Bills

Statutes Amendment (Gender Identity and Equity) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 19 May 2016.)

The Hon. S.G. WADE (15:34): I rise on the second reading of this bill to indicate that, while I am inclined to support the bill, I do have two issues that I wish to raise in relation to it. I look forward to the minister's response, hopefully as the second reading stage concludes and before we progress into committee.

On 9 March, the House of Assembly deleted a clause in the other place that would have introduced gender neutral language into the Criminal Law Consolidation Act provisions relating to medical termination of pregnancy. Before the vote was taken, the honourable member for Newland sought clarification from the parliamentary secretary who had carriage of the bill:

My understanding of the situation is that, for the purposes of the Criminal Law Consolidation Act (where these provisions are), if you are pregnant, in the eyes of the law you are a woman regardless of how you view yourself and how you identify and regardless of the gender that you assign yourself. In the eyes of the law for the purposes of the Criminal Law Consolidation Act you are in fact a woman; therefore we are not creating a loophole. I just want the parliamentary secretary to confirm whether or not that is correct.

The member for Reynell responded: 'Yes, I can confirm that is correct: we are not creating any sort of loophole through this clause.' My reading of the debate is that that interchange would have led honourable members to understand that leaving the Criminal Law Consolidation Act unamended, that is by deleting the amendment of the CLCA proposed by the bill, would mean that the act would apply to any person with the capacity to bear a child. I want clarification of the parliamentary secretary's advice and further advice as to whether the answer given was given on the basis of formal legal advice.

The issue is that the CLCA could be read narrowly as applying only to a person born as or identifying as a woman. If the law was to be so read, the law could be undermined, especially given the capacity for people to change gender. A relevant case might be a person who was born a woman and who goes on to identify as a man but is either in the process of, or is not intending to undergo, medical procedures to remove their childbearing capacity. I appreciate that this may not be a frequent occurrence, but nonetheless it is not insignificant.

Our laws on medical termination of pregnancy reflect a delicate community consensus to protect human life or potential life. In my view, we need to be careful not to undermine them. I ask the minister a series of four questions:

1. Will the CLCA provisions relating to the medical termination of a pregnancy apply in relation to any person, whether or not they are biologically a woman or identify as a woman?

2. To put the question in another way, will the provision apply in relation to any person with childbearing capacity, whatever their gender identity?

3. Does the government have formal legal advice on this issue?

4. Where did the government obtain that legal advice from?

The second issue I want to raise relates to the definition of gender diversity. I appreciate this is a dry matter of statutory drafting. This is not the first bill before the parliament that refers to gender diversity. In 2005, the Hon. Kate Reynolds MLC introduced a bill to amend the Equal Opportunity Act, which included a definition of gender identity which read as follows:

…gender identity means the condition of being a person—

(a) who identifies on a genuine basis as a member of the opposite sex by assuming characteristics of the opposite sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the opposite sex; or

(b) who, as a person of indeterminate sex, identifies on a genuine basis as a member of a particular sex by assuming characteristics of the particular sex (whether by means of medical intervention, style of dressing or otherwise) or by living, or seeking to live, as a member of the particular sex.

Basically the same words were incorporated into the Equal Opportunity Act in 2009 by a government bill, not as a definition of gender identity but as a definition of 'chosen gender'. In the second reading speech, the Attorney-General on that bill said that 'the person's chosen gender is his or her self-identification as a member of one or the other sex.' On my reading, whilst self-identification was accepted as the key element, the definition basically retains a binary structure. In other words, the Attorney said 'self-identification as a member of one or the other sex'. A person of indeterminate sex is seen to be associating with one sex or the other.

In 2006, a group of international human rights experts produced the Yogyakarta Principles, non-legally binding international principles relating to sexual orientation and gender identity. In particular, principle 3 provides, in part:

Each person's self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.

My concern is that the definition in the bill before us seems binary and, in my view, is less clear in the focus on self-identification than the current definition of 'chosen gender' in the equal opportunity bill. The definition proposed by this bill reads:

gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the persons designated sex at birth;

In the second reading of this bill, we were told:

The majority of the proposed amendments are aimed at removing binary notions of sex (eg, male and female) and gender (eg, man and woman) or provisions that fail to set out how the law applies to a person who is intersex or gender diverse.

As I said, I am concerned that the clause in this bill seems to have less of a focus on self-determined identity and seems quite binary. I appreciate that the bill is based on the 2013 amendments to the commonwealth Sex Discrimination Act, but I note that since then the Australian Government Guidelines on the Recognition of Sex and Gender defines 'gender' in a significantly less binary way. In those guidelines, it states:

Gender is part of a person's social and personal identity. It refers to each person's deeply felt internal and individual identity and the way a person presents and is recognised within the community. A person's gender refers to outward social markers, including their name, outward appearance, mannerisms and dress. A person's sex and gender may not necessarily be the same. An individual's gender may or may not correspond with their sex assigned at birth, and some people may identify as neither exclusively male nor female.

Shorter but similar definitions appear in the Yogyakarta Principles and indeed in the South Australian Law Reform Institute's February 2016 discussion paper on recognition of gender.

Basically, I asked the minister whether the bill before us offers the best definition of gender identity both in terms of making clear that gender identity is primarily self-defined and in terms of making clear that gender identity is not binary. I seek the government's view.

The Hon. T.T. NGO (15:42): I rise to very briefly discuss the Statutes Amendment (Gender Identity and Equity) Bill. In terms of the bill itself as presented to the council, even though it is a government endorsed bill, it has still been determined to be a conscience vote by our caucus. I want to take this opportunity to thank both the member for Newland and the member for Schubert for a series of amendments that they moved in the other house on this bill.

While it seems that many of the changes outlined in this bill are non-controversial, I think important amendments were made. Amendments which establish a clear delineation that, when considering certain matters, sexuality should be the highest consideration, as opposed to gender. The most obvious issue dealt with by the other place was the matter of pregnancy. The member for Schubert, I think, expressed these concerns clearly. When referring to pregnancy, he stated, and I quote from Hansard:

…what we are seeking to change here is not anything to do with gender identity: it is to do with sex. What we are talking about here is changing something that should otherwise be a statement of biological fact, in that a woman is the person who can get pregnant, and trying to turn it into a gender [equity] issue.

Given the amendments made by the other house, I would be satisfied enough to endorse this bill in the form it passed in the House of Assembly.

The Hon. R.I. LUCAS (15:44): I rise to speak to the second reading and indicate that I will support the second reading and look forward to the debate at the committee stage of the legislation. Indeed, as I think other members have commented, while it is not always the case in the House of Assembly, there was quite a detailed and sensible discussion on some aspects of the legislation of this bill. I also acknowledge, as has the Hon. Mr Ngo, the work that was done by the member for Newland, the member for Schubert and others in relation to making significant amendments to the legislation, which the Hon. Mr Ngo indicated that he supports.

My contribution will essentially involve putting a series of questions to the government, or the minister who is handling the bill on behalf of the government. I understand it is a conscience vote, but I think it is a government bill, so I will put a series of questions to the minister. The first question is relatively simple. In the second reading explanation by the Premier and by the minister introducing the bill in this house, who I think was minister Maher—is minister Maher handling the bill, or are you handling the bill?

The Hon. I.K. Hunter: No, I am handling it; he introduced it.

The Hon. R.I. LUCAS: The bill was actually introduced in this chamber by minister Maher, so I refer to the second reading contribution he made in this place, and that of the Premier in another place. According to the Premier and the minister, the government makes a number of wideranging comments in relation to the lesbian, gay, bisexual, transgendered, intersex and queer (LGBTIQ) community.

For the benefit of the many tens of people throughout South Australia who read the Hansard debates, I ask the minister if he, on behalf of the government, would provide definitions for lesbian, gay, bisexual, transgender, intersex and queer people to assist those who follow this particular debate, and to provide some guidance to members of parliament like myself who are not as well versed in the precise definitions as perhaps some other members of the chamber and the parliament might be.

It seems to be that minister Close in another place handled the committee stage and answered the questions on behalf of the government. At one stage in her contribution, in referring to the intersex community, she indicated that meant persons identifying as neither male nor female. Her advice was that there were only something like three persons within Australia who identified in that particular community.

My question to the minister representing the government is: given that minister Close has identified that the size of the community, at least to the minister and the government's knowledge at that stage, was three, are any of those three persons currently residents of South Australia? To the government's knowledge, does the legislation, insofar as it refers to the intersex community in South Australia, refer to anybody, or are those three persons minister Close has referred to actually residing in states other than South Australia?

Thirdly, I want to raise a question in relation to clause 6 of the legislation—Gender balance in nomination of persons for appointment to statutory bodies. It provides:

(1) Section 36A(5)—before the definition of non-government entity insert:

man includes a person who identifies himself as a man regardless of the 25 person's designated sex at birth;

(2) Section 36A(5)—after the definition of non-government entity insert:

woman includes a person who identifies herself as a woman regardless of the person's designated sex at birth.

The Hon. Mr Wade referred to this in part in his contribution and asked some questions in relation to self-identification. There was some significant debate in the second reading and the committee stage in the House of Assembly in relation to this issue. One particular member raised the prospect that they would be looking at the possibility of an amendment in relation to this area. As it turns out, looking at the debate, there was no amendment and it was left essentially as a question as to whether or not an amendment would be sought between the houses.

The question leads on to some of the other contributions in the final area of questions that I have for the minister in relation to this notion of, in essence, self-identification. Whilst different, there is at least some small similarity in relation to the current debate that is going on in relation to persons who, I do not think the word is used exactly, but in terms of persons who claim Aboriginality. In essence, they claim that they happen to be of Aboriginal origin and there are obviously significant issues that flow from that.

There has been some recent research at the national level, and this is not the point of my contribution in this particular debate, which is now raising questions about the authenticity of some of the claims of various people in Australia and the numbers of those people who are claiming, through self-identification, that they have Aboriginal heritage and whether or not they are entitled to some of the benefits that might accrue from that particular claim.

In this case, on the surface, and again I do not profess to be an expert, what it appears to be saying is that if you are born and your birth certificate indicates that you are female, but if you self-identify at some stage, you can self-identify as a man and vice versa. The issue for me is, what is the process for that? Is it simply that one day you have a situation where your birth certificate says that you are a male, you then self-proclaim and say you identify as a female and this legislation, and what flows from it, will flow on from that immediately?

There was some debate about this in the House of Assembly. It comes back to the issue of what is the current process and should there be some sort of a process. I acknowledge the tremendous conflict that an individual in this position might well feel and that in most cases, I am sure, will be a process of coming to a decision over a period of time where they self-identify, in the example that I have given, as a female. The issue is, and some options were raised in the House of Assembly, whether or not there should be some process where a person, having gone through that difficult deliberation, eventually goes through a process which in some ways validates it.

I am not saying it validates this in a medical sense or anything like that (that is, their male or female genitalia have to be altered in some way or whatever), but in some way the process comes to a conclusion, a recognition, or whatever it is, so that—and there are questions I am going to ask afterwards in relation to some of the legal implications—that person, who may well have been born and have the birth certificate which indicates they are male, has self-identified through some sort of a process and now identifies themselves as a female and that there is something which indicates that that has happened.

I am not proffering any concluded view on what that something is, but I am questioning whether it should be that something has to occur, some process has to be gone through, or some recognition that that process has been gone through and there is something by way of a registration (I think one of the members in the lower house talked about the fact that it appeared to be, although no detail was given, about an amendment to the birth certificate or whatever it might happen to be, but the idea was not explored in any great detail), or whether or not there should not be some capacity to have something that is recognised.

I raise that question because I wanted to then raise some questions in relation to what might ensue from this particular definitional change. The Hon. Tom Kenyon, in his contribution during the committee stage, referred to a set of circumstances where a person, a male, who perhaps did not genuinely have that particular view but nevertheless self-identified as a female for reasons of gaining access to a female toilet or a female change room. The Hon. Tom Kenyon was raising a set of circumstances not of someone who has genuinely gone through this process over a period of time and self-identified and that they identify as a female, even though their birth certificate says they are a male. He was asking: what is it that prevents a male from self-identifying and just saying, 'I'm a female', putting on a dress, a skirt or whatever it might happen to be, and going into the female change rooms and the female toilet?

There did not appear to be any response to the issue that the Hon. Tom Kenyon raised in the House of Assembly. If that person has gone through this process, self-identified and there was some validation in some way of that, that is, they are able to demonstrate either to the gym owner or various other authority figures in relation to public toilets or change rooms, school change rooms or whatever it might happen to be, at least there is something that indicates that this person, having gone through whatever process it is, whilst their birth certificate might indicate they are male, they have self-identified as a female, and that is the justification for their being in the female toilet, the female change room or the female facility in some way.

My questions, which I leave to the minister at the end, are: I am assuming that the current law is that, if a male simply dresses as a female and goes into a female toilet or a female change room, they have committed an offence and would be charged under the Criminal Law Consolidation Act under some set of charges at the moment. I am not sure what are those charges, but I assume there is an offence and that the police would charge such people. I seek an answer from the minister in his response to confirm that that is the case.

With the passage of this legislation, does that situation change at all? I hasten to say that, if someone has been through what I have indicated is a period of time, a genuine process of no longer believing that their birth certificate is right, that they were male and they self-identified as a female (that is one set of circumstances), but how do we prevent the other set of circumstances where someone has not been through that process and is just using this as a device to gain access for reasons of perversion and otherwise to female toilets and female change rooms?

What will be the legal situation in relation to that? Will police still be able to charge a person in those circumstances with the same offences as they currently can, and can we be assured that the legislation will not be able to be used by a clever criminal lawyer to say that the male had self-identified the day before as a female and was therefore entitled to access to female change rooms and female or girls' toilets in that particular way?

They are really questions that I put to the minister. If he is responding at the second reading today he obviously will not be in a position to give a detailed response to those but when we get to the committee stage, as the Hon. Mr Wade has put a series of questions, hearing the minister's answers and, subject to those answers, I reserve a position as to whether or not I will be seeking to move amendments at the committee stage of the debate.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (16:00): I assume there are no more contributions so I rise to conclude the debate today. I would like to thank honourable members who have participated in the debate so far. The Statutes Amendment (Gender Identity and Equity) Bill 2015 seeks to ensure that our legislation is inclusive of all gender identities, including transgender and intersex. At its heart it amends the language used to interpret gender whilst removing outdated and archaic references. This is the first of many bills that this government will champion this year to ensure that all discrimination against LGBTIQ people is removed from our laws.

I would like to take this opportunity to address some of the issues that have been raised in the second reading contributions both here and in the other place. Questions were asked in the House of Assembly about eligibility for board membership. The gender balance on boards provision is an effective measure to ensure diversity is achieved in our statutory appointments. The amendment requires that where a person identifies as a particular gender, other than what is listed on their birth certificate, they will be eligible for nomination to a statutory body in a position aligned with the gender they identify as.

This amendment ensures that we are not discriminating against people who firmly identify as a certain gender but otherwise by reason of their biology or their DNA are not able to take up a position for the gender with which they identify themselves. Intersex people are not contemplated in this amendment, I am advised. They continue to remain eligible for board membership but it is for the individual body to determine how they manage the situation. I am advised, as the Hon. Mr Lucas intimated, that there are extraordinarily few people in Australia who legally identify as intersex and therefore it is thought best to be dealt with on a case-by-case basis.

In terms of the introduction of the gender diversity and intersex status in legislation on matters including sporting clubs, toilets and correctional facilities, the premise of this statutes amendment bill is to ensure that language in our laws does not have the effect of discriminating against people on the grounds of their sexual orientation, gender, gender identity or intersex status. These amendments do not place an additional burden on clubs, associations and public authorities to introduce such facilities—for example, intersex toilets or change rooms. Individual associations and organisations will deal with this issue by the implementation of policy that is suitable for their respective organisation.

The Department for Correctional Services and SA Police, I am advised, have policies in place that contemplate the needs of transgender and intersex people and the Equal Opportunity Act 1984 provides specific exemptions to discrimination in sport. This amendment bill in no way changes the operation and scope of these exemptions.

In relation to amendments to remove references to terms associated with marriage, the South Australian Law Reform Institute's Initial Audit Report reviewed South Australian laws to identify instances of discrimination on the grounds of sexual orientation, gender, gender identity and intersex status. This mandate covered discrimination on the grounds of gender. The Law Reform Institute identified various provisions in our laws that discriminated against women based on their marital status. These provisions are outdated and are no longer required. These provisions have had historical importance as they serve to remove the legal disability faced by women whose legal status was not treated separately from their husbands. I am advised that no rights or responsibilities currently experienced by married persons in Australia are lost by these amendments.

In reference to a pregnant person, the South Australian Law Reform Institute recommended amending clauses relating to pregnancy to remove binary references to gender. The bill was amended to remove clauses that dealt with references to pregnancy and pregnant women in the other place. Had those acts been amended as proposed, it would have been clear that all circumstances of pregnancy were covered. Having removed these amendments, the application of the current legislation to pregnant men is arguably less clear and it would be a matter for the prosecuting authority and the courts to determine how that legislation is applied in those circumstances.

In relation to questions asked in this chamber by the Hon. Tammy Franks, she raised an issue on behalf of Mr Andrew Birtwistle-Smith, whose husband died in 2015 and who wishes to have the marriage recognised on his deceased husband's death certificate, as is, of course, the case of Mr David Bulmer-Rizzi. Births, Deaths and Marriages advise that upon receipt of a certified copy of his marriage certificate the Registrar can annotate the certificate to note that the registrar has sighted a Canadian marriage certificate, issued under the law of that country. Mr Birtwistle-Smith has been written to, to pass on the sincere condolences of the government and to advise him of this process. It is important that the recognition of valid same-sex marriages is dealt with systematically, as opposed to on an ad hoc basis, and accordingly the government looks forward to receiving the report of the SA Law Reform Institute on relationships recognition and implementing the recommendations of that report.

The Hon. Dennis Hood made some comments on gender dysphoria. In his second reading speech the Hon. Dennis Hood quoted at length from the American College of Paediatricians (ACP) noting their view that human sex is binary and that gender dysphoria is a mental disorder. Although the name, American College of Paediatricians, sounds like a credible professional organisation, in fact the recognised professional organisation for paediatricians in the United States is the American Academy of Paediatricians (AAP), which I am advised has over 60,000 members. By contrast, the ACP has a membership estimated at 60 to 200 people, and has been designated, I am advised, a hate group of the Southern Poverty Law Centre in the US, placing it in the same category as the Ku Klux Klan.

The 36,000-member American Psychiatric Association, which defines mental illnesses through its Diagnostics and Statistics Manual of Mental Disorders, says the exact opposite. They says: 'It is important to note that gender nonconformity is not in itself a mental disorder.' I am advised that the Australian Medical Association has advised that the Royal Australian College of Physicians and the Royal Australian and New Zealand College of Psychiatry are both specialist colleges that have experience dealing with gender dysphoria. The RACP in their November 2015 paper Sexual and Reproductive Health Care for Young People: Position Statement directly referenced the DSM-5. Gender Dysphoria is used to capture the experience of children, adolescents and adults whose biological sex is different to that gender they identify with, a mismatch that causes clinically significant distress. The American Psychiatric Association fact sheet for Gender Dysphoria under DSM-5 states the following:

DSM-5 aims to avoid stigma…It replaces the diagnostic name 'gender identity disorder' with 'gender dysphoria'…It is important to note that gender nonconformity is not in itself a mental disorder. The critical element of gender dysphoria is the presence of clinically significant distress associated with the condition.

Further, the fact sheet states:

Replacing 'disorder' with 'dysphoria' in the diagnostic label is not only more appropriate and consistent with familiar clinical sexology terminology, it also removes the connotation that the patient is 'disordered'.

The RANZCP advises that gender dysphoria is not in or of itself a mental illness, and that it is a complicated issue that results in complex issues as a result for individuals. The Royal Australian College of General Practitioners in their November 2015 Australian Family Physician publication, includes a journal article on gender dysphoria. The article includes the following:

Perceived inconsistencies between one's biological sex and gender identity are often accompanied by significant distress and the onset of gender dysphoria. In the fifth edition of the diagnostic and statistical manual of mental disorders (DSM-5), the term 'gender dysphoria' has replaced 'gender identity disorder'. This change in terminology removes the pathology from being transgender which is not a mental health condition.

The Hon. Mr Wade and the Hon. Mr Lucas put some more questions on the record, which I look forward to answering at the committee stage. I would again like to thank honourable members for their contribution and look forward to the speedy passing of this bill. I commend it to the house.

Bill read a second time.