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Of bedrooms and bodies: law reform in relation to sexual orientation, gender identity and intersex status


Speech given to NSW Bar Association  (B/174 Phillip St, Sydney)



• Gadigal people of the Aeora nation;
• Dr Sarah Pritchard SC (Chair, Human Rights Committee, NSW Bar Association);
• Prof Andrew Byrnes (discussant).


In 2012, then US Vice President Joe Biden described discrimination against transgender people as “the civil rights issue of our time.”[i]  The Vice President was drawing attention to a relatively-hidden element of one of the most significant shifts in social policy since the US civil rights movement of the 1960s: the recognition and protection of human rights for lesbian, gay, bisexual, transgender or intersex (LGBTI) people.

In countries like Australia, this shift has three key dimensions:

  1. LGBTI people have been able to come out of the shadows.
  2. The LGBTI community has demanded equality and, broadly speaking, our polity has accepted this demand as legitimate.
  3. Real change has been taking place that addresses current and historical discrimination against LGBTI people. While many of the most flagrant inequalities have been, or are in the process of being, addressed, the LGBTI movement sees vital work still to do.

The main focus of what I’m addressing today is on a subset of LGBTI human rights issues – those affecting transgender and intersex people. But I will first try to put these issues into a broader context.

Visibility and a developing history

In a country like Australia – and perhaps especially in a large, cosmopolitan city like Sydney – it’s easy to forget a time, a recent time, when very few people felt able to live openly as lesbian, gay, bisexual, transgender or intersex.

In 1972, Peter Bonsall Boone (known as Bon) and his partner, Peter de Waal, kissed each other hello on ABC TV’s ‘Chequerboard’ program – the first time such a kiss between men had ever been broadcast in Australia. Chaste and restrained though the gesture was, it generated enormous controversy. It had significant personal ramifications, with Bon being summarily dismissed from his job as a secretary in a Mosman church.

I was born in 1978, the year of Sydney’s first Mardi Gras parade. In 2017, over 300,000 people watched the parade; about 10,000 people actually marched. There was a float made up of representatives of the Australian Securities and Investment Commission. A point I make to emphasise that it has become – let’s say – quite mainstream.

But in 1978, participating in the parade was a subversive, dangerous act. The 500-plus marchers, whose numbers swelled organically on the evening, were protesting against laws that criminalised their sexual activity and failed to protect them against discrimination in work and daily life. While official permission had been given for the march, the permit was revoked and police broke up the parade arresting 53 people.

Stigmatisation of LGBTI people was the product of laws, policies and attitudes. It meant that EM Forster’s positive depiction of a homosexual relationship in Maurice wasn’t published until 1971 – a year after Forster’s death. Patricia Highsmith’s ground-breaking 1952 novel, The Price of Salt, is considered the first to depict a lesbian couple where neither has a nervous breakdown, dies at her own hand or in otherwise tragic circumstances; neither ends up sad and alone; and neither returns to a relationship with a man. But the manuscript was rejected by Highsmith’s regular publisher and published only by a lesser-known firm under a pseudonym.

Stigmatisation meant that a distinguished jurist like the Hon Michael Kirby was forced into the invidious position of being somewhat ambiguous about how he publicly acknowledged his long-term partner, Johan van Vloten, until 1999 when he finally felt it safe to be completely open about his relationship.

Bon, the man whose kiss in 1972 created such a stir, died last month. Bon lived to celebrate the NSW Government introducing legislation to quash historical convictions for homosexual activity, including his own from 1957. And yet he never had a chance to marry his partner of over 50 years.

As change was taking place in Australia, it was happening elsewhere too. The US has been an important crucible in developing some of the intellectual foundations and strategies that are central to any movement for social change. This has influenced some other countries, but the relationship of influence seems largely symbiotic, with important leaders of the movement coming from outside the US – including from Australia.

While this movement is international, it is not truly global. In many countries, including Australia, the trajectory in recognising and protecting equality for LGBTI people appears clear and positive. But there remain many parts of the world where reform is slow and sclerotic; where that combination of law, policy and culture combine to oppress; where there’s no visible LGBTI community because it’s unsafe.

History of law reform

In the two decades from 1975, the Australian states and territories one by one decriminalised sex between two people of the same gender. South Australia was the first state to do so, and Tasmania the last.

From the 1990s, federal, state and territory anti-discrimination laws were progressively amended to make sexual orientation a protected attribute. In most jurisdictions, that protection has been widened further to include related characteristics such as gender identity. Exemptions remain in these laws – particularly where conduct that would otherwise be unlawful discrimination is undertaken by voluntary bodies, religious bodies, educational institutions established for religious purposes and in sport.

The Australian Human Rights Commission also undertook a major piece of research to identify other laws that directly or indirectly discriminated against people in same-sex relationships. The Commission’s resultant Same-Sex: Same Entitlements Report provided a template for reform,[ii]  which the federal government has followed to remove the vast majority of these discriminatory practices.

Of course, there remain areas of continued controversy – the most obvious one being marriage. While this is a vital issue, and I’d be happy to discuss this in the Q&A section, I would like to focus the remainder of my remarks now on another issue.

Legal recognition of gender

The specific challenges faced by transgender and intersex people are only now starting to become apparent and to be grappled with by the law.

Most Australian states and territories still require people to provide evidence that they have had surgery and are unmarried in order to change the legal record of their sex or gender.

On its face, this seems to contravene several human rights protected at international law, including:

  • non-discrimination
  • protection from torture, cruel, inhuman or degrading treatment or punishment
  • recognition before the law
  • freedom from arbitrary interference with privacy and/or family life
  • freedom of expression
  • right to marry and found a family.

But it also seems a completely un-necessary and harmful obstacle. In 2009, the Commission issued its ‘Sex Files Report’ on the legal recognition of sex in documents and government records.[iii]  The report identified human rights issues relevant to the recognition of gender identity and recommended improvements to the existing systems for the legal recognition of gender identity in Australia.

The Sex Files Report has informed subsequent legal and policy reform initiatives.

The first significant move was in 2011, when the Department of Foreign Affairs and Trade (DFAT) introduced new guidelines to enable people to change the sex recorded on their passport if the application is supported by a statement from a doctor or psychologist confirming that they have received ‘appropriate clinical treatment’. The Guidelines make it clear that ‘[s]urgery is not a prerequisite’ for a passport to be issued in a person’s affirmed sex.[iv]

In 2013, the Attorney-General’s Department implemented the Commission’s recommendation that the Government develop national guidelines on the collection of sex and gender information from individuals – in other contexts. Like the Passport Guidelines, the Guidelines on the Recognition of Sex and Gender state that ‘[s]ex reassignment surgery and/or hormone therapy are not pre-requisites for the recognition of a change of gender in Australian Government records’.[v]

Departments and agencies may, however, request the following ‘evidence’ to ‘verify’ a person’s sex or gender:[vi]

  • a statement from a psychologist or registered medical practitioner which specifies the person’s gender
  • a valid Australian Government travel document, such as a valid passport, which specifies their gender
  • a state or territory birth certificate which specifies their gender or a document recognising a change of sex / gender.

New South Wales

The situation is different in NSW. An adult born in this state must satisfy two conditions to change the legal record of their sex. They must have undergone a ‘sex affirmation procedure’ and they must not be married.[vii]

‘Sex affirmation procedure’ is defined by the Act to mean ‘a surgical procedure involving the alteration of a person’s reproductive organs’, with the purpose of ‘assisting a person to be considered a member of the opposite sex’ or ‘to correct or eliminate ambiguities relating to the sex of the person’.[viii]

Attempts have been made to amend NSW law but none has yet been successful.[ix]

I should note that the High Court’s decision in Norrie did not alter these requirements. In that case, Norrie had undergone a sex affirmation procedure within the definition of the Act.[x]  The question before the Court was whether it fell within the Registrar’s power to record Norrie’s sex as something other than male or female; ‘non-specific’.[xi]  The Court unanimously agreed that it was within the Registrar’s power to do so. While this was an important development for people who wish to record their sex or gender as something other than male or female, it changes nothing regarding the surgery requirement.

Comparison with other jurisdictions

The surgical and marriage requirements in NSW are extraordinarily invasive – the surgical requirement especially. Frankly, it’s difficult to perceive a mischief to which this requirement constitutes a proportionate response.

It’s also worth noting that NSW is increasingly unusual by comparison with other jurisdictions.

Outside of the Commonwealth, the ACT was the first Australian jurisdiction to reduce the burden on trans and gender-diverse people who want to change the legal record of their sex / gender. Since 2009, the ACT no longer requires a person be ‘unmarried’. And in 2014, the Government implemented the ACT Law Reform Advisory Council’s recommendation to remove the surgery pre-requisite for changing the registry record of a person’s sex.[xii]  The ACT still requires a person who wishes to change the legal record of their sex to provide a statement from a doctor or psychologist confirming that they have received ‘appropriate clinical treatment’, and so still imposes a barrier that many consider unnecessary, given that self-identification would pose very little risk to anyone.

Similar reform processes remain ongoing in Victoria and South Australia.

Overseas, in April this year, the European Court of Human Rights held by a 6:1 majority that the requirement in French law that a person must provide evidence of a surgical intervention in order to change the legal record of their sex violated Article 8 of the European Convention on Human Rights, the right to respect for private and family life.

And in March this year, the Swedish Government proposed a new law to compensate trans and gender-diverse people who were forced to undergo sterilisation in order to change the legal record of their sex. 

Medical interventions involving people with intersex variations

The term ‘intersex’ refers to people who are born with genetic, hormonal or physical sex characteristics that are not typically ‘male’ or ‘female’.

A significant issue is how decisions to intervene medically – and especially surgically – are made. The recent Re Carla case exemplifies some of the issues.[xv]

The facts of the case might be summarised as follows. Carla was born with an intersex variation: 17 beta hydroxysteroid dehydrogenase 3 deficiency and XY sex chromosomes. This meant she has no female reproductive organs. She had male gonads that are not contained within a scrotum. Carla has been raised as a girl since birth and, at the time of the case, she was 5 years old.

In 2014, two years before the hearing, Carla underwent a “‘clitoral’ recession and labioplasty” to feminise her external appearance. In 2016, Carla’s parents applied to the Family Court for authority to consent to further medical treatment; specifically, the bilateral removal of her gonads and other related procedures.

The Family Court considered a number of issues including the following:

  • Is the proposed treatment justified?
  • Does the decision regarding treatment fall within the scope of permissible parental authority as determined by the High Court in Marion’s Case, or does it require the authorisation of the court?
  • If the decision falls with the scope of permissible parental authority, does the court nevertheless have the jurisdiction to authorise the medical procedure on application by the parents?

The Court determined that the decision regarding treatment fell within the scope of permissible parental authority as determined in Marion’s Case. But the Court could still authorise the medical procedure.

The Court did authorise the proposed surgery and related procedures. In doing so, it had regard to the opinion of a psychologist, Dr S, that Carla had developed a female gender identity and was unlikely to change. He based his conclusion on observations, including that ‘[s]he happily wore a floral skirt and shirt with glittery sandals and Minnie Mouse underwear and had her long blond hair tied in braids’, and that she spoke in an age-appropriate manner, and described a range of interests/toys and colours, all of which were stereotypically female (eg, having pink curtains, a Barbie bedspread and campervan, necklaces, lip gloss and ‘fairy stations’).

The Court also referred to the evidence of Dr C, that the procedure would address a 28% risk of transformation into germ malignancy. The Court considered a number of other potential consequences of not having the procedure, including the risk of testosterone production would potentially further virilise her body and induce some irreversible changes (eg, development of a male physique, increased body hair, deepening of the voice).

The Court considered possible alternatives to the procedure, including hormonal suppression of puberty to prevent virilisation. It noted, however, that this would require three monthly injections, medical review and delay of any female pubertal development. This would have likely detrimental social, physical and psychological consequences, including anxiety, depression and confusion about gender identity.

Referring to Marion’s Case, the Court defined therapeutic medical treatment as treatment ‘administered for the chief purpose of preventing, removing or ameliorating a cosmetic deformity, a pathological condition or a psychiatric disorder, provided the treatment is appropriate for and proportionate to the purpose for which it is administered’. [xvi]

Some strong concerns have been raised about Re Carla and the legal position it represents. Anna Brown from the Human Rights Law Centre observed that Carla’s condition is “understood” to carry with it “a significant likelihood of growing up to identify as male. In this context, the proposal to confirm Carla’s female gender assignment through surgery appears somewhat unusual, if not alarming.” [xvii]

A detailed critique from OII (Australia) noted, inter alia:

  • earlier genital surgery that “enhanced” Carla’s genitals without court approval was viewed without concern, and with no evidence of necessity. The idea of “enhancing” the genitals of an infant or young child is disturbing;
  • sterilisation was justified using old data on cancer risks;
  • the cited data in support of sterilisation calls for monitoring gonads, not removing them;
  • gender stereotyping includes attitudes towards Carla’s body and potential future sexuality;
  • the sterilisation was seen as within the power of parents to authorise, thus taking sterilisation, as well as genital “enhancing” surgeries, out of court oversight and out of public view.[xviii]

Reform in this area

In 2013, the Senate Community Affairs References Committee undertook an inquiry that looked at involuntary or coerced sterilisation of intersex people. The Committee drew attention to medical practices that cause enormous harm for intersex people, and recommended that all medical treatment of intersex people take place under guidelines that ensure treatment is managed by multidisciplinary teams within a human rights framework.

While generally supportive, the Government’s 2015 response argues that responsibility for most of the relevant issues lies with state and territory governments. Victoria and the ACT have started processes to reform this area, but overall progress has been slow.

The Commission has recently started a project investigating how to protect the human rights of people with intersex variations / variations in sex characteristics in the context of medical interventions, including surgical and non-surgical interventions. Our aim is to work with key stakeholders, including those with lived experience and experts, to flesh out what a human rights approach looks like in this area.


Over the last 30 years, enormous progress has been made in recognising and addressing long-term inequality and injustice suffered by members of the LGBTI community. LGBTI trail-blazers have become leaders in law, politics, business and civil society.

Structural and legal barriers that disadvantaged LGBTI people are going or gone, but some important ones remain – and many of those relate more to a person’s sex or gender status than their sexual orientation.

Equality - It's in our chemistry


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  1. Jennifer Bendery, ‘Joe Biden: Transgender Discrimination Is ‘The Civil Rights Issue Of Our Time’, Huffington Post (online), 31 October 2010 (updated 1 November 2012). At (viewed 6 June 2017).
  2. Australian Human Rights Commission, Same-Sex: Same Entitlements (2007). Available at (viewed 6 June 2017).
  3. Australian Human Rights Commission, Sex Files: the legal recognition of sex in documents and government records, (2009). Available at (viewed 6 June 2017).
  4. Department of Foreign Affairs and Trade, Sex and Gender Diverse Passport Applicants, Australian Passport Office. At (viewed 6 June 2017).
  5. Australian Government, Australian Government Guidelines on the Recognition of Sex and Gender (2013) 5 [25]. At (viewed 6 June 2017). 
  6. Australian Government, Australian Government Guidelines on the Recognition of Sex and Gender (2013) 5 [24]. At (viewed 6 June 2017).
  7. Births, Deaths and Marriages Registration Act 1995 (NSW) s 32B.
  8. Births, Deaths and Marriages Registration Act 1995 (NSW) s 32A.
  9. In 2014, Alex Greenwich MP, Independent Member for Sydney and Mehreen Faruqi, MLC (Greens) co-sponsored the Births, Deaths and Marriages Registration Amendment (Change of Sex) Bill 2014 (NSW) to allow people to change the legal record of their sex without being unmarried. The Bill has lapsed.
  10. NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490 at 490.
  11. NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490 at 490.
  12. See: ACT Law Reform Advisory Council, Beyond the Binary: Legal Recognition of Sex and Gender Diversity in the ACT (2012) 10 [17], 38; Births Deaths and Marriages Registration Amendment Bill 2013 (ACT).
  13. AP v La France (European Court of Human Rights, Chamber, Application No 79885/12, 52471/13, 52596/13, 6 April 2017) [168]
  14. Johan Ahlander, ‘Sweden to offer Compensation for Transgender Sterilizations’ Reuters (online), (27 March 2017). At (viewed 6 June 2017).
  15. Re: Carla (Medical procedure) [2016] FamCA 7.
  16. Re: Carla (Medical procedure) [2016] FamCA 7, [45].
  17. Human Rights Case Summaries, Queensland Family Court approves sterilising surgery on 5 year old intersex child (20 January 2016) Human Rights Law Centre. At (viewed 6 June 2017)
  18. Morgan, The Family Court case Re: Carla (Medical procedure) [2016] FamCA 7 (8 December 2016) OII Australia – Intersex Australia. At (viewed 6 June 2017).
Mr Edward Santow, Human Rights Commissioner