Legal gender affirmation

In NSW, a trans person is required to submit two statutory declarations signed by two different registered medical practitioners and at least three forms of ID to update the gender marker on their birth certificate or Recognised Details Certificate.

These are to confirm that the person has undergone a “sex affirmation procedure”, such as GRS, or an orchidectomy. Currently top surgery, breast implants and facial surgery are not counted as a sex affirmation procedures for this purpose.

Patients from other Australian states, territories, and countries will have different legal requirements to change the name and gender marker on their birth certificate.

An application can be made to update a legal gender marker in NSW if a person:

• is aged 18 years or older or are the parent/s or guardian of a child, and

• has undergone a sex affirmation procedure

• was registered in NSW at birth, or

• was not registered in Australia but the applicant is an Australian citizen or permanent resident and has lived in NSW for at least one year.

Steps taken with clinicians

1. A patient presents to a doctor seeking to update the gender marker on their birth certificate.

2. Doctor confirms that they have had a surgical affirmation procedure (see Examinations below for more information).

3. The doctor then completes the statutory declaration section of their ‘Change of Sex’ form confirming the patient has had the requisite surgical affirmation procedure.

4. Paperwork needs to be signed in the presence of an authorised witness. The witness is required to endorse your signature, not that the patient has had surgery. They do not need to be in the room, or to see the patient.

5. The statutory declaration can then be provided to the patient for their application.

The NSW Births, Deaths and Marriages Registration Act 19951 states that registered medical practitioners need to have examined a patient to confirm that they have had a surgical intervention. Understandably, some trans people find being examined in order to legally affirm their gender humiliating or harmful. This needs to be carefully considered and conducted accordingly to minimise this harm.

Some doctors will ask their patient to explain the details of the surgery that was undertaken and what was involved, minimising the need for a physical examination. Some doctors also talk with their patient about what is involved with a medical examination and other reasons it can be helpful, apart from legal gender affirmation. For example, doing a genital examination post-operatively to assess for complications or wound healing as part of post-surgical care.

A trans person seeking to update the gender marker listed for them with some government records and/or their passport, can do so without requiring any surgical interventions at all.

Personal records kept by federal agencies including Medicare, Centrelink and the Australian Tax Office, or with Transport for NSW can be updated with a statement from a registered medical practitioner or a psychologist that verifies their gender.

Updating the gender marker on an Australian passport currently requires2 a “statement from a registered medical practitioner or psychologist that you have had or are receiving appropriate clinical treatment for gender transition”.

We’ve developed a statement template here you can use to support your trans patients in this endeavour.