Understanding Australia’s Human Rights Obligations in Relation to Transsexuals: Privacy and Marriage in the Australian Context

Abstract

This article examines recent European jurisprudence on the rights of transsexuals to privacy and marriage. The authors argue that Australia’ s obligations under the ICCPR should be understood in light of this jurisprudence. On this basis, Australia is obliged to ensure that its authorities: (a) legally recognise the changed gender of post-operative transsexuals; and (b) permit the marriage of post-operative trans- sexuals to persons of the opposite gender to their re-assigned gender. The authors note the continuing uncertainty around the extension of these rights to transsexuals who have not had ‘surgery’ but argue in favour of extending ICCPR rights in this way. The authors also consider the legal situation regarding privacy and marriage for transsexuals in Australia. Like the international jurisprudence, Australian laws have not dealt with the situation of transsexuals who have not had surgery. The authors argue that legal distinctions based on the surgical model are more about providing certainty than they are about ensuring the rights and dignity of the people affected. Given Australia’s human rights obligations, it would be more appropriate for consideration to be given to the full range of social and cultural factors that affect whether a person is considered to be a man or a woman.