment is not given due legal recognition.
The Act requires the sex of a person to be registered at birth. In recent times the Principle Registrar has allowed a record to be made of the historical fact of sexual re-assignment following surgery but the person's sex as recorded at birth remains alongside it on the register. The Commission is tentatively of the view that all this information should be recorded on the register but that the information should be recorded in such a way that the original register is not open for public or official scrutiny except with the consent of the person involved or by way of a court order.
The Principal Registrar's current practice is to refuse transsexuals the right to register a change of name (for example from John to Joanna), unless "appropriate documentation" is provided of sex change surgery. This is to invoke a requirement, in addition to proof of name change, which does not generally apply. Since October 1987 the Principal Registrar has decided to allow the issue of extract certificates of birth to transsexuals who have changed their names. The extract does not contain particulars of gender but the full certificate, required for many legal purposes, will continue to show not only former names but also the sex registered at birth.
The major concern of the Principal Registrar is that the extract could be used by the transsexual person for the purposes of the Marriage Act and a prospective partner or marriage celebrant could be misled and participate in what would be a void marriage between two persons of the same sex. The Commission is of the opinion that the marriage law is an ample vehicle to protect society against such deception. Our view is that the current practice is not only discriminatory but also capable of causing unnecessary embarrassment to a person who has made a genuine commitment to sexual re-assignment. Our proposals will not affect the substantive law of marriage in Australia which currently regards a marriage between people of the same sex as void.
