Bills

Sexual Reassignment (Recognition Certificates) Amendment Bill

Introduction and First Reading

The Hon. T.A. FRANKS (16:19): Obtained leave and introduced a bill for an act to amend the Sexual Reassignment Act 1988. Read a first time.

Second Reading

The Hon. T.A. FRANKS (16:20): I move:

That this bill be now read a second time.

This bill, the title of which does not indicate its full intent, is an amendment to the Sexual Reassignment Act 1988. However, I will refer to this bill as a bill to end forced to divorce in South Australia; that is, forced divorce for a person who registers a sex change in this state.

My bill is very simple. It removes one line from the current act, and that line, which is currently at section 7(10), provides:

A recognition certificate cannot be issued to a person who is married.

This bill will obviously be part of the marriage equality debate in this country—and, indeed, in this state—and I believe it is a bill whose time has come, because it does not respect the current lives of South Australians, particularly those who are married couples who are forced to divorce if they wish to undertake a sex change. I know that the numbers are very small, but those marriages are very important to those few individuals who are directly affected by this legislation.

The current Sexual Reassignment Act was debated in this place in the late 1980s and, at that time, there were many parts of that legislation which I think were quickly outmoded. At the time, at the Flinders Medical Centre we were seeing four or five sex change operations undertaken in that facility; that was reviewed, I believe, after the number of 30 of those procedures had been undertaken. Indeed, at the current stage we do not see a single sex reassignment operation happening in this state, yet the legislation does not reflect that. However, I will get to those points about the current overall inappropriateness of the act later on. We here simply to stop the forced divorce of those couples who are in love and married; indeed, in some cases who have been happily married for decades.

I have a story that has been shared with me by one of those couples. That person has generously chosen to provide me with their life story, although I have changed the person's name to protect their identity. It goes like this:

Hi Tammy, here is my story, perhaps you can use it.

In early 2012, I saw a psychiatrist for the first time, at the age of 42, regarding my gender issues. Long story short, on June 13 2012 I began HRT and started my journey to womanhood. Incidentally, by the end of August that year, I had weaned myself off double dose antidepressants that I had been on for over a decade. I simply no longer felt the need for them.

April 2013, perhaps sensing hope for a fulfilling life for the first time, I entered college, to study a diploma in counselling. I had been known there as River—

not this person's real name—

since May that year.

October 21 2013, I entered hospital to undergo irreversible gender-confirming surgery, and since then, my transition has really taken off. I have had numerous facial laser hair removal treatments, and will still need several more. The day before the Easter holidays this year, I received my new/updated birth certificate in the mail. I have since received a new Medicare card with my chosen name on it, am discussing my name change with the Australian Electoral Commission, and have made enquiries with my bank regarding changing my name there.

Indeed, since they wrote with this letter they have successfully changed their bank details. They continue:

My point in sharing all this is to hopefully convey some of the hope and desperation I have experienced which led me to undertake this journey, and to impart my belief that I had no choice in this matter, and how seriously I view it.

Now, here's the issue. I am happily married, and on 25^th of May this year my wife and I will celebrate our 20^th wedding anniversary. She has adapted to my changes remarkably well, as have our four children, who are quite happy with their new Mada. But, to complete this journey, and be recognised as the woman I have become, the government tells me I must destroy this happy marriage of 20 years, and break up my family, which is not going to happen. So, until this law changes I will be known as Mr River. Kind of silly, in my opinion.

Regards, River.

Kind of silly in my opinion as well, but also kind of cruel. How can we be saying to a couple who have been married for over 20 years, who have four children and who are loving and happy, that for one of them to fulfil their gender identity and be recognised as the person they have become they have to get a divorce? That is a cruel and, indeed, inhumane piece of legislation that we currently have in this state.

We are not alone in Australia in having legislation similar to this. Indeed, my Greens colleagues and the Independent member for the seat of Sydney will be moving similar legislation, certainly in the New South Wales parliament but I expect also in other parliaments around the country. In Victoria, Queensland, Western Australia and Tasmania I understand there are similar provisions in their particular acts and indeed in the Northern Territory, but in the ACT the legislation is silent on this issue; however, the practice is to require a person to be forced into divorce should they wish to undergo transition.

The law outside Australia, however, is more progressive. I would say there has never been a requirement in New Zealand for somebody to have been forced into a divorce. Indeed, in that country people can get married to the person they love regardless of their sex, gender or sexuality, and I believe that should be something to be replicated in South Australia.

The European Union gives many examples of countries that have allowed people to be recognised whether or not they have undergone a sex reassignment, or a gender reassignment. Indeed, in Finland in 2012 the European Court of Human Rights acknowledged that a forced divorce constituted an interference into the private life, a verdict that was passed down in the case of H v Finland. However, in some countries, including Lithuania and the Netherlands, people are allowed to stay married after changing their gender.

A publication in 2010 from the European Parliament Policy Development Department noted that most member states that required a married transgender person to divorce before their new gender could be recognised were potentially in breach of articles 7 and 9 of the Charter of Fundamental Rights (Respect for private and family life and Right to marry and right to found a family). Indeed, I note that in this country there is the potential that requiring a person not to be married to record a change of their sex may be inconsistent with the federal Sex Discrimination Act 1984. Indeed, the SDA, as many members would be aware, does prohibit discrimination on the ground of marital status in a wide range of areas.

With those few words, I will seek leave to conclude my comments at a later stage because there is a lot of movement on this issue around the country. As I say, other jurisdictions will be pursuing similar legislation, but we are awaiting legal advice from various sources and I will be happy to share that with this council. Indeed, I am happy to take stories from those in the South Australian community with whom the broader workings of the Sexual Reassignment Act 1988 are currently not reflecting the realities of their lives.

Most starkly, I point to those provisions where it was expected that surgeries would take place in this state. No surgeries take place in this state and yet the Minister for Health has been deemed as having to require to authorise those who undertake the surgeries as part of the process for recognition certificates to be assigned. That is clearly an example where the reality and the workings of this area of our state law does not reflect the reality of these people's lives. With that, I seek leave to conclude my remarks.

Leave granted; debate adjourned.