The Australian Government has guidelines on the recognition of sex and gender. They are available to access via the Attorney General's website.
In particular the guidelines provide that where sex and/or gender information is collected and recorded in a personal record by a government agency, individuals should be given the option to select M (male), F (female) or X (Indeterminate/Intersex/Unspecified).
The guidelines also provide the processes for changing sex or gender information across Australian Government records.
The Births, Deaths and Marriages Registration Act 1996 (SA) provides for persons born in South Australia to apply to change the registration of their sex or gender identity. It also provides for those who are resident in South Australia, but who were born outside of Australia, to apply for an identity acknowledgement certificate [Births, Deaths and Marriages Registration Act 1996 (SA) Part 4A]. The application must specify a sex or gender of a kind recognised under the Births, Deaths and Marriages Registration Regulations 2011 (SA) [reg 7A]:
- non-binary or
These applications may be made even if the person is married.
Prior to 23 May 2017, recognition certificates were issued by the Magistrates Court under the Sexual Reassignment Act 1988 (SA), which is now repealed, and these were then registerable with the office for Births, Death and Marriages. The Sexual Reassignment Regulations 2015 (SA) continues to provide for this registration, for those recognition certificates issued by the Court but not yet registered.
Persons born in South Australia
A person whose birth is registered in South Australia and is 18 years of age or over may apply to the Registrar of Births Deaths and Marriages to register a change of their sex or gender identity [s 29I].
Material supporting application
An application to register a change of sex or gender identity must be accompanied by either [s 29K]:
- a statement by a medical practitioner or psychologist certifying that the person has undertaken a sufficient amount of appropriate clinical treatment in relation to the person’s sex or gender identity; or
- a copy of a designated certificate (a certificate from another jurisdiction) or a prescribed notification (a notification from another jurisdiction)
Persons born outside Australia but resident in South Australia
A person who was born outside Australia and whose birth is not registered in any State or Territory of Australia, but who is 18 years of age or over and who has been resident in South Australia for at least 12 consecutive months before making an application, may apply to the Registrar for an identity acknowledgment certificate [s 29O]. These applications must also be accompanied by a statement by a medical practitioner or psychologist certifying that the person has undertaken a sufficient amount of appropriate clinical treatment in relation to the person’s sex or gender identity.
Applications by children
For those under the age of 18, the Magistrates Court must first approve the making of the application. Approval may be granted if the Court is satisfied that it would be in the best interests of the child [ss 29J and 29P]. A child is taken to have the capacity to make an application.
Access to register and issue of extracts or certificates
Extracts and certificates issued after the person has registered a change to their sex or gender identity must only disclose and certify up-to-date details [s 29M(1)]. This means that a birth certificate issued following a registration of change will certify the person’s registered sex or gender identity at that time.
Only the person who has registered the change to their sex or gender identity, their partner, parent, child, the executor or administrator of their estate, or a legal practitioner authorised by them, are allowed to access information from and be issued with an extract or certificate as to the person’s sex or gender identity before registration of the change [see s 29M(2)(b) and reg 7D]. An officer or employee of state or federal police and other like authorities may also apply.
Entitlements under will, trust or other instruments
A person’s entitlement under a will, trust or other instrument is not affected by a change to the person’s sex or gender identity, unless the will, trust or other instrument specifically provides otherwise [s 29T].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.