Gender and gender identity
In this section, we talk about rights for transgender people who identify as either male or female. However, we recognise that transgender people can identify across the spectrum of genders.
Your official identity records
What gender options can I choose for my passport, birth certificate and other official documents?
Your passport and birth certificate have three options for gender.
- Your passport can show your gender as F (female), M (male) or X (indeterminate). You can self-identify as one of these options on your passport, including “X”. You don’t need to provide medical evidence about your gender, or to have first changed your gender details anywhere else in order to choose one of these options. See “Changing gender markers and names” for more information.
- On your birth certificate there are also three options; your sex can be F (female), M (male) or I (capital i for “indeterminate”). However, with birth certificates you can only have “I” listed if your doctor recorded your sex as indeterminate when you were born. This is a problem if you did not have ‘I’ recorded when you were born, but now identify this as the best gender marker for your birth certificate.
Note: Some other organisations will offer a third gender or other gender options when you are filling out their forms, and some will not.
How can I change my gender on official records like my birth certificate and passport?
It is relatively easy to change your gender on your passport, driver’s licence and health records.
Changing your birth certificate is more difficult because under current law you have to apply through the Family Court and must have had “irreversible medical change” to conform to the sex you wish to have listed. However, there are signs the law may soon change to make things easier.
For more information about the current process, see “Changing gender markers and names” later in this chapter.
Proving your gender identity
What if I’m asked for proof of my gender identity?
Government and private organisations can require you to provide proof of your identity when you’re dealing with them, but you shouldn’t be asked to provide more proof than a cisgender person (a person who is not transgender).
If you are asked for a higher standard of proof than other people, you could complain to the Human Rights Commission (see in this chapter, “Discrimination based on sex, gender or sexual orientation”).
If you think an organisation is treating transgender and cisgender people differently, one option for taking action is to start by asking the agency for both its cisgender and transgender policies. This would allow you to compare the policies, make sure the organisation is in fact acting within its policies, and possibly encourage change.
You can ask for the information formally under the Official Information Act 1982 (for more details see the chapter “Dealing with government agencies”). If you’re dealing with a private business, getting their policies can be more difficult, because there are different rules about what information they have to make publicly available. For support you can contact your local Community Law Centre.
Your clothes and appearance
Uniforms and appearance at work and school
Schools and workplaces can require you to wear a uniform or to follow a dress code.
Uniforms at school can be assigned along gender binary lines (male and female) as long as the effect of having the different uniforms isn’t discriminatory. For example, if boys have to wear pants and girls have to wear long skirts that limit their physical movement, this could be illegal discrimination.
If you identify as female or male, you have the right to dress in the uniform or dress code of the gender you identify with. You should not be required to wear some third option if you don’t want to. This is true at school, at dances, at work and in any other areas of public life.
If you fall outside the gender binary and don’t identify with either the male or female gender, the law is less clear. You could try to use this gender equality rule to ask for an appropriate middle-ground uniform to be made available.
Toilets and bathrooms
Toilets at work and school
In school and at work you have the right to use the toilet of the gender you identify with.
Dealing with health professionals: Your right to respect, good quality care, privacy and support
When you go to doctors, nurses and other health professionals, transgender people have the same rights to respect, good quality care, privacy, support people and complaints procedures as anyone else.
These are some of the specific rights you have:
- Respectful treatment – If a doctor or other health professional makes inappropriate comments to you about your gender or your body, this may be a breach of your rights.
- Good quality care – You have the right to medical services of an appropriate standard. The standard is determined by the medical profession generally, and it should be the same for transgender and cisgender people. This includes a right to access medical treatments such as hormones. (See “Gender-affirming surgery and treatment” in this chapter.)
- Physical privacy – Health professionals should give you privacy when you’re changing clothes, and a drape when they’re physically examining you.
- Support – You have the right to bring a support person of your choice with you to any medical appointment.
If you’re not happy with your treatment from a doctor or some other health or disability service, you have the right to complain. If you’ve already complained to the particular service or health professional, you can complain to an independent Health and Disability Advocate or to the Health and Disability Commissioner.
For more information, see the chapter “Disability rights”, under “Health and disability services: Your rights and how to enforce them”.
Prisons and transgender and non-binary people
Transgender people in prison
Transgender people in prison can ask to be in a prison that matches their gender identity. The Department of Corrections, which runs the prison system, has a detailed process to deal with these requests and aims to provide flexibility.
If prison staff have access to your birth certificate, the starting point is that you must be put in a prison that matches the sex on your birth certificate. If this doesn’t match your gender identity, you can ask to be moved to a prison that does match your gender identity. (To find out how to change your birth certificate, see “Changing gender markers and names” in this section.)
If your birth certificate records “indeterminate sex” or “no sex”, then your placement must be automatically reviewed by the prison system.
If you have convictions for sexual offences, you can’t be transferred to a prison housing people of the gender you were convicted of offending against.
Non-binary people in prison
It’s possible that the Department of Corrections may choose to use the same process for non-binary people as is available to transgender prisoners when they apply to be placed in a gendered prison. Their Prison Operations Manual, in its section on “Management of transgender prisoners”, says that “A person’s ability to identify with a particular gender, or no gender, must be respected.”