Damien Carrick: Hello, welcome to the Law Report, Damien Carrick with you. Today, the case of the 18-year-old German tourist, brutally bashed by bikies. He later identified his main attacker from a series of photos. But should that evidence have been admitted in the criminal trial? That's coming up.

First to a recent decision of the United Nations Human Rights Committee in favour of a married, transgender woman named Grace. She has fought two legal battles now around gender identification on official documents.

The first some years ago now related to her passport. The second, the recent case, focussed on her birth certificate, which Grace says should reflect who you are now, irrespective of your marital status.

Grace: Because, number one, it reflects current reality. After SRS, sex reassignment surgery, you do have female genitalia, and I live, work, eat, breathe and sleep as a female. And when your birth certificate says male and you're female and you're standing in front of somebody who is saying, 'Are you sure this is you? Why is this a different picture?' And outs you as being trans and forces you to go into all the gory details, which you don't want to have to do if everybody…when you're going for work it gives them instantly a reason not to process you any further. So it opens a door to discrimination.

Damien Carrick: Grace began her transition in 2002. In July 2005, Grace was issued with an interim female passport that would allow her to travel to Thailand for sex reassignment surgery. In September 2005 she married her female partner. Because she was still legally speaking a man, this complied with the requirements of the Marriage Act

A month later she travelled to Thailand on her new interim female passport for the surgery. Then in January 2006 she applied to change her birth certificate but was told this was not possible because of her marriage.

Grace: So as part of the processing going to have surgery, I married my partner at the time because…

Damien Carrick: A female.

Grace: That's right. There was no barrier to that because administratively and on my birth certificate I was male. But the reason for doing that was so that there was some level of protection if the wheels fell off having surgery, so my partner has some kind of recognition and right over me if I'm incapacitated or dead or whatever.

There's such a thing called the interim passport law, which means that you can pre-emptively apply for a passport in your post surgical sex so that you don't get arrested and jailed for having incorrect documentation, such as happened with a girl called Crystal in Singapore.

I got the passport in the female sex, travelled over to Thailand, had surgery, came back with all my documentation. Usually they just rubberstamp the passport, and because you've already paid for a 10-year one, so it becomes a full 10-year validity from that point and off you go. If you're single. However, if you're married you can't get your birth certificate amended and therefore they won't do your passport.

And so I had to take DFAT to court and we appealed it and went to the Administrative Appeals Tribunal. And to cut the story a bit shorter, I ended up with a passport and they changed the ruling so that you can have a full validity passport, despite what your birth certificate says, because there are differences in states and also that it is a completely different set of law. Passport law has nothing to do with the Marriage Act.

Then I took my passport and all my other documentation to Births, Deaths and Marriages and tried to get a birth certificate to catch up, and of course they wouldn't, citing the Marriage Act again, and there it stayed. I tried all the other avenues, nothing doing. And so it went to the UN.

Damien Carrick: You effectively pushed the envelope when it came to the laws and the rules around passports, and you're effectively changed the law for all other Australians.

Grace: That's right.

Damien Carrick: Can I just check, prior to you doing that, the government were happy to give you a female passport when you were, for want of a better term, surgically male…I'm sorry, I don't know the correct term…

Grace: That's all right.

Damien Carrick: So you travelled to Thailand, you had the surgery, you come back to Australia, then they say we are happy to provide you with…

Grace: A male passport, once I had girl bits. I had boy bits, they want to give me a female passport, and with girl bits they want to give me a male passport. Go figure. That's bureaucracy for you.

Damien Carrick: A pretty confused state of affairs.

Grace: Yes, to say the least.

Damien Carrick: So, moving forward, you're now at a state where you want to get your birth certificate changed. You exhaust all your legal options here in Australia, you go to the UN Human Rights Committee and the government I think argues there, look, what we're doing here isn't an arbitrary infringement of your rights, it is reasonable and proportionate to the aim of ensuring consistency with the Marriage Act, which defines marriage as between a man and a woman.

Grace: It introduces an inconsistency with everything else, and surely the utility of reflecting a person's current and lived reality overweighs their administrative one about whether or not people look like they have a same-sex marriage. There are other cases that are anomalous to being married overseas and things like that. There are cases where you will have a same-sex marriage. But as it turns out, I ended up being one of the first people in Australia to have a federally recognised same-sex marriage because a passport is Federal documentation.

Damien Carrick: The really interesting thing is you broke down the barrier with respect to passports and then you used that argument about, well, the Feds don't have a problem with changing passports, why should the states and territories have a problem with changing birth certificates.

Grace: That's right, yes.

Damien Carrick: You've won this case, this determination by the Human Rights Committee, but at the end of the day it's just a determination by a committee. The Australian government is going to nod politely and say, 'Thank you very much United Nations, big deal.'

Grace: 'Get lost', yeah. But in any case there is a spotlight on it, internationally speaking. You know, GLBT people exist, and how about us having some human rights as well, the right to identification, the right to correct administrative roles, the right to a family. And that's one of the big things, if you have kids, you are expected to divorce just so you can have your gender recognised by bureaucracy, or divorce and possibly lose custody of your kid, not have your relationship recognised. And the state actually directs you to commit perjury by stating that there's an irretrievable breakdown in the relationship, when there is not one. And I don't think anybody has even really considered that part of it. But the Birth, Deaths and Marriages tells you that you have to divorce. To do that you've got to state an untruth, that the relationship has broken down. And if it hasn't and you're perfectly happy in your relationship, that is an unreasonable expectation of anybody, and it goes against every tenet of our law, to instruct somebody to break another law just so they can tick a box. That's bullshit.

Damien Carrick: Is there a sense though…people listening to this might be thinking you were trying to pursue two mutually exclusive paths…

Grace: Why are they mutually exclusive?

Damien Carrick: Well, I'm not saying that they are mutually exclusive because that's the right state of affairs but…

Grace: Well, they're mutually exclusive under the current state of law, but that's the point, they shouldn't be, and they are arbitrarily so. Just because you don't have a tick in that box or a tick in that box, what, people don't have same-sex unions? People don't have trans issues? The administrative reality has to catch up with actual reality, not the other way around. The tail doesn't wag the dog. Births, Deaths and Marriages' job is to record reality, not to direct it, that is not their job. They don't get to tell people how to live their lives, they record how people live and who they are and what they are doing, not the other way around.

Damien Carrick: Grace.

The Australian government, which was standing in the shoes of the New South Wales government, argued in the UN Human Rights Committee that changing the birth certificate would lead to a same sex marriage and this would be inconsistent with the Marriage Act.

Grace's lawyer is Emily Christie from DLA Piper. Emily say this argument didn't fly with the UN Committee.

Emily Christie: The Human Rights Committee disagreed, and they pointed out that consistency with the Marriage Act really isn't a good enough argument, that having a birth certificate that says your correct gender or sex is so important, that it actually really trumps any of the other arguments.

They pointed to a number of reasons why. The first is that we already have inconsistency between documents in Australia. So there's no reason why a person should be able to have a passport that says female and not a birth certificate that says female in relation to inconsistency. They also pointed to the fact that if somebody is married overseas and then changes their gender, that their overseas marriage is still considered valid in Australia, and that's because we look at the point that the marriage is solemnised, not later on.

And then the final point they made was that they really questioned why the Australian government didn't consider it more important for a person to have their documents reflect reality in terms of security, in terms of government administration, surely a birth certificate should be reflecting who a person actually is rather than trying to create consistency between two laws. And so for that reason they said it is not necessary, it's not proportionate, and it is therefore a breach of privacy that is not justified.

Damien Carrick: Okay, big victory, UN Human Rights Committee, but at the end of the day, the Australian government is going to say, look, thank you very much, nice committee decision, but it's not actually binding on Australia, is it, it's just simply the United Nations Human Rights Committee expressing its opinion about what it would like to see.

Emily Christie: It is. It can have some affect in Australia and elsewhere in the way that, for example, courts interpret laws and rights, so that helps. It also can be used as a really strong lobbying tool because while it's a decision about Australia, the decision actually applies internationally.

The other thing that it can do is it can give the Federal government, if it wishes, a mandate to work on that particular issue. As we know, the Australian government can only pass laws in relation to the Constitution, and the Constitution includes external affairs. And we saw that in the case of Toonen in Australia. So when Tasmania had laws around criminalising same-sex relations, that went to the UN Human Rights Committee, and because the UN Human Rights Committee said it was a breach of privacy, similar to this one, that gave the Australian government the wherewithal to make laws to overrule Tasmania. So it does have some effect in different ways, but the strongest one is a validation of transpeople's rights and how important it is to have those gender identity documents. And I think that in and of itself is incredibly important.

Damien Carrick: Where does Australia sit vis-a-vis other equivalent western countries?

Emily Christie: Interestingly enough in Australia we've seen some changes. So it's difficult to talk about all of Australia. So South Australia and the ACT have recently changed their laws on this. In both the ACT and South Australia you no longer have to get divorced in order to change your birth certificate. The marriage requirement has been taken away, which is fantastic, and they've also taken away the requirement to have surgery.

Damien Carrick: DLA Piper human rights lawyer Emily Christie.

So if Grace was born in the ACT or South Australia she would have been able to change her birth certificate irrespective of her marriage.

Ed Sandow is the Australian Human Rights Commissioner with responsibility for LGBT rights. He says, in most parts of Australia there are two onerous requirements. The first is the marriage requirement or rather the divorce requirement, which affected Grace. The second, which probably affects a much larger group of people, is a requirement to first undergo sex reassignment surgery.

Ed Santow: It's a very invasive requirement. I should hasten to say it's becoming highly unusual. Most of the countries that we would usually compare ourselves to, like the UK, Ireland, Germany, France, Norway and Sweden, and many others besides, have no such requirement at all. Essentially what it means is that a person who wants to change the sex recorded on birth certificates has to undergo major surgery; in an anatomical sense, change their sex characteristics. That can have all kinds of very serious side effects. It can mean someone becomes infertile. It can also have other very serious health and psychological effects.

Damien Carrick: Just to clarify, you need to have gender reassignment surgery before you can change any of your official documents at the state level, so the birth certificate, what have you?

Ed Santow: That's correct, but in Australia that starting to change. So in South Australia and Western Australia they've gone some of the way to change that. They no longer require surgery but they do require someone has at least had hormonal treatment. And then the ACT and the Federal government have gone further still and they've now said that all you require is at least to have had some counselling from a medical professional, and that they then certify.

We still think that you could go even further, which is to simply allow people to affirm. There is no evidence that there's some great benefit to be gained from changing the legal record of your sex. And so it's far better and it seems to be the best practice worldwide simply to allow people to affirm what is their sex or gender.

Damien Carrick: Their lived reality as opposed to complying with some kind of medical definition.

Ed Santow: Precisely, and in Australian law and in practice, the cardinal document for your identification is your birth certificate, so in a sense that is the most important thing to get right. And at the moment we have a situation where these two additional requirements are incredibly invasive, and now the UN Human Rights Committee is telling us that it is also contrary to human rights to have at least one of these requirements.

Damien Carrick: Ed Santow, the Human Rights Commissioner with responsibility for LGBT Australians.

And a postscript: Grace tells me that she and her spouse divorced last year. Grace says the stress of the long legal struggle was a factor that contributed to the demise of the couple's marriage. Ironically, because of the divorce, Grace was able to change her birth certificate. It sounds like that achievement came at a very high price.

Grace hopes the UN Human Rights Committee decision will lead to law reform and that will make things easier for other families.

I'm Damien Carrick. You're listening to the Law Report, broadcast on ABC RN, and available as a podcast from the RN website, the ABC app and at iTunes.