Births, Deaths and Marriages (Gender Identity) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 21 September 2016.)

The Hon. S.W. KEY (Ashford) (16:01): I would like to contribute to this debate because I think it is really important that we do continue with the social agenda that has been set not only through our Governor at the start of this session of parliament but also through the project that many of us have been involved in for many years with regard to social justice. Very simply, what this bill does is continue the social justice agenda that says that we need to make sure that all South Australians are valued in the same way and that we acknowledge the different relationships we have in our community.

In days gone by, Tasmania was seen as a very, very conservative place. I was a bit surprised, but also pleased, to hear a number of years ago that the end of the world had not happened in Tasmania because different relationships were recognised in our community. One of the things this bill will do, assuming it is passed, is acknowledge the fact that we have different relationships in the community and that people want to be acknowledged as having a significant relationship with another person.

The Tasmanian provisions not only cater for de facto heterosexual relationships but also for same-sex relationships. In light of the fact that equal marriage seems to be something that is into the future, this is also an important acknowledgement for people who do not necessarily want to be married but who would like their relationship registered as a significant relationship.

Years ago, Deputy Speaker, you and I were certainly involved in the process of trying to make sure that this happened and that there were the same rights and responsibilities for people in differing relationships and we ended up with the domestic partners provision. At the time, I must say I was very disappointed, but I actually think that was a very wise move and I stand here today saying that, if we are going to be consistent about recognising the different relationships in the community and the significance of people to each other in domestic relationships then, in hindsight, that was a way forward.

This is the next step on the road, and I commend this bill to the parliament. In doing so, I congratulate the Premier and the assistant minister, the member for Reynell, along with a whole team of people who have helped make this happen, on the fabulous work they have done.

The Hon. T.R. KENYON (Newland) (16:04): I must say that, in a very short space of time, I have given this bill quite a deal of thought. I will start by saying that I cannot begin to understand the way people who are in need of the provisions that this bill will provide, should it become law, are thinking and how they came to that point. It is not a criticism. Their experience is obviously so different from mine that it is impossible for me to get inside their head and understand the way they think and the way they feel. That is probably not surprising: it is difficult for many of us to do that for most of our fellow citizens, I suspect.

I approach it with some sympathy for the position that transgender people are in and the fact that it must be a deeply troubling position, where the physical fact of your being is in conflict with the way that you see the world and you want the world to see you. Given that, I completely understand why this bill has come to this parliament. I have said previously in relation to other bills, and I say again now because it is my approach to this parliament, that I have absolutely no hesitation in saying that I regard that everyone who has brought this bill to the parliament, supports this bill and will vote for it, does so with the best possible intention. I have no quibble with the fact that it is here or the good intentions of those people who bring it, but I do have a number of concerns with the bill and I will be opposing it.

In my ponderings on the bill and the issues behind it, one of the things that has occurred to me is that probably part of the reason people feel the need to change their gender (and, again, it is my best guess because I cannot begin to understand how people have got to this point) is because of society's expectations of people, in my view. I think our role as a society is to accept people as they are, and it is hard for me to go past the physical fact that someone is either male or female and there is very little that can be done to change that. You can undergo surgery, of course, but that surgery cannot instil the full biological functions of a person one way or the other. A female cannot become a fully functioning male and a male cannot become a fully functioning female.

That is at odds with the way those people who seek that see themselves in the world, and I wonder whether they got to that point simply because society has such a way of viewing gender—male and female and what is acceptable as a male and what is unacceptable as a male, and vice versa—that these people feel so out of sorts about their place in the world that the only way they can see to reconcile themselves with the world is as a person of the opposite sex.

I think that is really down to us, and I am, personally, as guilty of this in my view of what gender is and is not and also what it means, from my perspective, to be a man and what it means to be a woman. It is through attitude and through the slightest way of talking to people or treating people that we continually reimpose these gender stereotypes and the way we say people should be.

It seems to me that that is having the cumulative effect of saying that someone might feel that they are so alien to that that they need to change their gender, and I think that is on us. The problem here is not the law. The problem here is the way society is operating, the way people approach other people, including me, but I suspect more than just me. I am not the only one here who might be bailed up on that issue.

I think the challenge for us as a society is not so much a change in the law but a deep change in the way we approach each other, the way we look at each other and the way we accept each other. This bill works around that. In some ways it is the easy way out because it gives us as a society an easy way to get around this problem, which is a more fundamental problem of society than just the laws and the rules of our society.

Coming from that perspective, I must say that I have a couple of concerns with the specifics of the bill, firstly with children under the age of 16. I acknowledge the difficulty that some students and children under 16 are going through in dealing with the way they perceive themselves and the way they walk through this world. I do not seek to underplay the difficulty of that, but they are children. My view on kids, and I have tried to bring this in with my own kids, is that you just have to let them get through their childhood. As they get older, they will sort themselves out, and they can make a number of really serious decisions as they get older and once they reach adulthood.

One of the clauses here allows people over the age of 16 to take part in this process. I have seriously thought about amending that to 18. The technical problem with that, of course, is that we would need to change the medical procedures act, as I understand it, to change access to a medical procedure that already exists and has already been decided on by the parliament. I suspect I will not proceed with an amendment in that area, but I will just highlight again that I think it is incumbent upon us to allow children the space that they need to grow and to come to their own conclusions and then eventually make their decision when they are in a position to do that.

I know there are provisions within the bill for society to assure itself that children are of a sound mind and everything else, but I am firmly of the opinion that they are not. They are children. They need that time before they start taking steps that they may later wish to reverse, or whatever else may go on. I know that some of my children's friends at school are going through the same process. They are working out who they are and where they should be, and I think we should allow them the space to do that without parents or anyone else seeking to impose—in fact, I do not think parents would seek to impose it upon them. We should just pull people up a little bit short and say, 'Just give yourself some time and, when you get there, you can make that decision as an adult.' We say 18 for so many things. I personally think it should be 18. I think it is impractical to make it that at this point.

The second issue of concern to me in the bill will come as no surprise to anyone here. It is the provisions around marriage. As this house would know, I am a supporter of traditional marriage, that marriage is between a man and a woman. That is how I view life. I have voted in this house on this matter before. The provisions in this bill are a de facto way of same-sex marriage, essentially. While that is a debate that the federal parliament may have to have, or a debate that society may have to have in the event we go to a plebiscite, it is an area of federal purview. It always has been, and it should remain that way. Obviously, I say that for my own reasons and from my own view of what marriage is, but I do not think we should be trying to going around that in a de facto way to circumvent that federal law as it currently stands.

I will be asking some questions around residents born outside of Australia because I have not even got to thinking deeply about that, so I just give the parliamentary secretary some notice that I will be asking her about how that came about and, more importantly, why it is necessary. I will also be asking some questions on who has access to information about people's original history. As I told the house not so long ago when speaking on the presumption of parenting bill, a person's history is important.

The fact that they are able to access that history is important but, down the track, it is also important that historians and others are able to, in the fullness of time, access that information, as is currently the case. Given that birth certificates and, in this case, a fundamental part of someone's identity is being sought to be changed, I am keen to make sure that there are adequate safeguards around security and that police and security agencies have access to that data for the purposes of policing and also for security.

I note the use of an old birth certificate to deceive has become an offence, and I think that is a good thing. I would not doubt someone's genuine desire to change their gender and do it for their own reasons, but it is good that it becomes an offence to try to manipulate that change in identity for their own purposes, in anticipation of what I think is unlikely but may happen.

I also approve of the identity protections for children and the limiting of availability of that sort of information for both adults and children down the track, once the change is eventually made, should that be the case. With those words, I indicate to the house that I will be opposing the bill. In the event that the bill passes, I will be seeking to make some changes around some of the clauses.

Ms HILDYARD (Reynell) (16:18): Thank you very much to everybody for their contributions to this debate. It gives me great pleasure to speak today and to close this second reading stage of the debate. This important bill, introduced by our Premier, of which I now have carriage—the Births, Deaths and Marriages (Gender Identity) Amendment Bill—forms an important part of our government's commitment to implementing the recommendations of the South Australian Law Reform Institute's work to eliminate discrimination against our LGBTIQ community. Days in this place when you have the opportunity to help make life better for our fellow community members are the best ones. This bill does just that, and that is why I am proud to stand before you today and to speak in favour of it.

SALRI has widely consulted our community on the content of this bill, and I hope that it broadly reflects what members of our community affected by it would like to see in our laws. As I have said in moving other bills that have been developed as a result of the work that our government asked SALRI to undertake, the passing of this bill will affect only a small group of South Australians but, for those whom it does affect, the outcome is significant and represents the laying down of another plank in our pathway to eliminating all forms of discrimination against South Australians and particularly against our LGBTIQ brothers and sisters.

In speaking to this bill, I also mention the important work of the Legislative Review Committee of this parliament. On 12 April 2016, the committee released the report of its inquiry into the Sexual Reassignment Repeal Bill 2014. This bill includes recommendations from that report, as well as the SALRI report. The committee was very clear that work had to be done to change the current situation, and I am proud that we have taken swift and decisive action to do just that. would like to take the time to respond to some of the specific concerns raised during the second reading debate.

Firstly, I think it is very important that the house be made aware that a process already exists for people to have a sex or gender identity reassignment in South Australia. This system of registering is no longer appropriate for the people it impacts and has been the subject of extensive review by SALRI and the Legislative Review Committee of this parliament. Both bodies independently concluded that the current process is very difficult to access and use and requires amendment to ensure the process is more direct, easier to access and better reflects the needs and expectations of people in our community.

Intersex prevalence was also an issue raised in this house during the debate. 'Intersex' is a term for people born with atypical physical sex characteristics. There are many different intersex traits or variations. The World Health Organisation notes that estimating the birth prevalence of intersex is difficult because definitions of intersex differ. Regardless, the World Health Organisation uses estimates of between one in 300, for genital anomalies, to one in 4,500 births, for genital anomalies for which sex assignment is difficult.

Research into the frequency of individuals receiving corrective genital surgery shows that between one and two of every 1,000 live births (or 0.1 to 0.2 per cent) receive such surgery. Complete data specific to South Australia is not collected. However, data is collected by the Pregnancy Outcome Unit of SA Health for instances of children born classified with indeterminate sex, often based on the presence of particular physical sex characteristics). Between 2002 and 2013, nine indeterminate sex births were reported by SA Health.

In Australia, a small number of people have undertaken a process to be legally recognised as neither male nor female. Unfortunately, others in our community who identify similarly, but for various reasons, including legal difficulty or inconsistency across jurisdictions, are not able to be legally recognised as such. In July 2016, the Statutes Amendment (Gender Identity and Equity) Bill 2016 was passed by this South Australia parliament. Amongst other things, this bill inserted the term 'intersex status' into the Acts Interpretation Act, therefore beginning the process of recognising people who identify as intersex.

I would also like to refute some claims made by the honourable member for Schubert. He referenced the American College of Pediatricians, noting their view that human sex is binary and that gender dysphoria is temporary. Although its name makes it sound like a credible professional organisation, in fact the recognised professional organisation for paediatricians in the US is the American Academy of Pediatrics, with over 60,000 members.

By contrast, the American College of Pediatricians has a membership estimated at between 60 to 200 people and has been designated a hate group by the Southern Poverty Law Center, placing it in the same category by them as the Ku Klux Klan. The 36,000-member American Psychiatric Association, which defines mental illnesses through its Diagnostic and Statistical Manual of Mental Disorders, notes that it is important to note that gender nonconformity is not in itself a mental disorder.

An assertion was also made yesterday that the register of births contains only biological facts. Firstly, the register of births, deaths and marriages lists names which are not biological issues. Secondly, there are already multiple times when a birth certificate can change during someone's life. For example, birth certificates can change as people change their names, in the case of adoption or, indeed, when there are changes to sex under the current process. The objects of the Births, Deaths and Marriages Registration Act state that it provides not only for the registration of life events, but also for the collection and dissemination of statistical information. The Australian Government Guidelines on the Recognition of Sex and Gender state:

…the preferred Australian Government approach of collecting and using gender information, with sex only being collected where there is a legitimate need.

Yesterday, this bill was referred to as a 'Trojan Horse' for marriage equality. This bill in no way enables same-sex marriage, as the South Australian parliament does not have the power, sadly, to legislate on this matter. This power is exclusively held by the commonwealth government under the Australian Constitution. Members may wish to refer to the current ability of people to change sex/gender there.

The age of consent for various things does vary across jurisdictions, and even within jurisdictions. For example, the following Australian states legislate the age of consent for sexual interaction as 16 years: the Australian Capital Territory, New South Wales, Northern Territory, Queensland, Victoria and Western Australia. South Australia and Tasmania set the age at 17. In relation to medical consent laws, however, the South Australia (Consent to Medical Treatment and Palliative Care Act 1995) allows children aged 16 and over to make medical decisions independent of their parents and guardians.

The member for Hammond's assertion that people will seek to make this application 'on a whim' is insensitive and, frankly, potentially offensive to the many gender diverse people in our community who face issues. The process proposed to change legally registered sex/gender identity will be found in the Births, Deaths and Marriages Registration Act 1996. Applications would be subject to section 51 of the act, which makes it an offence to make a false or misleading representation in an application or document under the act, which would, of course, include changes of sex or gender identity. The penalty carries a maximum fine of $1,250.

Further, applicants must provide a statement from a medical practitioner or psychologist that certifies the applicant as having received or currently receiving appropriate clinical treatment in relation to the person's sex or gender identity. The Good Medical Practice: A Code of Conduct for Doctors in Australia, published by the Medical Board of Australia, requires doctors to be honest and not misleading when writing reports and certificates and only signing documents they believe to be accurate. The code was endorsed by all Australian, state and territory medical boards, and the Australian Medical Council. It is issued under section 39 of the Health Practitioner Regulation National Law Act 2009. Doctors making false statements risk findings of unprofessional conduct.

I will take a few minutes to talk further through some of the specifics of this bill. As mentioned, one of the major features of this bill is the repeal of the Sex Reassignment Act 1988. The act sets out the process and requirements to enable a person to change their sex on the SA register of births. Currently, before this can be changed the person wishing to do so must seek a recognition certificate from a magistrate. This certificate declares that the person has undergone a reassignment procedure that includes:

A medical or surgical procedure (or a combination of such procedures) to alter the genitals and other sexual characteristics of a person, identified by birth certificates as male or female, so that the person will be identified as a person of the opposite sex and includes, in relation to a child, any such procedure (or combination of procedures) to correct or eliminate ambiguities in the child's sexual characteristics.

The magistrate must also be satisfied that the person believes that their true sex is the sex to which they have been reassigned, and has adopted the lifestyle and has the sexual characteristics of a person of the sex to which the person has been reassigned, and has received proper counselling in relation to their sexual identity.

As many members of the house would know, these are quite significant and often expensive hurdles that people who wish to change their gender must conquer. They are often time consuming and take from a person the authority to make decisions about their own life and identity. It is important that this house decisively notes that the time of the Sex Reassignment Act is long over. It was well meaning when introduced but ultimately misguided. The act currently includes mechanisms for the minister to approve of hospitals and medical practitioners carrying out sexual reassignment procedures.

I am sure the house can agree that these decisions are best left to medical professionals. Indeed, while in the 1980s it might have been considered landmark legislation, it is now quite odd that a small subset of the medical profession is subject to overview not afforded to the rest. I believe that members of the public would be relieved to hear the decisions about medical treatment are being returned to the profession which is best placed to make them. This bill also amends the Births, Deaths and Marriages Act. The amendments to this act include:

providing for flexibility to register non-binary births in South Australia;

enacting a direct application process for adults to change their registered sex and/or gender;

enacting a process for children to change their registered sex and/or gender with, of course, appropriate safeguards;

removing the requirement for gender reassignment procedure (medical or surgical) as a prerequisite for registering a change of sex or gender identity;

allowing a married person to make an application for registration change;

enacting provisions that prevent a change of sex or gender from eliminating a person's entitlement under a will or trust, unless the will or trust provides otherwise;

enacting a provision that requires new birth certificates to only show an altered record of sex and/or gender, without a reference to indicate that a change has occurred;

prohibiting access to a birth certificate showing a person's sex and/or gender before the alteration of the record to anyone other than the person, a child of the person or a prescribed person; and

prohibiting the use of an old birth certificate that shows a person sex and/or gender before the record was altered.

The first key point to note here is the focus on ensuring a direct process for adults to make their own choices about their registered sex or gender. The current process is clunky and cumbersome and must be reformed. The other point to focus on is the ending of the practice of forced divorce when a married person changes their registered sex.

Sadly, we have not yet achieved marriage equality, and currently a person who changes their gender whilst in a heterosexual marriage must show proof of divorce before they can register their change of sex or gender. The Family Court of Australia has decided that, for the purposes of ascertaining the validity of a marriage under Australian law, the question of whether a person is a man or a woman is to be determined as of the date of the marriage. This bill means that a change in sex or gender would not prevent the marriage from remaining valid. The Law Society, who published their view of this bill this Tuesday, stated:

It is a basic right of human dignity to live a life in accordance with a gender identify you hold. Being forced to be formally classified as the opposite gender to that by which you identify yourself can be traumatic, dehumanising and, obviously, unfair.

The Law Society also made a formal submission around this bill in support of the initiatives included and I thank them for their support. This is not a perfect bill. It does not go far enough for many members of our community. I understand and respect this and I say to those people that this is not the end of this work. I say to them that progress, steps forward, are always a win.

I say to them that the struggles continue and I quote from President Obama's speech at the 2012 Democratic National Convention: 'If you turn away now, if you buy into the cynicism that says that change is impossible, change will not happen.' The changes we make here today will have real and genuine positive impact for members of our LGBTIQ community. I would not stand here today and advocate for these changes if I did not believe they would make life easier for people who have tragically and wrongly been marginalised and oppressed. I am proud to stand with our Premier and publicly state that we will not allow any members of our community to feel alienated by our laws.

History shows that all progressive change takes time. The changes we are making this year are a result of years of active community members working together to achieve results, step by step. In supporting this bill and commending it to this house, I pay tribute to the work of our LGBTIQ community to achieve this outcome over so many years. I look forward to continuing to progress legislation that supports, empowers and includes all South Australians. I look forward to passing this bill as another step on the road to progress. The fights are not yet won, but each day we edge a little closer. In passing this bill, we continue to move towards a community and legislation that are free of discrimination.

In closing, I place on record my sincere thanks to SALRI for its work on this and the other bills that move us closer to that place and also to Lachlan Cbich and Annetay Henderson-Sapr for their deep commitment to that end and for their extraordinary work and wise counsel on this bill. I again commend the Premier for his resolve to see this and these other bills progressed and pay tribute to his longstanding commitment to standing alongside our LGBTIQ community to end discrimination.

Finally, I extend and place on record my sincere thanks to Rhiannon Newman from my office for her relentless capacity to shine a light on the difficulties and inequities our most marginalised South Australians face and ensure they are afforded equal rights to equally participate in every aspect of community life. Happy 30^th, Rhiannon.

The house divided on the second reading:

While the division bells were ringing:

Ms Chapman interjecting:

The SPEAKER: The deputy leader will not disrupt the division.

Ayes 19

Noes 19

Majority 0

The SPEAKER: There being 19 ayes and 19 noes, I give my casting vote with the noes.

Second reading thus negatived.