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Coonan v Registrar of Births, Deaths and Marriages [2020] QCAT 434

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Date: 11 November 2020
Court/Tribunal: Queensland Civil and Administrative Tribunal
Judicial Officer/Tribunal Member: Member Traves
Human Rights Act 2019 (Qld) Sections: ss 9, 15, 25, 26, 58, 108
Rights Considered: Right to recognition and equality before the law; Right to privacy and reputation; Right to protection of families and children
Other Legislation: Acts Interpretation Act 1954 (Qld) s 32B; Births, Deaths and Marriages Registration Act 2003 (Qld) ss 5, 6, 10A, 14, 33, 34, 40, 41, 42, 43, 49, Schedule 2; Births, Deaths and Marriages Registration Regulation 2015 (Qld), Schedule 1; Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 19, 20, 24
Keywords: Children and Families; Discrimination

This case involved an application for review of a decision made by the Registrar of Births, Deaths and Marriages to register the parent who gave birth to his child as the child’s ‘mother’, in circumstances where that parent identifies as male. The Tribunal briefly considered the right to recognition and equality before the law, the right to privacy and reputation and the right to protection of families and children (sections 15, 25 and 16 of the Human Rights Act 2019 (Qld)) but ultimately decided that as the proceedings commenced before the commencement of the Human Rights Act 2019 (Qld), it was not applicable.

The Tribunal conducted a review of the decision made by the Registrar of Births, Deaths and Marriages to list the applicant as the child’s ‘mother’ rather than the child’s ‘father’. The applicant was born female but identified as a man and in October 2012 amended his birth certificate and Australian passport to reflect his male gender and name. He retained the physical capacity to conceive and gave birth on 12 February 2019 and on 18 March 2019, using the approved form to register the birth of his child, listed himself as the father and provided that he was a transgender man, who gave birth to the child conceived via IVF: at [19]. Further documentation was provided in support of his successful reassignment of gender upon request by the Registry. The Registrar notified the applicant on 11 April 2019 that as he was the person who gave birth, he was recorded as the mother on the birth registration: at [21]. The Tribunal confirmed this interpretation of ‘mother’: at [59], [61] and [64].

The applicant submitted that the relevant human rights under Human Rights Act 2019 (Qld) were the right to equal protection of the law without discrimination, the right not to have privacy or family unlawfully interfered with and the right to protection of family: at [10]. However, as the legal proceedings commenced in June 2019, prior to the commencement of the Human Rights Act 2019 (Qld), the Human Rights Act 2019 (Qld) was held not to apply in this case: at [75].

The Tribunal held that the rights of children should still be taken into account and discussed the balance between the rights of parents who have undergone sexual reassignment and the rights of the child. The Tribunal considered a similar case from the United Kingdom: at [79]. This case concerned a transgender man, who had given birth to a child and had been registered as the child’s mother, who sought to be registered as the child’s ‘father’, ‘parent’ or ‘gestational parent’: at [79]-[84]. The Court in that case held that the legislation required the male parent to be listed as the ‘mother’ because it defined ‘mother’ as a person who gives birth to a child: at [81]. The Court accepted that this requirement was a ‘significant interference with a person’s sense of their own identity’ and was not compatible with the right to respect for private life: at [82] However, the interference was held to be justified, as the legislation served to protect the rights of children to know who gave birth to them and what that person’s status was: at [82]-[83].

The Tribunal noted that the Births, Deaths and Marriages Registration Act 2003 (Qld) served a similar purpose in enabling a child to identify the person who gave birth to them, and concluded that the correct and preferable construction of the Births, Deaths and Marriages Act 2003 (Qld) was to register the applicant as the child’s mother: at [79] and [85].

Visit the judegement:  Coonan v Registrar of Births, Deaths and Marriages [2020] QCAT 434