Violations: ICCPR art 17, ICCPR art 26
[Australia] is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. Accordingly, [Australia] is obligated, inter alia, to provide the author with a birth certificate consistent with her sex. [Australia must also] prevent similar violations in the future [by revising] its legislation to ensure compliance with the Covenant.
Ms G is a transgender woman. Registered as male at birth, she grew to identify as female. She changed her name on her birth certificate and had her driver’s license, Medicare card and credit cards reissued in her new name and successfully applied for a passport in her new name and gender. She married a woman, and subsequently underwent gender affirmation surgery.
Australian law provides for new identity documents for transgender persons and prohibits discrimination against them, but, because Australia did not, at the time, permit same-sex marriage, its States and Territories could not change the gender on the birth certificate of someone who was married. The same restriction did not apply to other identity documents, such as passports. Australia failed to explain why passports of married transgender persons could be changed, but not their birth certificates.
As it is, Ms G’s birth certificate states that she was born male, but presents and identifies female. It thereby reveals private information about the fact that she is transgender. Not only is this an invasion of privacy (art 17) – which includes the right to control her identity and information about her medical history and the fact that she is transgender – but it can expose her to “vilification, harassment and discrimination” (para. 2.8). Ms G has avoided and withdrawn from processes in which a birth certificate is or may be required.
Requiring Ms G to divorce in order to obtain a birth certificate that correctly identifies her gender is arbitrary interference with her right to family, also article 17. The NSW Anti-Discrimination Board and the Australian Human Rights Commission have both recommended that married persons be permitted to change the sex on their birth certificate, but the NSW government has not implemented this recommendation.
Further, “by denying transgender persons who are married a birth certificate that correctly identifies their sex, in contrast to unmarried transgender and non-transgender persons, the government is failing to afford the author and similarly situated individuals equal protection under the law” (para. 7.14).
The Committee found that Ms G has suffered arbitrary interference with her privacy and family (art 17), and is being discriminated against on the basis of her marital status and her transgender identity (art 26).