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

Adjourned debate on motion of Mr Odenwalder:

That the report of the committee, on the Sexual Reassignment Bill 2004, be noted.

(Continued from 18 May 2016.)

Mr ODENWALDER (Little Para) (17:15): I welcome the opportunity to conclude my introductory remarks on this report on behalf of the committee. Significant health issues affecting the gender-diverse community were raised in the evidence and in submissions to the committee. We were concerned by the matters raised. The establishment of a multi-disciplinary clinic was suggested, and the committee accepted that this option should be considered.

The committee also considered the potential for a married person to invalidate a marriage by way of changing their legally recognised sex. The committee took the view that marriage should not be an impediment to obtaining a change of a person's legally recognised sex, taking account of individual rights and potential mental health issues, however, noting that South Australian Law must also be reconciled with commonwealth law. The committee acknowledged the issues faced by prisoners who are unable to access private medical care and it was of the view that prisoners would benefit from the provision of specialised, publicly funded medical services for the broader gender diverse community.

The potential for unlawful activity was also brought to the attention of the committee. The committee considered the need for providing notifications to other agencies upon the completion of the processing of applications relevant to any new regime; for example, notifying an agency of a change of a person's legally recognised sex. The Births, Deaths and Marriages Registration Office is not currently required to notify other agencies of a change of a person's sex. The committee did not support the introduction of notifications in respect of a person changing sex, as privacy was the paramount concern.

The status of laws and recent law reform in other jurisdictions was also considered by the committee. In 2014, the ACT introduced the most recent Australian reforms removing the need for reassignment procedures to be carried out before a person's change of sex would be recognised by the ACT register of births along with the need for applicants to be unmarried. The committee also noted the significant reforms which have occurred in overseas jurisdictions in recent years.

The committee expresses its hope that the findings and recommendations set out in the report will contribute to the commencement of a process which addresses many of the concerns put to the committee during the course of this inquiry. The committee would like to thank the previous secretary, Mrs Jennifer Fitzgerald, the current committee secretary, Mr Matt Balfour, and the committee's research officer, Mr  Ben Cranwell, for the helpful support provided to the committee throughout the conduct of this inquiry. I commend the report to the house.

Mr KNOLL (Schubert) (17:17): I can only imagine what gender confusion is like. To question the fundamental nature of your being must be terrifying and extremely confusing. I have extreme sympathy for those who find themselves in this situation. I would like to thank the Legislative Review Committee because I think it came at this from a position of compassion and one of seeking to gain a depth of understanding in what it was seeking to achieve. I have no doubt that we will be seeing legislation in this place to deal with this at some point in the future.

I would like to go through some of the recommendations and some of the report and what it talks about. It seems that the main recommendation coming out of the report is to remove the need for somebody who wishes to undergo sexual reassignment to appear before a magistrate and prove their new sexuality. I think that is a sensible move. It is a piece of red tape that is extremely unedifying and can be embarrassing, and it can also be a very difficult process for people to have to go through. Indeed, we should be treating this as much as possible as a medical situation as opposed to a legal situation. I think the comments in relation to removing the need to go to the Magistrates Court to approve applications is entirely sensible, and something that personally I would be happy to support. The member for Little Para said:

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.

That is something that I have been struggling with over the past days to understand. Again, I will make some other comments in relation to the difference between gender and sex. It is an issue that we have had to deal with in a couple of pieces of legislation, with the gender identity changes and also the parentage presumption changes that we have gone through. We need to be able to distinguish between when we are talking about sex and when we are talking about gender.

To that extent I would like to quote from a statement from the American College of Pediatricians. I will go through a little bit more about some of the things they say, but in relation to the difference between gender and sex I think what they say here clarifies what I think this house has been grappling with in some of the debates we have been having. They state:

No one is born with a gender. Everyone is born with a biological sex. Gender (an awareness and sense of oneself as male or female) is a sociological and psychological concept; not an objective biological one.

I think that makes sense. I think when we are talking about people's understanding and identity of themselves, that can have a much more diverse set of meanings and, indeed, can have a multiplicity of meanings. I understand that LGBTIQ is a term that is now used to cover off on the totality of gender diversity that people feel. Certainly, when it comes to that, I think it is entirely appropriate, but I struggle a little bit with the fact that we are dealing here with sexual reassignment, not gender reassignment, and I think we need to be cognisant of that fact. The American College of Pediatricians state:

Human sexuality is an objective biological binary trait: 'XY' and 'XX' are genetic markers of health—not genetic markers of a disorder. The norm for human design is to be conceived either male or female. Human sexuality is binary by design with the obvious purpose being the reproduction and flourishing of our species. This principle is self-evident. The exceedingly rare disorders of sex development…including but not limited to testicular feminization and congenital adrenal hyperplasia, are all medically identifiable deviations from the sexual binary norm, and are rightly recognized as disorders of human design. Individuals with DSDs do not constitute a third sex.

They then go on to say:

A person's belief that he or she is something they are not is, at best, a sign of confused thinking.

I think that is something that I do not necessarily agree with and am struggling to understand. They go on to say that there are children who suffer from what they call gender dysphoria:

Gender dysphoria…formerly listed as Gender Identity Disorder…is a recognized mental disorder in the most recent edition of the Diagnostic and Statistical Manual of the American Psychiatric Association…The psychodynamic and social learning theories of GD/GID have never been disproved.

Essentially what that is saying, I think, is that what we need to deal with here is more of a medical condition in terms of gender identity than, potentially, a legal one. They go on to say this—and this is something that I think will define my contribution to any legislation that comes before this place:

Puberty is not a disease and puberty-blocking hormones can be dangerous. Reversible or not, puberty-blocking hormones induce a state of disease—the absence of puberty—and inhibit growth and fertility in a previously biologically healthy child.

They continue:

According to the DSM-V, as many as 98% of gender confused boys and 88% of gender confused girls eventually accept their biological sex after naturally passing through puberty.

They then talk about puberty blockers as potentially creating issues down the track and can be:

…associated with dangerous health risks including but not limited to high blood pressure, blood clots, stroke and cancer.

Getting back to the report, it looks at and talks about when people can consent to a sexual reassignment procedure. It obviously talks about people over the age of 18 being able to give that consent for themselves and, essentially, lowering to 16 the age when people can consent for themselves, and then outlines a different process for children.

Can I say that, according to that information from the American College of Pediatricians, for those who have been through puberty and still have the desire to change their biological sex, I think we as a parliament should make that as easy and as clear as possible. I think that is an entirely valid and appropriate response, but I have some reservations where this is done to children who have not gone through puberty. Potentially, they are going through treatment that may correct itself naturally through puberty, so I would be very wary of anything that increased access or made it easier for sexual reassignment therapies to happen for children who have not gone through puberty because, according to this, the vast majority of people who suffer from gender dysphoria will make a different decision post-puberty.

The recommendations of the report go on, as I said, to talk about changing the burden of having to go through the Magistrates Court to get approval to, essentially, statements from registered medical practitioners. I think this is entirely sensible. I have just talked about recommendation 3 in terms of dealing with children of various ages, and I will wait to see what comes back before the house.

Recommendation 5 talks about the protection of privacy, and I think that is something we dealt with very well with the parentage presumption changes. A person's birth certificate should have the sex as it is recorded and not previous sexes, but that information should be retained on a separate register. I understand that is happening for a variety of different reasons, and I think that is entirely sensible and something to support.

Recommendation 6 states that 'a change of a person's sex must not be allowed to occur more frequently than is reasonably determined'. Understanding what sexual reassignment looks like, I would struggle to see too many people who would enjoy going through that process more than they absolutely have to so, while I understand we are trying to deal with that, I do not think it is going to be that much of an issue.

Recommendation 9 goes on to talk about providing increased access to publicly-funded specialist medical care for gender diverse people, and a multidisciplinary approach. Again, that is in recognition of the fact that we should deal with this from a medical perspective as opposed to a legal perspective, and I think that is entirely appropriate. I commend the Legislative Review Committee for their work. I imagine it was difficult and confronting, but thank you very much. I certainly look forward to participating in debates around legislation that may come to this place in the future.

Ms DIGANCE (Elder) (17:28): I was part of this committee that reviewed this legislation, and I think it is noteworthy to make the comment that, since its commencement in 1998, the Sexual Reassignment Act has remained relatively unchanged, so this review was well and truly due. The review was both complex and detailed and, at times, of a very sensitive nature. I would like to pay tribute to and applaud those who came to present evidence to us, and in particular those who are personally living this journey or living close to this journey, who gave us their stories when they came before the committee. While most of them were very helpful and supportive to our deliberations, at times, these candid conversations were very moving.

I would like to put on record that I support the nine recommendations as discussed in the report, and I draw particular attention to the focus and consideration the committee had when contemplating the welfare of the group of people affected by this act. The committee considered complexities of sexual identity in the use of language; births, deaths and marriage registration; registration of a baby at birth; and the ability to amend the sex of a child and that of an adult—all very complex issues to deal with. The protection of privacy was also something that was paramount to the committee when we discussed and heard evidence. The committee heard evidence about the psychological and social stigma and anguish faced by those on this journey, and the relatively high and saddening incidence of suicide and self-harm was of particular concern to us for this group.

I am making some brief comments, but I would like to highlight what I see as one of the really critical recommendations. I believe recommendation 9 underpins this whole legislation:

The Committee recommends providing increased access to publicly funded specialist medical care for the 'gender diverse'…community, particularly in respect of psychiatric services, and endocrinology services.

What is critical to this is a multidisciplinary approach, a holistic approach that these particular people and families really need access to, and they are very deserving of this. Those are my few brief remarks and I support the recommendations and the report.

Mr ODENWALDER (Little Para) (17:31): I commend the report to the house. I want to thank both the member for Schubert and the member for Elder for their contributions. The member for Schubert made a very thoughtful contribution. He has obviously read the material and thought quite deeply about. These are complex and vexed issues, and I hope that other members, like the member for Schubert, take the time to read and consider the recommendations.

I want to reflect on the fact that it was a difficult subject matter and that these recommendations and conclusions were not easy to come to. I want to thank the witnesses who appeared. A range of experts came to speak to us about this really complex subject matter, as did some witnesses who had firsthand experience of some of the issues faced by people who are affected by this legislation. I want to thank them publicly for the taking the bold step of appearing before the committee, taking the step to initiate some change in legislation. Many of the recommendations we made are probably long overdue. Again, I urge members to take the time to consider the recommendations of this report and I commend it to the house.

Motion carried.