A bill currently before the Victorian parliament would allow people in the state to choose the sex listed on their birth certificates.
The Births, Deaths and Marriages Registration Amendment Bill 2019 has passed its second reading in the lower house. Despite opposition from the Coalition, it looks set to pass the upper house this month, with the support of three key crossbench MPs.
The new law would require only a statutory declaration that a person believes him or herself to be the nominated sex, along with a supporting statement from another person.
Read more: Explainer: why removing sex from birth certificates matters to gender diverse people
The only Australian state to have passed similar legislation is Tasmania, which voted to make gender optional on birth certificates early this year.
Of the remaining states and territories, three require sex reassignment surgery to change how sex is listed on a birth certificate (Victoria, New South Wales, and Queensland), while four require “clinical treatment” (ACT, South Australia, the Northern Territory, and Western Australia), for example, hormone therapy or counselling.
Why sex and gender identity are different
This bill makes a fundamental change to the legal classification of sex. That is something we all have a stake in, and a reason we should all give the bill more consideration.
As the law currently stands, sex is either biological (as observed at birth and recorded on birth certificates) or altered (as obtained through sex reassignment surgery). In both cases, it is defined by clear physical attributes.
The bill replaces these physical understandings of sex with something entirely different: gender identity. Gender identity is something internal to a person – the way they feel about themselves.
Yet, the bill considers gender identity to be equivalent to the physical understanding of “sex” - so much so that if a person makes a statutory declaration as to their gender identity, they acquire a new legal sex.
Read more: What’s the point of sex? It frames gender expression and identity – or does it?
Single-sex provisions under the law
Although the bill has wide support in the LGBTQI community, some feminists are opposed to it, for two main reasons.
First, it is unclear how the bill will interact with existing laws that deal with sex, including the Victorian Equal Opportunity Act and the Charter of Human Rights and Responsibilities.
Earlier this month, a Victorian parliamentary committee agreed there was a lack of clarity around how the bill could impact existing single-sex provisions in the Equal Opportunity Act.
Discrimination on the basis of sex is not generally permitted under the act, but some exceptions allow for it. These exceptions include for single-sex schools, the single-sex hiring for certain jobs, single-sex sleeping arrangements in hostels, and single-sex sport leagues.
The committee noted the possible impact on these provisions with the change to the birth certificate law:
The committee observes that the effect […] may be that existing exceptions to the Equal Opportunity Act 2010 that permit discrimination on the basis of sex will not permit discrimination on the basis of the previous sex of a person who has successfully applied to have their believed sex recorded in a birth certificate.
This is a problem because many women still suffer sex discrimination and sex-based violence and benefit from these single-sex provisions under the law.
It’s also a problem because if a feminine gender identity is sufficient grounds to qualify as being “female” under the law, then all the exemptions for single-sex services listed in the Equal Opportunity Act become de facto mixed-sex.
Read more: Single-sex vs coeducational schools: how parents can decide the best option for their child
More consultation with women is needed
The second primary reason some feminists are opposed to the bill is the fact there has not been enough consultation with women, despite the fact this change will likely impact women by increasing the number of male-born people in women’s sports and single-sex spaces.
There hasn’t been enough research done to assess whether the interests served by single-sex spaces (privacy, dignity, freedom of thought and association, according to the Statement of Compatibility for the Equal Opportunity Bill 2010) will be damaged by making women’s spaces mixed-sex.
Nor do we know whether women — particularly those who have survived trauma inflicted by male-bodied people, but also women from religious and cultural groups that practice some sex segregation — will begin to exclude themselves from women’s spaces once they are mixed-sex. There is a risk that trans-inclusion will come at the expense of women.
Both the Northern Territory and Queensland took submissions from or consulted with the public before making changes to their laws.
In New Zealand, a similar bill was deferred earlier this year to give more consideration to the “legal implications” of the measure and to allow “adequate public consultation”.
The Scottish parliament has put similar changes to its gender recognition laws on hold because of concerns the consultation process was inadequate, particularly with regard to the potential impact on single-sex spaces.
England and Wales allowed for a four-month submission process last year on whether a change to the law was necessary.
An online survey in the UK conducted after the consultation process found that 60% of people thought trans women should not be allowed to compete in women’s sport, and 59% thought a trans woman with a penis should not be free to use a women’s changing room.
The poll was conducted by the UK research group Populus and published by the group Fair Play for Women, an advocacy group aiming to provide evidence-based research on the impact of transgender law reforms on women.
We have not had a similar broad consultation process in Victoria, despite efforts by opponents to discuss their concerns with Attorney-General Jill Hennessy.
We have a long way to go before we understand the impact of bills like this, so we should follow in the footsteps of New Zealand, Scotland, England and Wales and give the bill the proper consideration before making changes that could be detrimental to women.
Correction: This article has been amended since publication to clarify the current law in Western Australia.