Legislative Review Committee: Inquiry into the Sexual Reassignment Repeal Bill 2014

Mr ODENWALDER (Little Para) (11:55): I move:

That the report of the committee into the Sexual Reassignment Repeal Bill 2014 be noted.

The Sexual Reassignment Act commenced operation on 15 November 1988, and has since remained substantially unamended. The Hon. Chris Sumner MLC, then attorney-general, noted in the other place during the second reading of the Sexual Reassignment Bill 1987, that it was the government’s intention to regulate the undertaking of sexual reassignment procedures, and to provide a mechanism allowing for the legal recognition of reassignment of a person’s sex.

Prior to the enactment of the Sexual Reassignment Act, although sexual reassignment procedures were being performed in South Australia, there was no process enabling the amendment of birth certificates to recognise reassignment of sex. The Sexual Reassignment Act was the first legislation of its type in Australia, regulating the approval of medical practitioners who may carry out ‘reassignment procedures’, the approval of hospitals in which reassignment procedures may be carried out, and the process and the required criteria for a person to change the sex recorded on their birth certificate.

On 15 October 2014, the Sexual Reassignment Repeal Bill 2014 was introduced in the Legislative Council. This bill would repeal the act. The Hon. Tammy Franks MLC in the other place noted during the second reading of the bill that the act had not been reviewed since its commencement, and in her view did not serve either ‘the transgender community, the broader community, or the medical health professionals of this state’.

Although well intentioned, the Sexual Reassignment Act had, in her words, ‘never worked’. On 3 December 2014, the bill was withdrawn by the Legislative Council and referred to the Legislative Review Committee for inquiry and report. The committee wrote to a number of organisations and individuals inviting submissions to the inquiry, and 18 submissions to the inquiry were received, and seven public hearings were held.

The majority of submissions raised concerns with respect to the need for ministerial approval of medical practitioners who may carry out reassignment procedures under part 2 of the act. A number of submissions also raised concerns regarding the need for ministerial approval of hospitals which may allow the use of their facilities for the purpose of carrying out reassignment procedures, also required under part 2 of the act. No public hospitals are approved to allow the performance of reassignment procedures upon adults. It was suggested private hospitals are reluctant to seek approval. This was considered to be reducing access to medical treatment by the gender diverse community.

The need for a magistrates court to approve applications for the recognition of a change of sex, and to issue a ‘recognition certificate’ under part 3 of the act, was criticised by many of the submissions, and the committee accepted that magistrates should not be required. It was suggested that submitting applications direct to the births, deaths and marriages registration office, would be a suitable option for implementation in South Australia and the committee agreed with this approach. The submissions and evidence also criticised the need for the prior carrying out of reassignment procedures before a person satisfies the criteria allowing for an amendment of the register of births to occur. The committee also accepted these criticisms.

The committee considered the need for consistency between the process to amend the register of births and the guidelines used for the amendment of other government records including the information set out on passports at a federal level or other documents at a state level which are often used as identity documents. Without consistency it was noted that people can be left in possession of a passport or another official government document which records a person's sex as being different from the sex recorded on a person's birth certificate.

Consistency was considered by the committee to be the best option. The introduction of a non-specific or what is otherwise referred to as 'a non-binary sex' was also given consideration and the evidence suggested a need for such a third category of sex, and this was accepted also by the committee. The committee contemplated a process allowing for self-determination of legally recognised sex without the need for a medical diagnosis or treatment. For reasons of providing some level of protection and possible support to members of the community seeking to utilise any new regime, a requirement to produce medical evidence in support of an application was favoured. I seek leave to continue my remarks.

Leave granted; debate adjourned.