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

Second Reading

Adjourned debate on second reading.

(Continued from 29 November 2016.)

The Hon. J.S.L. DAWKINS (11:23): I rise to speak on the Births, Deaths and Marriages Registration (Gender Identity) Amendment Bill 2016. Firstly, I indicate that I will be a bit longer than the two previous speeches but probably not as long as the one on the next bill. I advise the chamber that I am not currently inclined to support this bill, certainly in its current form. However, if it is successful in making the committee stage, I will reserve my final position until the final make-up of the bill is clear. It is, of course, a conscience vote for members of the Liberal Party in this place.

It is important, when considering this bill, to remember that this is, in fact, Premier Weatherill's plan B. The original bill of a similar name was defeated by one vote in the other place while the Premier was in Finland. The bill was introduced into the other place on 2 November this year and was somewhat rushed through all stages while the house was also considering other significant social legislation, including the member for Morphett's voluntary euthanasia legislation. I must admit that I have formed the view that the bill has not reached this chamber after the more wholesome debate that other bills the Premier has been advancing have received.

I acknowledge that the bill was drafted in accordance with recommendations from the Legislative Review Committee of the parliament, and the South Australian Law Reform Institute. One of the principal aims of the bill is to make our laws consistent with those at a federal level. The provisions of this bill will also apply to anyone born in or outside of our jurisdiction. To those aims, I certainly do not object.

However, moving to the contents of the bill before us, it essentially repeals the Sexual Reassignment Act 1988 and establishes a new process under the Births, Deaths and Marriages Registration Act 1996 that would allow a person of any age to apply to change their recorded sex or gender identity. The other significant change which the bill proposes to make is for those wishing to legally change their sex or gender identity who, at the time of application, are over the age of 18.

Those individuals, under this bill, would now no longer be required to make an application to a court to have their sex or gender identity legally changed but, rather, make an application in an acceptable form to the Registrar of Births, Deaths and Marriages. The Registrar would then be in a position to alter the sex or gender identity of the individual on their register to whichever their application specifies, as long as they are in accordance with certain criteria. I will address those criteria later in this contribution. However, before I do I would like to speak about clauses 29J and 29P of the bill. These are the clauses referring to the ability to change the sex or gender identity of a minor.

While this provision still requires a minor, or their legal guardian, to make an application to a court for a change to their sex or gender identity, I cannot in any way support this provision. I am implacably opposed to the state giving the ability for parents, or their children, to legally change their sex or gender identity without the minor who is affected at least reaching the age of consent. These clauses form part of the reason for my opposition to the bill.

Moving to the criteria set by the bill which an applicant must satisfy to enable the Registrar to legally change their sex or gender identity, I have formed the view that in its current form these requirements are too lax. While the amendment moved by the member for Schubert in the other place did go some way to improving my view of these provisions, I still feel the criteria set to satisfy the requirement of sufficient amount of 'appropriate clinical treatment' is minimalist.

Essentially, the bill will take away the requirement that an individual wishing to change their sex or gender identity needs to undergo any kind of physical treatment or change before an application can be submitted. Clause 29H(1) of the bill provides:

…clinical treatment need not involve invasive medical treatment (and may include or be constituted by counselling);

Furthermore, following amendments in the other place, subclause (3) states:

(3) For the purposes of this Part, clinical treatment constituted by counselling only cannot be regarded as a sufficient amount of appropriate clinical treatment unless the period of the counselling is equal to or greater than the prescribed period.

That prescribed period will only be revealed in the regulations which, according to the briefing that I attended with other members of parliament and my staff, have not yet been contemplated. This minimalistic approach to the threshold required to initiate an application to change your registered sex or gender identity has the potential, in my opinion, for significant misuse, examples of which I will raise in questions to the minister at the conclusion of my contribution. Furthermore, the bill specifies an application may be made to the Registrar to change your registered sex or gender identity even if, and I quote from clause 29I(3), 'An application may be made under this section even if the person is married.'

While I respect the ruling made by the Full Court of the Family Court in the Attorney-General for the Commonwealth v Kevin and Jennifer, and Human Rights and Equal Opportunity Commission as intervener, 2001 FamCA 1074—otherwise known as Re Kevin and Jennifer—in which Chisholm J (Justice Chisholm) held that the question of whether a person is a man or a woman should be determined at the date of the marriage, and given the subject of this case was a man at the time of the marriage and only became a woman subsequent to the solemnisation of the marriage, the marriage was valid—I cannot support this clause.

I personally do not support the state enabling a situation whereby a marriage between a man and a woman conducted under commonwealth law could continue to legally exist if, under a state law, an individual has applied to alter their sex or gender identity, either via counselling or physically, to be the same as that of their partner in marriage. I would also like to place on the record my great concern about the proposal made in clause 29I(2)(a), and other places in the bill, which states 'specify a sex or gender identity of a kind recognised by the regulations that the person is seeking to have registered'.

I go back to the fact that to be doing these things by regulation, having had some experience of the way in which regulations can be manipulated or specifically delayed, is a real concern to me. My own experience in relation to birth certificates—my first surrogacy bill amended the Births, Deaths and Marriages Act to enable the biological mother of a child born by surrogacy to be listed on the birth certificate, but that was only allowed through the proper court practices, and I was privileged to witness the first of those decisions made in South Australia.

I and my staff were allowed to go into what was normally a private court hearing to hear that decision made. Yes, it makes people jump over more hurdles, but in some cases the hurdles are absolutely desirable, and this reliance on regulations is something that really does concern me. While I can appreciate the requirement for some of the new legal provisions that are included in this legislation, I do have some questions, and I would be grateful if the minister would bring back responses, either at the second reading summary or when we go into committee.

Under this bill, could an individual in a same-sex relationship apply to change their sex or gender identity using a sufficient amount of appropriate clinical treatment as the qualifying criteria, therefore having no physical alterations, and successfully have their sex or gender identity changed and then marry their previously same-sex partner under the commonwealth Marriage Act 1961?

Further, under this bill, after their marriage is solemnised, could that individual apply to have their gender changed back after a sufficient amount of appropriate clinical treatment and have their marriage legally continue as per the case I noted known as the Kevin and Jennifer case? Also, could this loophole—intended or otherwise—open up certain medical practitioners and/or psychologists as specified in the bill to become the go-to medical professionals for those wishing to access marriage through what I would describe as unique legislative means? How will a sufficient amount of appropriate clinical treatment as described by the regulations be enforced and/or monitored?

Will a registrar be required to take written advice from a medical practitioner and/or a psychologist at face value, or will more rigorous standards be applied in practice? In what other Australian jurisdictions do provisions such as this operate? Is there any knowledge of any issues that may have been experienced in those jurisdictions? What will be considered a sufficient amount of appropriate clinical treatment for the purposes of counselling under clause 29H(3) of the bill when it is prescribed? As I have some experience in these matters of consultation to do with regulations, as the minister is aware, I ask: who will be consulted when drafting this regulation?

Finally, how does the bill ensure that children and minors, who either themselves or through their parents or legal guardians access this legislation, are psychologically capable of contemplating a decision that will affect the rest of their lives and also ensure that they are not being coerced by other parties? I would be grateful if the minister could bring those answers back at the most appropriate time. Certainly, I have contemplated those issues and I think others I have spoken to in the community who have some sympathy with the people this bill is trying to assist are also concerned about those matters.

I will bring to the chamber shortly my own experience in the last nearly 18 months with the supposed development of regulations by an Attorney who may not agree with the particular legislation that is being developed, which means that sometimes these regulations can completely lapse. That has been my experience and some of those questions are a result of that. With those remarks, I am not inclined to support this bill, but I am keen that we get the best information we can in the development of this legislation, if it is to pass.

Debate adjourned on motion of Hon. J.M. Gazzola.