Statutes Amendment (Gender Identity and Equity) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 February 2016.)

The Hon. S.E. CLOSE (Port Adelaide—Minister for Education and Child Development, Minister for Higher Education and Skills) (12:15): Having only recently spoken on this bill, I will not make a long closing second reading speech. I merely thank all those who have been involved in preparing this bill, and I thank all contributors for their thoughtful contributions. I urge that as we consider what is, essentially, a bill of tidying up language and removing unnecessary discrimination between men and women, that this bill be supported in its entirety.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

Mr KNOLL: In the definition of 'gender identity'—and I suppose this is a little bit fundamental—we are obviously quoting a definition within the act of 'gender identity' separate from 'sex'. I appreciate and understand why we are doing it, but I am wondering whether any thought has been given, in drafting this definition, to where it is expected that this definition will be used in practice? We are putting it in there, and I assume it is not just as a token: 'Let's chuck it in there.' I assume it will have some practical or legal purpose, and I would be interested to know where it will have effect?

The Hon. S.E. CLOSE: Accepting the term 'gender identity' in the Acts Interpretation Act means that any time the term 'gender identity' is used in any act in the future, and through any amendment process, it will contain the meaning that is captured here. A specific example that this bill produces is in the Equal Opportunity Act.

Mr KNOLL: Out of an abundance of caution, and this may be a stupid question, its future use will only be defined by future changes to acts. I assume this is the first time we are talking about this?

The Hon. S.E. CLOSE: That is right. On my advice, 'gender identity' is not currently used in acts in South Australia. The bill introduces that term not only in the Statutes Amendment but in some of the other clauses, such as in Equal Opportunity. Then, subsequently, should the parliament so will it, it might appear in acts. That would be a decision consciously made by parliament.

Clause passed.

Clause 5 passed.

Clause 6.

Ms CHAPMAN: This relates to gender balance in the nomination of persons for appointment to statutory bodies. Obviously, we need to accommodate those, for example, who ultimately self-identify for a different sex than they had previously operated under. Where there is a provision in legislation which requires a certain number of persons on a board to be female, for example, and the eligibility or vacancy opportunity is for a female, how does the government propose to manage a circumstance where someone has been male, may or may not have gone through medical procedures but then self-identifies as female, could even do so for the purposes of achieving a vacancy option, and then goes back to what they were the day before?

Do you see what I mean? I am really talking about the potential misuse of the self-identification model for the purposes of gaining access to gender equity opportunities, so perhaps the opportunistic self-identification. Secondly, in getting advice as to how that is going to operate, can you also identify whether there is a limit on when a person can change sex? It may be to qualify for something in an armed force that might require a male person, or to qualify to do searches in a prison that requires a female person. Is somebody going to be able to change their self-identified status multiple times?

The Hon. S.E. CLOSE: I find it unlikely that such a scenario might happen, but it is worth testing every possible scenario when considering legislation. I think the crucial point here is that it is not about a single point of time when someone either qualifies or does not qualify for a position: it is the ongoing status of that person. So, the idea that someone would change their sexual identity in order to get on a board as a female but then immediately revert means that they would then no longer be suitable. They would no longer be qualified.

So, it is not about a single point in time: it is about their identity. Should that change in the course of their sitting on a board, then that changes their status and whether they are on the male or the female side of the ledger. I do not anticipate it being a problem that we have created an incentive for someone to identify briefly as an alternative gender.

Ms CHAPMAN: With respect, minister, it might be for the purposes of gaining that position for three or four years, and then changing. I perfectly understand that, if someone has accessed a vacancy based on a certain sex or gender identity as it currently stands and then changes, they may be disqualified from holding that office as a result of changing their gender, but I am talking about someone who might do that for the purposes of accessing that opportunity, take up that opportunity for a period of time and then change down the track.

The Hon. S.E. CLOSE: I think, as you have indicated, in that case, they would in all reasonable circumstances disqualify themselves. The a priori question of whether anyone would in fact change their identity in order to secure a position I think is fairly remote but, in any case, I think we are protected from someone going back and forth on a whim designed to gain a position by the fact that they would become disqualified by reassigning their own gender.

Ms CHAPMAN: Thirdly then, is there a number limit on how many times one is able to do this, or could one do this on a periodic basis, multiple times?

The Hon. S.E. CLOSE: No, there is no such limit countenanced in this legislation.

Mr KNOLL: Obviously, we are creating definitions around gender diversity and intersex people. How is it envisaged that they will be captured as part of the mandated minimum number of women on boards and committees?

The Hon. S.E. CLOSE: As I understand the question, the phenomenon that the honourable member is describing is where a person identifies as neither male or female and, therefore, what position might they be able to hold. I understand that there are extraordinarily few people in Australia—something like three—who consider themselves to be in that situation legally; therefore, we have not designed a provision that would deal with those people. What we would expect is a reasonable case-by-case judgement to be made on such a rare occurrence.

Mr PEDERICK: The clause states:

…before the definition of non-government entity insert:

man includes a person who identifies himself as a man regardless of the person's designated sex at birth;

I guess this comment is along the lines of the member for Bragg's questioning. I struggle with the possibility that a person could turn up one day—and I use the word 'person' loosely, but it could be a man or a woman—and they just decide for the gender equity issue that perhaps they need to identify as a woman that day. Someone like myself could turn up proudly as a man, but for whatever reason the man involved could say they are a woman. Could they claim discrimination if they are not allowed equity onto a board, if we are looking for a 50 per cent split of men and women?

I have a real problem here, and I think this bill is farcical. We are taking out reference to men and women to look after what I see as a minority. I have no issue; I am all about diversity, but I think we are going one step too far in this. It seems ridiculous that we are even contemplating legislation like this. You might find that someone will end up on a board and decide that they are a man one day and a woman the next, or the other way around. I find it really confusing. I think someone could perhaps be put off a board for discrimination if someone decides to change their own gender identity. From everything I can see, there are no medical assumptions made here, it is all about self-identity.

The Hon. S.E. CLOSE: I think in large measure that was a commentary on the member's view of the clause rather than a specific question, but if I could perhaps give some advice to the member if he is interested in the nature of gender identity and its complexity. It is not a phenomenon that people take lightly or go from one to the other and back again in order to manipulate the system. It is a phenomenon that is not common, but not so rare as to be unnecessary to have regard to. When I was in my early teens, I think, I read Conundrum by Jan Morris, and I urge the honourable member to consider reading deeply about people who go through this experience of feeling that they are not the gender that has been assigned to them by their biology.

Mr KNOLL: On that issue, but maybe in a slightly different format, again, we are inserting gender identity as opposed to strictly sex as a way to define gender for the purpose of a number of these clauses. In the information that was given to us, the term 'gender identity' refers to a person's deeply held, internal and individual sense of gender, which obviously speaks to a deeper thought process than something that is so flippant. Mind you, that definition is not in the bill but, having said that, it was provided in the information session that we had.

Is there anything in that definition—the idea that it is deeply held—that helps in any way? I suppose what I am asking is: is that definition something that you would consider should be part of the understanding of the term of gender identity, that it is a deeply held, internal and individual sense of gender, and does that provide any protection against flippancy?

The Hon. S.E. CLOSE: I am satisfied that the definition is sufficient for the conditions under which it will be used. I do not see a great threat of people flippantly identifying for positions. If there is an amendment that is being countenanced, I am always willing to listen to amendments, or that could obviously be looked at in the other place. However, at this stage I am comfortable that this does the job it is required to do.

The Hon. T.R. KENYON: Sorry to be asking you a question from immediately behind you, minister. This is a weird experience, I can appreciate. The question really is, and coming back to the member for Bragg's point about the boards, there is the potential—likelihood I do not know—but there is certainly a potential for people to misuse the provision to gain positions on boards, and there is obviously a pecuniary benefit on some boards. Not all of them—obviously, a lot of boards are non-paying boards and they are voluntary positions that people contribute to.

But there is a potential for misuse of that, and also in fact to misuse what is obviously a very sensitive, personal topic—I obviously cannot profess to be an expert on this area—for someone who is transgender or intersex to have that misused by other people who are not in that position of being in maybe not a personal dilemma, but making that change in their life. To have that misused by people solely for the purposes of gaining a position on a board I think would be very upsetting; it might be upsetting to them or it may be offensive to them.

Obviously, it is too late to do it now because you would have to prepare an amendment, but it would be a reasonable thing, I think, for there to be some sort of penalty for misusing these provisions purely for gain of some sort where we are talking about what, for a lot of people or for everyone involved, is a very deeply personal thing. I just flag that as something to think about in the intervening period between this house and the other.

Another amendment that may be worth considering in between the houses is that, in the event that you do go about getting a board position, for instance, as the member for Bragg described in her example, you are automatically—if you decide to revert back or whatever else—removed from the board that you gained partly as a result of your gender identity.

Ms Chapman interjecting:

The CHAIR: Order, member for Bragg. You just picked him up on not going through me, so you must really not do the naughty thing yourself.

Mr Gardner interjecting:

The CHAIR: Order! No, you don't need to compound the problem. Have you finished, member for Newland?

The Hon. T.R. KENYON: Thank you, ma'am, yes.

The CHAIR: The minister is going to respond to the member for Newland without interjection.

Ms Chapman: What was the question? I didn't hear it.

The CHAIR: Well, you should have been listening. What can I say?

Mr Gardner interjecting:

The CHAIR: Listen to the answer and you might know.

The Hon. S.E. CLOSE: I feel that this area of questioning has come up four times now, which is essentially, 'Is this open to abuse by people who might temporarily claim to change their gender in order to have pecuniary advantage?' I find it an extraordinarily unlikely scenario, as I have said previously, but it is not unreasonable for people to ask questions about the implications of an act.

What this is doing is making sure that we are not discriminating against people who firmly identify as a certain gender but otherwise, by reason of their biology and their DNA, are not able to take up a position for that gender with which they identify themselves. The thought that we need to build in a whole lot of protection measures to prevent that from being abused I think is unnecessary in my judgement, and certainly there has been no amendment lodged that would suggest that other people have thought about this deeply enough to want to change the wording of the act.

As my good friend the member for Reynell has pointed out, there will also be the application of this legislation, with organisations choosing to have procedures around how it is applied. If they do regard that as some kind of threat, then they may well produce procedures that would govern it, but I see no need for that to appear within our legislation and I see no amendment to argue for it.

Ms CHAPMAN: Can I just say that, whilst in the course of this questioning there has been an indication of penalties for alleged misuse, and given that I have indicated my position that I will be supporting this bill, I just want to make it absolutely clear and have the minister's confirmation on this. It is quite reasonable, in my view, that the government advance a bill to ensure that people who self-identify as neither male nor female have some recognition. I totally support that concept, and I think that is reasonable. People who want to self-identify in that transgender/intersex/queer category are a small minority.

It is absolutely reasonable for members to identify circumstances where there may be misuse or an unintended consequence of someone else missing out as a result of the legitimate use of someone self-identifying. Whilst there have been questions on the potential misuse to get on a board for monetary gain or status, the equally concerning area—and, I do not doubt for a movement, perhaps inadvertent consequence—is that someone takes a position, whether it is on a board, or any other opportunity as a result of the Acts Interpretation Act being amended, and someone else complains.

I think it is much more likely that someone will say they are aggrieved that someone else has taken the opportunity, or is now eligible for something, or is disqualified for something which then results in another party missing out. That is where the problem is going to come about. I do not think the government should underestimate that, and I do not think the government should criticise questions being raised about dealing with unintended consequences. Nor do I think there should be a reflection on members who take a view as to whether legislation is necessary to deal with this, as though they are insensitive in some way to the plight of those who feel that they are on a ship on their own and are not being recognised.

I think there is a diversity of views about the necessity of some of this legislation. On the question of misuse, the minister herself has identified that, in her view, it would be extremely unlikely and a rare circumstance. I hope she is right. We are going to be coming to clause 9 in a minute and I will be asking for the detail in relation to that. It has been provided to me personally, and I have referred to it in the second reading debate.

On the basis that one person had been pregnant, and had not made any attempt to self-abort, or implicate someone else to do it—despite the remote possibility that it might never happen again or, in this occasion, has not happened at all, we are going to change the law under the Criminal Law Consolidation Act.

I am prepared to support that for the reasons I set out in the second reading contribution, but I am not prepared for there to be an attempt to reflect or in some way criticise the apparent insensitivity of people because they raise potential inadvertent consequences to legislation. I will be voting to support this bill, but be on clear notice: I will not stand in this chamber and allow my colleagues on this side or that side to be criticised.

Clause passed.

Clause 7.

Ms CHAPMAN: What happens at present, as I understand it, minister, is that if a search is to be done of a prisoner—and this is frequently the issue that is related to here—of one gender, there is an expectation that a correctional services officer of the same gender will be the person who is employed for the purpose of doing the search.

We have special provision under the discrimination law to sometimes give exemptions to enable persons to conduct searches. I think we have a special provision, for example, which is not able to be used as a basis for discrimination, to enable a person outside of the prison world. So, if the Queen comes to South Australia and she has to be searched, she is entitled to have a female person conduct the search. There is an exemption under the equal opportunity law from any prosecution, I think, to enable that to happen. That happens from time to time, and that is fine.

Again, I just highlight that whilst I entirely endorse that, what we have is a situation where someone who may have, for example, male genitalia who self-identifies as a female. Probably, in that situation, given the case I pointed out in the second reading speech, that person would be at Yatala or Mobilong, and not at the Adelaide Women's Prison, if it followed the example I used from Perth recently. However, in the event that, as I say, they have still got physical identification of a male but are self-identifying as a female, what is to happen then? Is there going to be some capacity to enforce the right to have a search as per your nominated or self-identified new sex, as such? How is that to apply?

The Hon. S.E. CLOSE: I think there are two elements to the response. One is that this is an on-request matter rather than a system that is geared around expectation. The other is the clause 'if practicable'. There is a recognition that it may not at all times be practicable to have, say, an intersex person searched by an intersex person.

Mr KNOLL: Some of the questions I raised at the briefing were around exactly what the deputy leader has talked about and the answer was given that correctional services and police already have policies about how they deal with these things. I then went back and had a look at the base legislation and the minister is right that in both those instances it has the caveat 'if practicable', which satisfied me that I did not need to bring an amendment here. But, is there any way to understand what the policies of Corrections and police are? That is something I asked at the time and I suppose I am asking the same question now, whether there is any understanding of what the protocol is.

The Hon. S.E. CLOSE: I would be very happy to facilitate a briefing between the houses on that. We do not have the advice here in this chamber for me to be able to give you, but we would be very pleased to provide what we can to you in between houses.

Mr PEDERICK: I think this clause could lead to a whole lot of issues, certainly in Corrections, and certainly where people are held or assessed, especially if they stick to their guns and go to the legislation and say they want to be assessed by someone, whether they are lesbian, bisexual, gay, transgender, intersex or queer. I suppose where I am going with this is I think this will raise a whole heap of issues for our correctional facilities, which have enough issues at the moment, especially in capacity. I have Mobilong in my electorate that was built for 160 prisoners and, with the current extension which Public Works Committee is looking at, I believe very shortly it will go up to 432 prisoners. That is just the prison in my electorate, and we have correctional facilities spread across the state.

The issue for me with this clause is, apart from the fact that the prisons are overflowing, I am just wondering what we do with custody if someone who is a male prisoner or a female prisoner clearly has the physical assets of either and suddenly decides that they should not be housed in Yatala and want to go to the women's prison but, clearly, physically, they are a male—or the other way around: if they are a female. I know you say 'if practicable', but the issue I have is that in the Correctional Services Act, relating to the initial and periodic assessment of prisoners, it states that:

The CE must, as soon as practicable after the initial admission to a prison of a person who has been sentenced to a term of imprisonment exceeding six months, to life imprisonment or to a sentence of indeterminate duration, and thereafter at regular intervals of not more than one year, assess the prisoner and his or her circumstances and determine whether or not the prisoner should be transferred to some other prison.

Apart from the whole custody issue that I think is going to happen here, and I know the minister said 'where practicable', my concern is that if someone wanted to stick to the law they could stand their guns and say, 'Well, no, I'm not going to be assessed unless you find', let us say, for instance, 'a transgender person'. Corrections suddenly needs to find a transgender person. I just want a bit more explanation on that.

The Hon. S.E. CLOSE: I believe the intention is to allow the recognition of such a request but not to compel Corrections to fulfil it. 'If practicable' in that subclause is essential in that sentence because, as you point out, there could be circumstances in which the course of the Correctional Services service is interrupted or halted through the decision-making of the prisoner in question. So, this clause very clearly seeks to not allow the concern that you have to happen.

It would have no legal basis to be able to stop the assessment, the transfer or whatever. However, it is about saying that we recognise that some people are in certain circumstances where they would have preferences on sexuality, gender and so on and that that ought to be at least considered by Correctional Services, and if practical responded to but if not practical then not. I am not sure whether there is a particular alteration that the member would like to see to this, but I believe that legally this is giving Corrections the protection that I understand the member is seeking.

Mr PEDERICK: I have just one more question. Essentially, this is catering for, I am assuming, a minority of prisoners who may want to identify under this legislation, but at the end of the day, as the minister has explained, no-one has to stick to their request, anyway. From the minister down, but the chief executive as tabled in the legislation, could just say, 'Well, it's not practicable. We're not going there.' So, it is a bit of a sop to political correctness, I think.

The CHAIR: That's an opinion, not a question. Deputy leader.

Ms CHAPMAN: My question is really as to what appears to be an omission at this point, that is, there seems to be no provision in this bill for police searches. I distinguish them because, obviously, police are managed by the Police Act and other legislation and frequently there are police officers present for the purposes of pending charges or pending determination by courts for bail applications and, ultimately, sentencing.

The reason I ask it is this, and particularly the question is: has the government considered, in relation to police, whether there should have been any inclusion in this act as to the same 'if practicable' access to a male or female person? In particular, I raise it because I can recall on one occasion there had been the disclosure of a woman who was stripped searched and left naked for a prolonged period.

I made a public statement about how outrageous that was, and that that practice should not be pursued. There was an assertion at the time by, I think, a Police Association representative that it had been a one-off, and, in fact, we found that it was not. Issues were raised at the time with the then police minister, and I would certainly hope today that that situation does not occur, that is, prolonged nakedness of a person in detention, which, of course, can be used tactically to have them submit to whatever the interrogator wants to pursue.

Clearly, the police do, from time to time, have to completely strip a person who has been taken into custody to undertake procedures; some of them are forensic and some of them are for photographing, inspection, medical assessment, identification if they are carrying drugs, and so on. Some of that is quite invasive. I understand that that can occur, so I just wonder: what is the situation with the police, and has the government considered the same applying to them?

The Hon. S.E. CLOSE: I thank the member for her question. I believe the response is to be found in clause 41, which is the amendment to the Summary Offences Act—

Ms Chapman interjecting:

The Hon. S.E. CLOSE: That's right—where it says amendment to section 81(3)(d) 'after "sex" insert "or gender identity".' I believe that that clause refers to searches by police.

The CHAIR: Does that satisfy the deputy leader?

Ms CHAPMAN: I hope so.

The CHAIR: You will check on that, no doubt. We will not be finished with this before lunch.

Clause passed.

Clause 8 passed.

Clause 9.

Ms CHAPMAN: Here is this issue of 'for the purpose of abortion'—this is when you take a poison to try to dispose of an unwanted foetus—and there is a maximum of life imprisonment. As I pointed out, the information that was given to me during the briefing was that there was a situation where a person had changed their identity (gone, in this case, from female to male) and subsequently found that they were pregnant. Therefore, they could have been in a category where, if they had attempted to procure their own abortion, they would have potentially avoided prosecution on the basis that they were not a woman who is pregnant.

That being the case, even though the person who had done that, or at least had been identified as having done that, in no way indicated that they were going to attempt to abort the child or to commit any offence, but the potential was always there. I raise that issue because of the comments made by the minister in previous matters here that, sure, we are dealing with a minority; in this case, we are dealing with someone who has not even attempted to do the wrong thing, but it has highlighted the capacity that someone could.

It always reminds me of the former premier, who used to sit in your seat, who came in here one day and said he was going to introduce a law that says that it will be an offence to eat cat food or dog food. Even though there was already a law that said that restaurants could not serve it, freeze it, cook with it, and all sorts of other things, he was going to introduce a law that said you could not eat it. When he was asked why it would be necessary to go on radio and save the world from dog and cat food eating, he said because there was a woman who rang up talkback radio in Victoria and said that she thought she had been to a premises where this might have happened. Well, I mean, really!

I accept that that is an outside risk, an outside chance, the 500 to 1 at the Melbourne Cup, that there is a possibility that somewhere out there sometime that could happen; and because it is the Criminal Law Consolidation Act I am prepared to support it. Today, I read in the paper that the Hon. Tammy Franks is considering amending this legislation, when it gets up there to the other place, to reduce the penalty from maximum life imprisonment. Has the government considered this and are they sympathetic or supportive of a reduction in penalty for a self-abortion from less than life imprisonment?

The Hon. S.E. CLOSE: I had not read that in the paper, so that is the first that I have heard of that. It is, of course, a matter of conscience, so there is no government position when it comes to amendments to the restrictions on abortion. The only way I can answer that question is by answering for myself, and without having considered it I do not see an argument for making that change.

This clause is about removing the distinction between man and woman and just saying 'a person'. As we had the tussle with the first clause that we discussed about whether or not rareness is a cause for making legislative change, I suppose my point in the previous one was that I felt that the likelihood of someone abusing the legislation was vanishingly small. However, if people wanted to come up with an amendment perhaps between the houses that would protect the legislation from being disputed, then that is always something that would be countenanced.

Ms Chapman interjecting:

The Hon. S.E. CLOSE: We would have to see what the amendment looked like and see whether that made sense. It is always good to have the strongest possible legislation. This clause is simply not choosing to define a person by their gender, and I think in more cases than not that is a good idea, but in terms of amendment to abortion that is the first I had heard of it.

Mr KNOLL: As I have said from the outset, I am supportive of the intent of this bill. I think that it includes people who could otherwise have felt excluded and I think that is an extremely important thing. Again, like the Deputy Speaker—well, not to put the Deputy Speaker in the same category—as a conservative, it is not my desire to always say no to everything. It is merely my desire to make things as good as they can be and to look at the practicalities of certain legislation so that the intent can match the reality.

The first question I would like to ask on this clause is: is the only change that is being suggested here the change from 'pregnant woman' to 'someone who is pregnant'? Is there any other practical application? As an adjunct to that, is this the only time that that phrase is used in legislation?

The Hon. S.E. CLOSE: I understand that that is correct, that the only change is linguistic—to stop referring to a woman and to refer to a person. It is not changing the operation of that piece of legislation at all.

Mr PEDERICK: I may have a differing view to some. In relation to abortion, I have had plenty of feedback from people around the state but also my electorate who are concerned with this clause and the bill. When I made my contribution, I spoke about 54 women who identified as men in 2014 who gave birth in Australia. It is a simple known fact that unless you have female reproductive organs, because the artificial womb is a little way off I think—and I spoke about that in my speech, if anyone is keen to have a look.

Ms Chapman: You can have both.

Mr PEDERICK: Potentially you can have both sets, as indicated by the member for Bragg. For all eternity I will believe that women do a great job in our community and I find this discriminatory against women because not one of those 54 people who identified as men were men at birth. My question is, and I do not ask it flippantly: is the minister aware of anyone who was born a man who has given birth or is likely to?

The Hon. S.E. CLOSE: I do not have an exhaustive knowledge of all of the different genetic types that humanity can be blessed with. I know that there are genetic disorders, if disorder is the correct term, which involve XXY and XYY and, therefore, when you are dealing with changes to the XY category (XX being female, XY being male) when you are dealing with people who are born with different combinations, then it is very difficult to say: is the child a boy, is the child a girl?

As I believe I overheard the member for Bragg saying, there are people who are genuinely born with more than one gender's set of reproductive organs. Again, it is extremely rare but it does happen. Whether those people are then able to look anatomically male but bear children, I believe I have read that in the past that that is possible, but I would like to try to slightly change the emphasis on what this clause is doing. This clause is not seeking to say men and women, it is simply removing the word 'woman' and replacing it with 'person' which comprises women as well. I do not think it is in any way trying to step away from acknowledging the role that women have at birth. I seek leave to continue my remarks.

Progress reported; committee to sit again.

Sitting suspended from 13:00 to 14:00.