Promoting and Protecting Human Rights in relation to Sexual Orientation, Gender Identity and Sex Characteristics A Manual for National Human Rights Institutions administrative procedures, opposes any medical requirements and asserts the rights of married people, parents, transgender youth and those in prison to obtain legal gender recognition.216 A small number of jurisdictions in this region, including Australia and Hong Kong, have recognised the right of transgender people who have legally changed their sex to legally marry as that sex. In 2001, the Family Court of Australia ruled that a transgender man who had undergone gender-affirming surgeries was recognised as male and his marriage to a woman was valid. The Australian Human Rights Commission intervened before the Full Court of the Family Court in an appeal by the Attorney-General against that judgement. The Commission highlighted the relevance of the principles of international human rights law in considering the interpretation of the word ‘man’ in the Marriage Act. These included guarantees of equality before the law and non-discrimination, the right to privacy and the entitlement of the family to protection by society and the State. The Commission also emphasised that recognition of the inherent dignity and worth of the human person underpins each of these rights. The Full Court upheld the original decision and found the marriage valid.217 In 2013, Hong Kong’s Court of Final Appeal, in W v. Registrar of Marriages, allowed a transgender woman who had undergone ‘sex reassignment surgery’ to marry her male partner. A High Level Roundtable on Gender Identity, Rights and the Law, held in Hong Kong on 2 October 2014, called for progressive gender recognition legislation in line with international and regional human rights.218 When marriage equality was introduced in New Zealand in 2013, amendments to the Marriage Act clarified that transgender people’s legal sex has no bearing on whether or not they can marry. Marriage is now defined in the Act as “the union of two people, regardless of their sex, sexual orientation, or gender identity”.219 3.5.5. Recognition of third gender options The April 2014 decision from the Indian Supreme Court decision recognises a third gender option, specifically for hijra, and also stipulates that all transgender people have the “right to decide their selfidentified gender … such as male, female or a third gender”. This is also the approach in passport policies in Australia and New Zealand and for birth certificates in one Australian jurisdiction.220 Three other South Asian countries – Bangladesh, Nepal and Pakistan – have recognised the specific status of hijras, metis, khwaja sira and other transgender people who identify as a third gender. However, implementation has typically been very slow. There are continuing issues across the region about ways to legally recognise and protect the rights of those who identify as third gender, while also providing the choice for transgender women to identify as female and transgender men to identify as male. 58 216 ‘WPATH Statement on Legal Recognition of Gender Identity’, 19 January 2015 at www.wpath.org/uploaded_files/140/files/ WPATH%20Statement%20on%20Legal%20Recognition%20of%20Gender%20Identity%201-19-15.pdf. 217 Re Kevin (Validity of Marriage of a Transsexual) [2001] FamCA 1074 and [2003] FamCA 94 at www.austlii.edu.au/au/cases/cth/ family_ct/2003/94.html. 218 Global Commission on HIV and the Law, ‘High-level Roundtable on Gender Identity, Rights and the Law’, 2 October 2014; at http://hivlawcommission.org/index.php/follow-up-stories/377-high-level-roundtable-on-gender-identity-rights-and-the-law. This vote reflected opposition both from those wanting more progressive laws and those who rejected any legal recognition of a transgender person’s marriage. 219 Marriage (Definition of Marriage) Amendment Act 2013. At the same time, section 30(2) of the Births, Deaths, Marriages and Relationships Registration Act 1995 was deleted. This had excluded someone who was married from amending the sex details on their birth certificate, as this would have changed the marriage to a same-sex marriage. 220 Open Society Foundations, License to Be Yourself: Laws and advocacy for legal gender recognition of trans people, 2014.