Statutes Amendment (Gender Identity and Equity) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 14 April 2016.)

The Hon. T.A. FRANKS (15:37): I rise on behalf of the Greens today as the gender and sexuality spokesperson, and indeed the only gender and sexuality spokesperson in this parliament, to speak to the Statutes Amendment (Gender Identity and Equity) Bill 2016. We warmly welcome the introduction of this bill, which seeks to address some of the legacy and history of discrimination that occurs to our citizens on the basis of their sexual orientation, gender, gender identity and intersex status under South Australian legislation.

I note that while this is the first bill that we are debating and it largely addresses the discrimination that exists in the language currently in our various statutes and practices, it is to be the first of a raft of other pieces of legislation. It arises from the Address in Reply speech made at the beginning of the parliament in 2015, and here we are, almost halfway through the parliament in 2016, finally debating this bill. That is somewhat disappointing. While the wheels of parliamentary change do turn slowly, I think most people would have to agree that that is a little too slowly when you are addressing areas of discrimination.

The Greens note that this bill is the first of several that will arise from the work and the reports of the South Australian Law Reform Institute (SALRI), which has been given an LGBTIQ reference by the Premier. I note that the Greens certainly made a contribution to that review. We look forward to seeing all of the areas of discrimination against people on the basis of sexuality, gender and gender identity in this state eradicated by the end of this calendar year.

The bill in front of us, as I say, largely deals with the language. It is what you might refer to as somewhat of an administrative bill. It certainly has been a challenge to the other place, which does not often devote a large amount of time to debating what are called 'conscience issues'. I understand that this is to be a conscience issue for the government, given the content of gender identity and sexuality. In the other place, as those in this chamber have learnt, much to our frustration in some cases, there is not a great deal of time spent debating private member's business or these conscience issues, and so I understand that, in the other place, the government had to create some new mechanisms.

Carriage of the bill was allocated to certain members of the government benches, not on the basis of portfolio but on the basis of willingness and interest, and also there were whipping arrangements and government time, most importantly, government debating time, given to this bill to progress it. Had that not occurred—and I commend the Premier for his leadership in ensuring that that did occur—I think we would not even be seeing this bill before us, as slowly as it has made its way here, it probably would have been some many more months before this chamber was to debate it.

I know in this chamber that we are not afraid to actually do the job we were elected to do, which is to debate legislation and then to vote on it; unlike the other place where conscience votes, time and time again, are stalled and stymied, and seem too hard for those members to get to that point where they actually exercise their votes. This chamber, I know, is quite comfortable with doing the job that we were elected to do. I look forward to a respectful debate. A debate where I know that we will all have a variety, a spectrum, if you like, of opinions, different views on different parts of this legislation, but a debate that I know will eventually reach its rightful conclusion.

The Greens are a little disappointed that this bill is simply correcting the words. That is an important part of the process; to get the language right in our laws is a mark of respect. To actually work for equality, to actually start changing the laws that, to this day and after this bill will be passed, continue to discriminate against members of our community. The laws discriminate against Andrew Birtwhistle-Smith, who lost his husband Christopher, his husband of 11 years, to whom he was married in Canada some 11 plus years ago.

Mr Birtwhistle-Smith lost his husband and had to go through a process that was brought to national attention when Marco Bulmer-Rizzi had to go through a similar process. A UK man who came here on his honeymoon, with his husband David, and unfortunately and tragically David lost his life in our state. Both Andrew Birtwhistle-Smith and Marco Bulmer-Rizzi, one a South Australian citizen, the other a UK citizen, had to go through that same horrific procedure of having their marriages and their husband's existence denied by the South Australian bureaucracy. The South Australian computer said no to both of those bereaved men.

The Greens want to see change come, and change come soon for people like Marco and Andrew and others who transition gender in this state, who have to jump through impossible hoops. I know that the Sexual Reassignment Act is soon to come into this place in some form or another for debate as a result of the SA Law Reform Institute's recommendation, but for many decades we have had a system that is unworkable, untenable and impossible for people with regard to changing their gender identity and being the people that they are. Again, our computers say no. It is not good enough for South Australian computers to be saying no, when we know that these are matters of fundamental and basic human rights and respect.

It was very disappointing, however, that the South Australian Law Reform Institute references began with an indication that no submissions were to be made on the subject of marriage. That was the first few paragraphs once you logged onto the website to make a submission to this process. That is quite disappointing. Not to be deterred by that, I simply noted that there was a range of areas that the state could act on with regard to marriage. I certainly take the George Williams position that there is potential for states to act on marriage. Certainly, an ACT bill has failed the High Court challenge, but that is not a state bill and not a bill that was drafted to the advice of both George Williams and Australians for Marriage Equality. There is still scope for states to act on that.

Regardless, SALRI in its wisdom, and under direction possibly from the Premier, stated that marriage was not to be considered. Same-sex marriage can be considered under our state's laws and since then, with those tragic deaths, and the tragic death in particular of David Bulmer-Rizzi, I note that the Premier has said that this state will act to legislate in this area and has added that to the list of things. Of course, he could also add to the list of things the forced divorce provisions currently under our Sexual Reassignment Act. Those couples who have married in other jurisdictions can now no longer actually access a divorce should their relationship disintegrate.

There is a range of other provisions around marriage, but of course marriage equality is not the be all and end all in the areas of law form required. Same-sex parenting is, of course, something that this parliament has debated before and was the subject of a Social Development Committee range of recommendations made in a report, but only one portion of that particular Social Development Committee report has yet been enacted. That was an area around female co-parents who had conceived through assisted reproductive technologies. A joint bill, sponsored by both myself and the member for Unley, that passed this parliament some years ago was the only part of that particular Social Development Committee report to make it through both houses of this parliament

That is to our shame. There was a raft of recommendations. They should have been debated; they should have been progressed through the parliament. We can see that hopefully happening in the future with future pieces of legislation. I cannot, of course, ignore the fact—and I bring it to members' attention—that I am moving an amendment to this bill that has been the subject of the second instalment of that female co-parenting, regarding those couples who conceive a child through assisted reproductive technologies who had not lived together prior to that conception for a period of three out of the former four years.

It is a curious South Australian anomaly that is under our domestic partnerships requirements, that should those two women who bring a child into this world willingly, consciously, using a sperm donor and going through an agency not have lived together for three of the past four years, they do not comply with that same-sex parenting recognition as they would if they lived in any other state or territory of this country and indeed as they should in this state. I will be moving an amendment that I have previously seen debated in this place and that we have seen slowly, as slowly as a snail—possibly slower—eke its way through this parliament. I know that it was debated yesterday in the other place, but I still do not understand quite what the outcome of that debate was, and I still have not seen a message returned to this chamber. We will persist, I think.

I will persist with my amendment to this government bill in the hope that something will actually start to progress for those parents who are waiting and young Tadhg who has now turned two and who still does not have a birth certificate that has both Elise and Sally as his rightful mums on that piece of paper because, of course, in South Australia the computer says no. If you are same sex or gender diverse, the computer says no. We cannot accept the computer saying no any longer. The parliament needs to start saying yes.

With those few words, there is a range of areas here that I look forward to further debating at the committee stage and I look forward to a respectful debate that recognises the realities of South Australian's lives and that recognises the lives of gender diverse and sexually diverse members of not only our community but visitors to our state when they come here, and ensures that in the future no computer says no and that we do say yes to human rights and to respect of diversity. With those few words, I commend the bill.

The Hon. J.A. DARLEY (15:50): I rise to speak very briefly on the Statutes Amendment (Gender Identity and Equity) Bill 2016 which, if passed, will implement the majority of the South Australian Law Reform Institute's recommendations dealing with discrimination on the grounds of sexual orientation, gender, gender identity and intersex status, and characterised as requiring immediate action by the government. I note that the most contentious aspect of the bill in its original form related to changes to terminology concerning pregnant women. I understand the concerns around those changes were addressed in the lower house and are therefore no longer an issue. This is a welcome development.

In relation to the bill as it stands now, I am inclined to support the views of the Deputy Leader of the Opposition, Ms Vickie Chapman MP, in the other place who, during her contribution to this debate, stated that she would be supporting the bill for the very reason that it does not attract a new set of entitlements or obligations, rather it removes words that have the effect of excluding others, in this case minorities. I agree that, on that basis, this bill ought to be supported.

Indeed, the progression of the bill this week would be even more appropriate given that just a few days ago communities around the world celebrated International Day Against Homophobia and Transphobia. Although not related, this bill also serves as a timely reminder for some other changes that the government is committed to concerning discrimination on our statute book.

Honourable members may recall media reports earlier this year regarding the tragic death of British man, Mr David Bulmer-Rizzi, who was honeymooning in Australia with his husband, Mr Marco Bulmer-Rizzi. David and Marco married in London last year. As members would be aware, same-sex marriages were legalised in the UK in 2014, so this was a legally recognised marriage. According to an article in The Advertiser, the couple were visiting Adelaide when tragedy struck and David lost his life after a fall down a staircase. Unfortunately, South Australian authorities failed to recognise Marco and David's marriage and, as such, Marco was effectively shut out of every decision pertaining to and following his husband's death.

To add insult to injury, the death certificate issued by the South Australian authorities failed to list Marco as David's husband. While same-sex marriages remain illegal in Australia, states are able to amend their laws to ensure that same-sex marriages performed overseas are recognised and to allow partners to act as next of kin. Indeed, at least some of our eastern state neighbours have amended their laws to reflect this position.

It is unfortunate and disconcerting that we were not in a position to afford David and Marco the respect they deserved when this devastating incident occurred. I remain deeply sorry that Marco had to endure further pain following the death of his husband because of outdated and archaic laws that had not kept up with societal changes. The Premier has indicated publicly and to Marco personally that examples of senseless discrimination such as this would be addressed through legislative amendments, and I for one look forward to the speedy consideration of such further reforms. With those few words, I support the second reading of the bill.

The Hon. D.G.E. HOOD (15:54): I rise to speak on the Statutes Amendment (Gender Identity and Equality) Bill. This bill proposes to amend a number of acts, as members would know, as a result of the recommendations from the South Australian Law Reform Institute's review of legislative discrimination on the grounds of sexual orientation, gender, gender identity or intersex status.

The fundamental purpose of the bill is to remove the so-called 'binary notions of sex'. That is the idea that sex is either male or female, or gender being only man and woman. Large parts of this bill, in my view, are unnecessary, although some parts of it do have merit.

This bill was debated and scrutinised at length in the other place, as members would be aware, and some of the more controversial clauses of this bill, debated in the other place, were indeed voted down. Amongst the clauses I refer to are those that intended to change the words 'pregnant woman' to 'a pregnant person' or 'someone who is pregnant'. This language infers that a person who is not a female would have the physical capability to fall pregnant and give birth. This is obviously wrong and unnecessary, and the majority of members in the other place agreed and voted it down. Common sense prevailed.

The American College of Paediatricians issued a statement on their website, www.acpeds.org, on 6 April 2016, just a few weeks ago, dealing with the issue of gender identity. The following quotes I am about to give are word-for-word quotes from the American College of Paediatricians website. The authors credited by this website for these statements are the following: firstly, Dr Michelle A. Cretella MD, President of the American College of Paediatricians; secondly, Dr Quentin Van Meter MD, Vice President of the American College of Paediatricians; and finally, Dr Paul McHugh MD, University Distinguished Service Professor of Psychiatry at Johns Hopkins Medical School and the former psychiatrist-in-chief at Johns Hopkins Hospital. I quote from their website as follows:

1. 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...This principle is self-evident. The exceedingly rare disorders of sex development (DSDs), including but not limited to testicular feminization and congenital adrenal hyperplasia, are all medically identifiable deviations from the sexual binary norm. Individuals with DSDs do not constitute a third sex.

2. 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. No one is born with an awareness of themselves as male or female; this awareness develops over time and, like all developmental processes, may be derailed by a child's subjective perceptions, relationships, and adverse experiences from infancy forward. People who identify as 'feeling like the opposite sex' or 'somewhere in between' do not comprise a third sex. They remain biological men or biological women.

Thirdly:

…When an otherwise healthy biological boy believes he is a girl, or an otherwise healthy biological girl believes she is a boy, an objective psychological problem exists that lies in the mind not the body, and it should be treated as such. These children suffer from [a condition known as] gender dysphoria…The psychodynamic and social learning theories of Gender Dysphoria have never been disproved.

And finally:

5. According to the DSM-V (Diagnostic and Statistical Manual of the American Psychiatric Association fifth edition) as many as 98% of gender confused boys and 88% of gender confused girls eventually accept their biological sex after naturally passing through puberty…

That is a long quote, but I believe it is worth putting on the record to inform the debate of some expert opinions. These quotes, from established, respected medical professionals speak for themselves. There are in fact only two biological genders: male and female; this is a biological fact. Claims that there are more genders have no basis in biological fact.

Moving on from this general point, which makes the bill largely unnecessary, in our view, there are some additional practical problems with this bill. Indeed, there are clauses contained in the bill that can create ambiguity and potentially lead to unintended outcomes. For example, clauses 9 and 10 of the bill, which deal with the Criminal Law (Forensic Procedures) Act 2007, change the definition of 'intrusive forensic procedure' to include the exposure of or contact with the breast region of a transgender or intersex person who identifies as a female. Under the proposed amendments, section 21(3) of the Act would stipulate the following:

If reasonably practicable, a forensic procedure that involves exposure of, or contact with, the genital or anal area, the buttocks, or the breast region of a female person or a transgender or intersex person who identifies as female, must not be carried out by a person of a different sex (other than at the request of the person on whom the forensic procedure is to be carried out).

It is proposed that an 'intrusive forensic procedure' is not to be carried out by a person of a different sex and, as previously noted during the debate in the other place, there is a potential issue where a so-called intersex person is the subject of an intrusive forensic procedure under the Forensic Procedures Act, or a search under the Correctional Services Act 1982.

To avoid infringing these proposed provisions, is it sufficient to have an intersex person conduct the procedure, or is it required that the person conducting the procedure not only be intersex but also identify as the same gender to which the subject identifies with? Where do we draw the line? It is simply not clear in this bill, and you can imagine there will be many practical problems if a person identifies as a sex and there is no-one of that same gender to search them. Evidently, aspects of this bill raise further questions, can create uncertainty, and could interfere with important and necessary evidence gathering procedures.

In response to these concerns, I have been advised by the government that there are existing police and correctional services policies and guidelines which deal with suspect and prisoner searches, and guidelines to handle situations where a suspect or prisoner objects. Perhaps the minister responsible for this bill could elaborate on this further in committee and explain to us how this may or may not be handled.

Notably, the section relating to intrusive forensic procedures also includes the words 'if reasonably practicable'. I would hope that this is a sufficient enough safeguard against unintended outcomes and to prevent a person unreasonably objecting to and avoiding important investigatory and evidentiary procedures based on a technicality. Political correctness must not override important police work.

As I indicated at the outset, however, this bill does contain reasonable amendments in addition to highly questionable ones. For example, the bill removes outdated provisions, such as section 44 of the Landlord and Tenant Act 1936, which implies that the main trade of a woman is sewing, typewriting and doing laundry—clearly an outdated view, and its removal will have Family First support.

Overall, there are some reasonable proposals contained in this bill, yet there are other aspects of this bill that can at the same time create uncertainty, as is typical with this type of legislation. We will monitor the debate. We are inclined to not support the bill, but we will monitor the debate and see where it all ends up. We are happy to support the second reading because, as I said, there are some aspects of this bill which are worthy of support, but we reserve our final position to see what the bill looks like in the end.

Debate adjourned on motion of Hon. J.S.L. Dawkins.