A reassignment procedure is “a medical or surgical procedure (or a combination of such procedures) to alter the genitals and other sexual characteristics of a person, identified by birth certificate as male or female, so that the person will be identified as a person of the opposite sex and includes, in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child's sexual characteristics” [s 3 Sexual Reassignment Act 1988].
“Sexual characteristics” means the physical characteristics by virtue of which a person is identified as male or female [s 3].
A reassignment procedure can only be carried out at an approved hospital by a medical practitioner who has been authorised to carry out such procedures [s 6].
Any approved hospital will have services to provide appropriate counselling and care for people undergoing reassignment [s 6].
A recognition certificate identifies a person who has undergone a reassignment procedure as being of the sex to which the person has been reassigned [s 3].
A person who has undergone a reassignment procedure in South Australia, or a person who has undergone a reassignment procedure and whose birth is registered in South Australia [s 7(8)], may apply for a ‘recognition certificate’ through the Magistrates Court. If the person is a child, the child’s guardian must apply [s 7(3)].
A recognition certificate may be issued to an adult if the magistrate is satisfied that the applicant [s 7 (8)(b)]:
- believes that his or her true sex is the sex to which they have been reassigned
- has adopted the lifestyle and has the sexual characteristics of a person of the sex to which the person has been reassigned
- has received proper counselling in relation to his or her sexual identity.
A recognition certificate may be issued to a child if the magistrate is satisfied that it is in the best interests of the child that the certificate be issued [s 7(9)].
A recognition certificate cannot be issued to a person who is married [s 7(10)].
applying for a recognition certificate
An application must be made using the form set out in the Sexual Reassignment Regulations 2015 [s 7(4)]. A fee set by the Regulations applies.
The application must be accompanied by [reg 5]:
- an affidavit, sworn by a medical practitioner, relating to the reassignment procedure that has been carried out and any associated treatment that has been provided to the person to whom the application relates
- if the application relates to an adult, an affidavit, sworn by a psychiatrist or psychologist, relating to the counselling that the person has received in relation to his or her sexual identity
- a certified birth certificate.
A copy of the application must be served on the relevant Minister (the Minister responsible for the administration of the Health Care Act 2008) and any other person who should, in the magistrate's opinion, be served with notice of the application [s 7(5)]. If the magistrate has indicated a person should be given notice of the application, that person is entitled to appear at the hearing of the application and to make submissions to the magistrate [s 7(6)].
In considering an application, the magistrate is not bound by the rules of evidence, but may inform himself or herself on any matter in such manner as the magistrate thinks fit [s 7(7)].
appealing a decision in relation a recognition certificate
A decision of a magistrate in relation to an application for a recognition certificate can be appealed to the Supreme Court within one calendar month of the person appealing receiving notice of the magistrate’s decision [s 11]. On appeal, the Supreme Court can issue a certificate or cancel a certificate, and make any other related orders [s 11].
registering a recognition certificate
If a person wishes to have a recognition certificate registered, this can be done through Births, Deaths and Marriages after one month from when the certificate was issued [s 9]. If an appeal has been made, the appeal must be finalised first. Contact the office (ph: 131 882) for the form that has to be completed and to find out the fee. The certificate will be registered in the Register of Reassignments of Sex [reg 7].
The Registrar of Births, Deaths and Marriages must “make such other entries and alterations on any register or index kept by the Registrar as may be necessary in view of the reassignment” [s 9(1)]. In other words, if the person who has been issued with a recognition certificate has a birth certificate registered in South Australia, the birth certificate will be amended. The original certificate will be marked as having been altered [reg 7(4)].
accessing information regarding reassignment
- the Register of Reassignments of Sex or
- any other register that identifies the person to whom the entry relates as a person whose sex has been reassigned
can only be given to the person to whom an entry in a register relates; or if the person to whom an entry in a register relates is a child—the guardian of the child; or a person acting under the authority of an order of the Supreme Court [reg 7].
Information from a register entry that has been altered due to registration of a recognition certificate can be given to another person to whom the entry also relates [reg 7(5)].
Access to information held by hospitals in relation to sexual reassignment is strictly regulated [reg 8].
Hospitals involved in reassignment procedures or associated treatment must provide confidential reports to the relevant Minister with details of the patients and doctors concerned, and the treatment and counselling given [reg 9].
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.