Births, Deaths and Marriages Registration (Gender Identity) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (18:18): I move:

That this bill be now read a second time.

I seek leave to have the detailed explanation of the bill and clauses inserted in Hansard without my reading it.

Leave granted.

Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) people around the world continue to face wide ranging levels of discrimination because of their sexual orientation and gender identity. Unfortunately this discrimination means many LGBTIQ people feel unsafe, undervalued and isolated.

Just as all in South Australia, LGBTIQ people deserve to live their lives free from discrimination.

That is why, in 2015, the Government began the process to identify and remedy discrimination LGBTIQ people face due to our state laws. This commitment was announced by His Excellency the Honourable Hieu Van Le AC at the Opening of Parliament in 2015. In his speech, the Governor indicated that the South Australian Law Reform Institute would be tasked with reviewing all South Australian laws to identify discrimination on the grounds of sexual orientation, gender, gender identity and intersex status.

The South Australian Law Reform completed its review and released its findings in an Audit Report on 10 September 2015. This comprehensive review identified more than 140 pieces of South Australian legislation that discriminates on the grounds indicated above. In addition, the South Australian Law Reform Institute made a series of recommendations to redress this discrimination. These recommendations included action that could be enacted immediately and five broad areas that required further review prior to issuing recommendations to the Government. These broad areas include:

Registration and recognition of sex, gender and gender reassignment

Equal recognition of relationships and parenting rights

Surrogacy

Exemptions under the Equal Opportunity Act 1984; and

The operation of provocation laws in South Australia.

The Premier proudly introduced the Statutes Amendment (Gender Identity and Equity) Bill 2016 in Parliament this year to implement recommendations made in the South Australian Law Reform Institute's Audit Report. This Bill passed this Parliament on 26 July and laid the foundation for the broader reforms recommended by the Institute.

In February 2016, the South Australian Law Reform Institute released the first of its further reports concerning the registration and recognition of sex, gender and gender reassignment. In April this year, the Legislative Review Committee of this Parliament completed its review of the Sexual Reassignment Repeal Bill 2014. Both of these reports reviewed the manner in which sex and gender is legally recognised in South Australia and the process by which people undertake to have this legal registration changed to accurately reflect their gender identity.

The South Australian Law Reform Institute and the Legislative Review Committee received various submissions describing the difficulty members of our community face when seeking to have their sex or gender identity legally changed. One person was quoted as saying:

Although I have been classified as a transgender female by two psychiatrists qualified and expert in the field, and have been placed on appropriate hormone treatment and live publicly as a female (in my case with the public profile that I have), I cannot however be registered as a female in this State. The only basis upon which I can be registered as a female is by having gender reassignment surgery. This is both archaic and anachronistic.

Another person described the difficulty of not having appropriate categories to choose from when required to specify their gender identity on forms and documentation:

Here are two boxes and you must pick one. An easy choice for someone who feels comfortable picking one. The most stressful choice ever for someone that looks at those two boxes and can't see their option that makes them feel comfortable... Thus where is the my option to simply state not specified and be able to remove that dreaded marker from my record from the day I was born which I maintain was in error.

It is clear from the reports of the South Australian Law Reform Committee and the Legislative Review Committee that immediate change to the law is required.

Firstly, both the South Australian Law Reform Institute and the Legislative Review Committee recommended repeal of the Sexual Reassignment Act 1988. Currently the Sexual Reassignment Act 1988 provides the only means for a person to change their registered sex or gender on their South Australian Birth Certificate. In its report, the Legislative Review Committee noted that the Act was well intentioned legislation at the time it was enacted, and was the first of its time in Australia. However, both the South Australian Law Reform Institute and the Legislative Review Committee submit that the Act is no longer appropriate and its provisions are outdated. This Bill will see this Act is repealed.

To replace this outdated scheme, the South Australian Law Reform Institute and the Legislative Review Committee recommended amendments to the Births, Deaths and Marriages Registration Act 1996 to provide for a simpler and less invasive process for people to change their registered sex or gender identity on the formal record. These recommendations are broadly consistent with one another.

Although both reports recommended the need for a clearer, more direct process, each report provided an alternative approach to the application process for both adults and children. The South Australian Law Reform Institute recommended that to process a change, the Registrar must not require evidence that the applicant has undergone sexual or gender reassignment treatment. Conversely, the Legislative Review Committee recommended that applicants provide a statement from a medical practitioner stating that the applicant has undergone or is undergoing appropriate clinical treatment. The Committee expressly stated that hormone treatment or sexual reassignment treatment are not to be a pre-requisite for establishing 'appropriate clinical treatment'. Unlike the current requirements in South Australia, appropriate clinical treatment can be in the form of counselling from a trained professional. This is a far less invasive approach, however one which ensures that people access some level of care and support during this process.

After close consideration of these alternative options, the approach recommended by the Legislative Review Committee was identified as the most appropriate for adoption. These recommendations are aligned to current Births, Deaths and Marriages Registration practices in South Australia and share consistencies with Commonwealth process, in particular, registration of alterative sex or gender on Australian passports.

These amendments have been drafted with appropriate safeguarding measures, in particular, measures to ensure the effective control and management of sensitive information.

On 4 August the Births, Deaths and Marriages (Gender Identity) Amendment Bill was proudly introduced into this Parliament. This Bill was the next step in a suite of legislative reforms aimed at removing discrimination experienced by Lesbian, Gay, Bisexual, Transgender, Intersex or Queer (LGBTIQ) South Australians.

Unfortunately, on 22 September 2016, the Bill was defeated by a vote in this House during its second reading.

Despite this, the Government's commitment to LGBTIQ people and removing discrimination remains steadfast. It was to this end that the Premier introduced a revised Bill in the other place, the Births, Deaths and Marriages Registration (Gender Identity) Amendment Bill 2016, to ensure that these reforms are progressed.

This revised Bill is a result of strong consideration of the diverse views previously expressed by members of this Parliament and the broader community.

The revised Bill remains predominantly consistent with the earlier Bill. Unlike the earlier Bill however, this revised Bill features the following amendments:

Magistrate Court approval must now be sought for a child (under the age of eighteen) seeking to register a change of sex or gender identity (previously, it was proposed that Magistrate approval only be required for children under the age of sixteen); and

The requirement that the Registrar for Births, Deaths and Marriages must retain all historical information preceding a change of sex or gender identity on the register in addition to limiting access to this historical information as a privacy protection measure.

Before the Bill was passed in the other place, it was further amended, to now require that a person must first have received a sufficient amount of 'appropriate clinical treatment' prior to being eligible to apply for a change to be made to their birth registration. With respect to counselling as a form of 'appropriate clinical treatment', the bill was additionally amended to provide that clinical treatment constituted solely by counselling must first satisfy a prescribed period before it is acknowledged for the purposes of changing a person's birth registration.

The Government remains strongly committed to ensuring that discrimination based on LGBTIQ status or gender is struck from our statute book. It is not good enough that we continue to have people feeling unsafe or undervalued in our community.

As stated in the Australian Human Rights Commission's 2015 Report, Resilient Individuals, 'most Australians take their identity documents for granted.' For many in our community, these changes will have little or no impact, but for those who are impacted, these changes will be significant. Our people deserve a system that is respectful, direct and easy to navigate and it is hoped that these reforms will go far to achieving this outcome.

This Government is fundamentally opposed to South Australian LGBTIQ and gender diverse people facing discrimination at the hands of our very own laws. Much more is required to ensure every area of discrimination is erased, and that as a community we celebrate the rich diversity amongst us.

Our fellow LGBTIQ South Australians are valued members of our community and it is my aim to ensure that like their peers, LGBTIQ people feel valued, safe and are given every opportunity to thrive in South Australia.

I commend this Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Births, Deaths and Marriages Registration Act 1996

4—Amendment of section 3—Objects of Act

The objects of the Act are amended to reflect the scheme for changing sex or gender identity.

5—Amendment of section 4—Definitions

The definition of registrable event is amended to reflect the scheme for changing sex or gender identity.

6—Insertion of Part 4A

New Part 4A is inserted:

Part 4A—Change of sex or gender identity

Division 1—Preliminary

29H—Preliminary

Definitions and an interpretative provision are inserted for the purposes of the measure.

In particular, an interpretative provision is inserted to provide that clinical treatment constituted by counselling only cannot be regarded as a sufficient amount of appropriate clinical treatment (for the purposes of the Part) unless the period of the counselling is equal to or greater than the prescribed period.

Division 2—Applicants born in South Australia

29I—Application to change sex or gender identity

Persons 18 or older born in the State may apply for registration of a change of their sex or gender identity.

The regulations will recognise kinds of sex or gender identities that may be registered.

29J—Application to change child's sex or gender identity

A parent or guardian of a child under the age of 18 years may apply for registration of a change of the child's sex or gender identity.

29K—Material supporting application

An application must contain evidence from a medical practitioner or psychologist certifying that the person has undertaken a sufficient amount of appropriate clinical treatment in relation to the person's gender identity or specified evidence from another jurisdiction.

29L—Change of sex or gender identity

The Registrar may register a change of sex or gender identity.

29M—Special provision relating to access to Register and issue of extracts and certificates

Provision is made in relation to access to the Register and issue of extracts and certificates from the Register after a person has had a change in their sex or gender identity registered. Historical entries in the register will be maintained but access to those will be strictly limited.

29N—Use of old birth certificate to deceive

An offence is prescribed (in relation to a person whose sex or gender identity has changed) of producing a birth certificate that shows a person's sex or gender identity before the registration of a change to deceive.

Division 3—South Australian residents born outside Australia

29O—Application for identity acknowledgement certificate

Persons 18 or older born outside Australia whose births are not registered in another State or Territory and who are resident here may apply for an identity acknowledgement certificate.

29P—Application for identity acknowledgement certificate in respect of child

A parent or guardian of a child under the age of 18 years born outside Australia whose birth is not registered in another State or Territory and who is resident here may apply for an identity acknowledgement certificate.

29Q—Issue of identity acknowledgement certificate

The Registrar may issue an identity acknowledgement certificate.

29R—Effect of identity acknowledgement certificate

It is provided that a person issued an identity acknowledgement certificate is of the sex or gender identity specified in the identity acknowledgement certificate.

Division 4—General provisions

29S—Registrar may limit number of applications

The Registrar is authorised to determine a limit on the number of applications that may be made in respect of a person under the Part.

The Registrar may refuse to deal with an application in excess of the limit. An appeal against the refusal is provided for.

29T—Entitlement not affected by change of sex or gender identity

A person who has an entitlement under a will, trust or other instrument does not lose the entitlement only because of a change in the person's sex or gender identity or the issue of an identity acknowledgement certificate (unless the will, trust or other instrument otherwise provides).

29U—Change of sex or gender identity—interaction with other laws

An interpretative provision is included to the effect that a person who has changed their sex or gender identity or has been issued an identity acknowledgement certificate under the Part will be taken to have satisfied a requirement under another Act or law that the person provide details of their sex if the person provides details of their sex or gender identity as changed.

Schedule 1—Repeal and transitional provision

1—Repeal of Sexual Reassignment Act 1988

The Sexual Reassignment Act 1988 is repealed.

2—Transitional provision

A provision is included that continues in effect a recognition certificate issued under the Sexual Reassignment Act 1988 before its repeal (so that those certificates may continue to be registered).

Debate adjourned on motion of Hon. S.G. Wade.