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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Statutes Amendment (Gender Identity and Equity) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 February 2016.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:40): It is with pleasure that I rise to speak on the Statutes Amendment (Gender Identity and Equity) Bill 2016. I indicate that I will be the lead speaker for the opposition, although that would seem a little unusual, given that I confirm that the opposition does not have a joint party position on this paper, and indeed all members will be, as they are always on our side of the house, encouraged to make a contribution to the debate and vote according to their conscience.

The bill itself was introduced by the Premier on 10 February this year after laying a draft on the table on 1 December last year. Until then, this area of reform was commonly known as the LGBTIQ review/reform, and the government had made a commitment to look at our laws, both legislation and regulation, to ensure that there would be some review by the South Australian Law Reform Institute to consider and identify occasions when an individual or family were discriminated against on the grounds of sexual orientation, gender, gender identity or intersex status.

The South Australian Law Reform Institute has done that and is continuing to undertake further work in respect of this area of reform. The initial report, which was prepared in September last year, was titled 'Discrimination on the grounds of sexual orientation, gender, gender identity and intersex status in South Australian legislation'. The chair of that board, Professor Williams, has met with me and, obviously, the government and the Attorney, in respect of advancing reform pursuant to their recommendations.

The report of September 2015 identified about 40 acts or regulations in which discrimination had been identified, and this bill essentially incorporates the remedying of that. I will come in a moment to a substantial body of work that has been done by the institute and others in respect of other aspects of reform in this same arena.

LGBTIQ stands for 'lesbian, gay, bisexual, transgender, intersex and queer'. They are each descriptors which have been in common or uncommon usage. Some are words that now, like some other words in our language, attract a certain connotation, sometimes in a derogatory way. I always remember the word 'juvenile', which was frequently used as a descriptor, quite an appropriate descriptor, of the age of somebody in pre-adulthood, or in fact other animals in the kingdom, but because of its association with the criminal conduct of young people, it attracted a certain connotation, meaning someone who was juvenile was immediately perceived to be someone who was a bit of a ratbag at a young age. Words can colour or be coloured or stained, even, after common usage.

I understand, both from Professor Williams and from reading the report, that persons who are in these categories have given their blessing to the continued use of these descriptors that comprise the LGBTIQ group of identifications. My initial question when I was looking at this was: is the word 'queer' acceptable to those who wish to be identified as 'queer'? The answer to that question, I am advised, is yes. There are certain people in the community who would by preference wish to be called by that descriptor.

Others want to be more specific and hence will use lesbian, gay, bisexual, transgender or intersex. I am ready to admit that I did not at first understand exactly what someone who described themselves as intersex was, but I have since been given some information on that. I thought I was clear on transgender, but that has been made more clear. There are very helpful definitions and descriptors in the report that I have referred to.

I think it is fair to say that when someone is, in their eyes at least, neither male nor female, nor someone who wishes to be identified as man or woman in terms of gender identity or an equitable situation, they wish to be recognised and they wish to have that recognition in our legislation to the extent that they are not excluded. In essence, this bill proposes amendments to all of the laws that have some binary notion in their context. They describe a male or a female or, in respect of gender, a man or a woman, so we take those out and we have substitutes including 'a person', 'a party' or 'they', rather than he or she etc.

It is not unique; it is not a new approach. We have done this before in legislation and I think we can accommodate and support it. I will be supporting this bill for the very reason that it does not attract a new set of entitlements or obligations. What it does, though, is remove words that have the effect of excluding others—in this case minorities, as they may be, but they are people and they can be considered.

Instead of having 'he or she' or 'male or female', the person who might self identify as intersex or transgender or queer or wanted themselves to be described as bisexual, gay or lesbian—whatever they want themselves to be known as and present themselves to others as—are not excluded. They are not a nothing when it comes to looking at the legislation. I think that is reasonable and the provisions that will prevail as a result of this bill passing will ensure that those who are intersex or transgender will be recognised as a person.

The amendments also remove the interpretive language in legislation that has the potential to discriminate against a person based on their relationship status. Again, this is to ensure that we include those. We have we done this before. We did it back in 1960 when we changed the constitution in the Playford era to ensure that when the constitution referred to 'a person', it was a he or a she. We did that as a result of a Full Court decision of the Supreme Court when a person had challenged the election of Joyce Steele and Dr Jessie Cooper in 1959 as not being 'a person'.

The question was essentially: when is a woman not a person? 'When she wants to stand for parliament,' was the answer. The Full Court said, 'This is a bit too difficult for us. We think the parliament should deal with it.' So, after the election, successful for those two women, the constitution of South Australia was changed to ensure that we had a descriptor which was inclusive. It was to be absolutely abundantly clear, according to Mr Playford and the leader of the opposition at that time who was Don Dunstan, who both committed to ensuring that that legislation would be supported by their respective parties.

We then had a tranche of legislation to recognise those who are not living in a marriage in accordance with the rules of the federal Marriage Act but may be cohabitating as domestic partners, which is sometimes known as a de facto marriage, common law marriage and the like, and we have gone through our legislation, in the time I have been here, to again ensure that persons who may be cohabiting, either heterosexual or homosexual in that sense, can be recognised. We have removed situations where someone might be a partner of a deceased person and would otherwise have no entitlement or opportunity to be involved in the arrangements for the funeral or burial of the person they have loved. We have made sure that we have gone through our legislation to fix that.

In my view, this legislation does the same thing. We clearly now acknowledge and welcome those in the community who identify in a different manner, other than being a male or female. Certainly, they may have been born and identified on the birth certificate as having been identified medically as someone of a male or female gender but, over the age of 18 years, they may self-determine a status and descriptor that they are comfortable with. For whatever reason, that usually is consistent with their sexual orientation or, indeed, their emotional commitment, sometimes, to change into another gender.

I applaud the work of the institute to audit the laws that we have and to recognise the diverse ways in which a person may identify their gender or intersex status. The report also highlights a number of other areas of research which are currently underway, and they relate to consideration of the amendment of the Births, Deaths and Marriages Act to recognise sex and general reassignment laws. We have actually passed legislation in this house, and there is consideration to be given to recognising those subject to reassignment laws in our Births, Deaths and Marriages Act.

There is to be consideration of exemptions under the Equal Opportunity Act and areas of surrogacy which, of course, sometimes come to the fore in our media, usually when there is some tragic circumstance. I think the most recent was a Western Australian couple who provided for the surrogate birth of a child. The mother, living overseas, had two children. One suffered a disability and, at least from the media records, was abandoned, and the mother was left with this child to raise, with the other sibling being brought back to Australia.

When these things hit the headlines, they make us look at how we better deal with these circumstances—in this instance, where a person is asked to carry a child on behalf of others, with or without the donor egg. We need to sort out these issues, obviously, because, whilst paid surrogacy in a number of areas in Australia is illegal, we need to sort of consider this.

Obviously, where women might be in disadvantageous financial circumstances—living overseas and desperate for some financial support—they are vulnerable to being exploited, and we need to ensure that we are not perpetuating a situation which actually supports that. We also, as best we ethically can, need to have guidelines and rules to allow people who are not able to have children to have a child through surrogacy.

The law in relation to provocation is also an important area of reform that needs to be looked at, and there has been a Legislative Review Committee of inquiry. There has been a recent case to the High Court, a case called Lindsay, which at the moment is awaiting retrial in South Australia. It is a South Australian case in respect of the use of provocation as a defence to murder, and that is all still pending.

Then we have this question of what we do in relation to recognition of people who are cohabiting, who are not lawfully married and who have cohabited for less than three years—unless there is a child of the relationship, and where it is a heterosexual relationship that certainly can have occurred. However, at present there are a number of people who are cohabiting and whose status as a domestic partner is not recognised in any way until it crystallises upon the three years of cohabitation.

Certain responsibilities and entitlements flow at that point, but it is not recognised before. So, the question of whether we should have a relationships register is also an area of consideration by the institute. Certainly, Victoria has looked at that, and as I understand it is progressing law reform there which allows for the registration of couples where they would not otherwise be eligible to be recognised at law.

As I understand it, Victoria's proposed model is to make available to Victorian residents, if they were married overseas, for example, an opportunity to go on a register in Victoria, provided that marriage was in certain jurisdictions. In Victoria's case I think it is looking at the United States, the United Kingdom and one or two other jurisdictions.

Can I just say for members who might be at all interested in this area of reform, it will be interesting to have a look at, but at present we do not recognise in Australia an overseas marriage as a lawful union unless it is marriage in a circumstance which is similar to the rules that apply in Australia. So, in essence, if a 14-year-old girl marries a 25-year-old boy in Libya, and it may be lawful in the country of Libya and recognised in that jurisdiction, we would not recognise it because we do not allow people to marry at age 14.

So, it is not just a question of whether it is a man and a woman, and so on: they have got to comply with the fundamentals for us. We do not let brothers and sisters get married, and we do not let children marry between the ages of 16 and 18. Of course, they can have parental consent or a court order, but there are certain age limits, etc. We do not let people have more than one spouse. I do not know who would ever want more than one husband at any one time, frankly, but—

Mr Pederick: There are some countries in the commonwealth.

Ms CHAPMAN: —nevertheless—

Mr Pederick interjecting:

Ms CHAPMAN: That is a novel thought from the member for Hammond. Thank you. Polygamy is not something that we allow under our Marriage Act in Australia, and so if someone comes to Australia with three legitimate wives from their country of origin, then only the first lawful wife—a marriage to the first person—would be recognised as a lawful marriage in Australia, but the other two who may be other co-tenants or resident in the house with him or her we do not give that marital status.

And so one of the things that Victoria has done is to say, 'Well, look, if somebody goes to the United Kingdom and marries, then we will recognise that under a register.' In that instance, it could be a marriage between two parties of the same sex, and that can be recognised.

We will see how that pans out and how it develops, but some more work is being done by the institute on that. I understand we could have something as early as April this year in that area and, similarly, with surrogacy. In respect of the provocation law, of course, we are waiting for the Lindsay case to be retried before anyone is prepared to re-look at this question.

In relation to the laws relating to sexual reassignment and its registration in our births, deaths and marriages act, I understand a paper has now been completed and is available on the institute's website and, similarly, under our Equal Opportunity Act amendments there are further exceptions. An issues paper has been released and is available for people to make a contribution.

Some of these will be a challenge for members as to ultimately what recommendations are brought here to the parliament, and I think it is important that each of us looks carefully at them as to how they better advance and protect those in our community in a respectful manner and, certainly, that is the way I will approach it.

Can I say that in this area, though, the one thing that has very much disappointed me is that, on the same day as laying this on the table on 10 February, the Premier made a ministerial statement outlining the circumstances of Marco Bulmer-Rizzi's, in his words, 'mistreatment' by the state as a basis for highlighting the importance of the reforms that we are now considering. He introduces this bill but, separately, he gives a ministerial statement about this case.

Members might remember reading, over the summer break, about the circumstance in January when Mr Bulmer-Rizzi was visiting Adelaide from the United Kingdom with his husband David. Their marriage was a lawful marriage in the United Kingdom and, as we do not have same-sex marriage in Australia, on his death certificate (on which our births, deaths and marriages law requires that the deceased's marital status is recorded) his marital status was apparently to be recorded as 'never married'. We read in the paper, of course, how offensive, disturbing and distressing that was to Mr Rizzi, because he in every way understood himself to be the lawful husband of this person.

They were very sad circumstances and I do not wish to in any way diminish the importance of us trying to work through how we deal with those circumstances and how we can be respectful of someone in that situation without being offensive. One way may be that the Registrar of Births, Deaths and Marriages would have some discretion in not recording such information if the information was of distress to the partner in that situation. That is one option.

It seemed a situation, frankly, where, on the face of it, the Premier himself, the great white knight, came to the rescue in this case. If you were to read through what was presented by the Premier, he was the great saviour and acted to ensure that the recording on the marriage certificate was not 'never married' but ultimately something along the lines of 'marriage not recognised in this jurisdiction', or 'this state', or something of that nature. I cannot remember the exact words provided to me as to what had occurred, but I think it was probably recorded in a way to try to minimise the offence to the relevant party, and to also comply with the current law. A bit of tiptoeing had to be done around that to work it out.

I would certainly hope that the Premier was not involved in any direction to the Registrar of Births, Deaths and Marriages, because that would be an offence under the act. In any event, I think, on the face of it, we can accept that there was an attempt made by good men and true to make sure that there was some respectful recording completed.

My point is this: he makes this statement on the basis of the reform that he then introduces, and this bill has nothing to do with that. This bill has absolutely nothing to do with that. It may be, at some later date, that we look at reform which deals with addressing the births, deaths and marriages act, but it is not in this bill. I just find it a bit churlish at best for the Premier to come in and try to pretend that, in some way, he is actually making things better for the people who find themselves in the circumstances of the Rizzis.

Let me get back to the bill and what it is really about. In the summary that I have prepared, the areas of concern include allowing a person self-identifying as a man or woman to be nominated for a board. I must say I think that could cause a few little problems, but I have had a look at it and will ask some questions about that in committee.

Essentially, if someone is transgender or intersex and, for example, is identifying themselves as a woman although they had been born as a male, and there had not been a sex change at that point but they are seeking to be recognised as a female, it raises questions of eligibility to government boards and so on. I have questions as to whether they can change, or go back and forth, or take up a spot and those sorts of things. In any event, I think I understand the gist of where we are going, and so I am supportive of the principle of what is trying to be achieved.

Another area is to allow self-identity when searched as a prisoner or for a forensic procedure, and this is quite reasonable. I am just going to refer to a current case in Western Australia, which I suppose is a living, breathing contemporary example of what can happen when we do not have a system that allows for some flexibility in this area and for some accommodation of the recognition of someone's self-identity.

In Western Australia, as we speak, there is a person known legally as Clayton James Palmer, aged 38, who is currently charged with grievous bodily harm; in particular, for having unprotected sex with another person last year. He has been charged and is currently being held at a male prison. The complication comes as this person—legally 'he' at this point—is a sex worker who advertises and presents in the advertising material as Sienna Fox, and provides services. There is an alleged victim of HIV, which is why this person has been charged.

Here is the complication: Mr Palmer, or Ms Fox—let us recognise the fact that this person calls herself Sienna Fox and wants to be known as a female, and for the purpose of this exercise I will refer to her as such—has been in court in the last 24 hours, applied for bail, was rejected, and was sent back to the male prison. Ms Fox asked that she be accommodated in the female prison; however, that has been rejected.

How do we deal with that situation? Is it appropriate that, because somebody self-identifies as being female, lives their life and their working life as a female, and presents to the public as a female, they should be able to say, 'I want access to the female prison'? If that person was no longer genetically male, if I can describe it that way, then is there any harm in allowing her to be in a women's prison? Probably not.

However, if she is still genetically male and is capable of presenting as a male, would it be appropriate that she is allowed in a women's prison? Would that be difficult for other women prisoners, especially if they were in a shared bathing situation, for example? These are the sorts of things we have to really think about.

It is one thing to say, 'Let us give recognition to somebody in accordance with how they, of sound mind and over the age of 18 years, want to be known and identify with,' but we have to consider the complications of living in the real world. We have to address that issue. At least this bill says that, if you self-identify, you are entitled to have access to searches by a person of the same gender or, similarly, forensic procedures by someone of the same gender as your self-identified gender, so that covers that.

The third area relates to abortions, that is, terminations of children in utero. At present, most of you would know that it is illegal to either abort yourself post a certain term or, secondly, to assist in an abortion. In fact, there is a maximum penalty of life imprisonment. The law currently, under our Criminal Law Consolidation Act, covers a person who is biologically a woman, but does not deal with someone who self-identifies as a male.

What do we do with people who are genetically female who of course are capable of carrying a baby, but who self-identify as a man? They are still a person who is capable of having a baby. As unusual as that might sound, that has occurred, where a person has had a desire to present as a male, still had the genetic capacity to actually carry a child, and subsequently gave birth to a child. I am not raising this in any way in terms of dealing with an abortion matter, but I make the point that it can happen. We will therefore amend this law to recognise a person who is biologically a woman but who self-identifies as a man.

It may seem strange when you read the amendment, which changes the word from 'woman' to 'someone who is pregnant'. You might read it and think, 'Well, who else could be pregnant other than a woman? That would be a bit unusual', but that is the circumstance, and it can occur. So that is the explanation. Similarly, we have changed provisions to cover a medical termination of a pregnancy, from 'woman' to 'patient'.

We have gone from language of 'chosen gender' to 'gender identity'. Some of that is obviously to become more contemporary. I do not think the bill is entirely consistent. I think we do need to look at some way of trying to keep some consistency here. At some points in the bill we change the wording from 'woman' to 'patient', 'person' or 'someone who is pregnant', which I think adds a bit more confusion.

I would rather us look at a situation where we as much as possible identify whether we are dealing with the removal of 'man' or 'woman' or 'male' or 'female', that we identify it as a 'person' rather than using words such as 'patient' or someone who is pregnant. It just seems to be absurd. I think we can tidy that up a bit.

If the Attorney has a little look at that he might be able to work on it. I think the member for Reynell has the carriage of this bill, and she might have a look at that at some stage during the debate on this matter. It is only a small point. I am not usually a big grammar Nazi, but I just make that point. We are trying to make this more simple for the average person out there to implement, enforce, etc., so let's try to make their job as easy as possible.

It is fair to say that there has been comprehensive consultation on what is being proposed here. It is consistent what we have been doing, in my lifetime, bringing to contemporary language our laws, and I will support it. I will look as carefully as I can at the proposals as they come one by one from the SA Law Reform Institute. I thank them for their work to date, and I expect there will be continued work.

I wish to acknowledge and thank, for advice on this matter and prompt attention to information sought, Mr David Pearson from the Premier's office and Alison Lloyd-Wright from the Department of Premier and Cabinet. She was ably assisted by Lachlan Cibich in providing advice and also Ms Newman from the member for Reynell's office. I thank them for their advice in progressing this bill.

I look forward to hearing other people's contribution on the debate. I should also thank the government for giving advice to provide a briefing on this matter yesterday, which I understand took place for all members to be available. I support the bill.

Ms HILDYARD (Reynell) (16:17): I rise today to also speak in support of this very important bill. I want to thank the member for Bragg for her very detailed contribution. I very much look forward to further discussion with her and other members about its content.

This is a bill that goes to the heart of achieving equality in our laws and in our state. Our state has a long and proud history of leading the way in removing discrimination and in achieving equality with and for all of its citizens. As we rightly celebrated late last year, we were the first Australian state to decriminalise homosexuality and we were the first place in the world to give women the vote. We are a state with many firsts of this type, with a strong, deep and proven commitment to social justice and to inclusion.

Through the leadership of our Premier and our government's request in early 2015 to the SA Law Reform Institute to inquire into and report on any South Australian laws that discriminate against particular members of our community, the institute handed down initial recommendations.

This bill aims to implement the majority of those recommendations. As our Governor His Excellency Hieu Van Le said in his speech when opening this parliament, it is our government's desire to remove discrimination on the grounds of sexual orientation, gender, gender identity and intersex, and this bill is an enormous step towards this and to our commitment to our community to remove discrimination from all of our laws.

This bill demonstrates our government's deep commitment to ensuring all South Australians are included in every aspect of South Australian life, and this is the first in a series of bills that will ensure that our laws include, and reflect, all members of our community. I hope that as others stand here and speak about these matters today and no doubt in days to come, and that as this bill progresses, that we bring hope to South Australians who have not felt like they belonged, who have felt excluded from particular parts of community life, and who have not had access to the same rights as other citizens.

This Statutes Amendment (Gender Identify and Equity) Bill is an important piece of legislation that will bring surety to many South Australians who have been excluded through particular parts of our laws. It is focused on changing the language around our laws so that it is respectful and not discriminatory towards any South Australian.

This bill encapsulates most of what the South Australian Law Reform Institute has identified as requiring immediate action. The power of language is quite something as has been evidenced throughout this process, with many subtle and not-so subtle ways in which the language in our laws can and has discriminated against community members coming to light.

To ensure that we are encapsulating the views of all South Australians through this work, the Law Reform Institute has consulted widely, and has extensively invited public input on the issues raised through this bill. As I always am, I have been heartened by the work of the many advocates for our LGBTIQ community and many others, and their commitment to speaking up and standing up with and for those who have been excluded, and their work towards equality. I am proud that through our consultation on this bill and the bringing of this bill, we are demonstrating that we are prepared to listen with compassion, and we are prepared to act.

This work has uncovered over 100 pieces of legislation that are discriminatory, potentially discriminatory, or, in fact, archaic. For instance, I understand some of my parliamentary colleagues were intrigued to learn that clause 37 of this bill removes from the Landlord and Tenant Act 1936 the right of a woman to retain their mangle should she be unable to pay her rent on her property. A mangle, I have discovered, is, of course, a mechanical laundry aid which has been obsolete for some time.

Ms Chapman: We know what they are!

Mr Pederick: They aren't in some places yet.

Ms HILDYARD: Indeed. A right for women that presupposes, in 2016, that women would require such an item or something similar, including a typewriter, to continue to find employment, is intriguing indeed and, in fact, somewhat bizarre. In our briefing yesterday, one of my parliamentary colleagues did comment that he would be in significant trouble with his lovely wife if she knew that this outdated clause was still in our legislation, let alone if he allowed it to stay there. In my own house, my very kind—

The Hon. S.W. Key: I've 'wrung' her!

Ms HILDYARD: Okay, very good, she knows now. In my own house, my very kind and ruthlessly efficient husband who organises many, many things in our home, including often our laundry, was also surprised to hear that this clause was still in existence. He was, of course, on discovering it, left with no hope that I would ever intimately get to know my mangle or, indeed, any other domestic appliance any time soon.

Whilst these clauses would have been incredibly important in ensuring that women at one stage of our state's history were not left destitute or without the tools of their trade, they are now something we simply must confine to our history books as relics of the past, not our law books of today. Changes like this are a demonstration of what is at the heart of this bill, respecting that as time passes, the needs of our state and, indeed, of our community members, rightly change.

Many of these changes are extremely small and, in fact, for most South Australians, will not in any way affect the day-to-day operations of their lives. Many South Australians will not even realise that these laws have changed, but for those whom they will affect these changes will have a profound impact. In an overarching sense, this bill's passing will demonstrate that South Australia is an inclusive place for everyone; a place that does not discriminate, but values, respects and includes.

Currently, our laws do not recognise the fluidity and diversity of sex, gender and sexuality. The presumption of heterosexuality in our laws, which is compounded by a federal government still shamefully and embarrassingly refusing to allow marriage equality, has ensured that some people in our state face significant discrimination and deal with a lack of rights including around forced divorce, an inability to pursue action if dismissed from their working place and, sadly, many other consequences.

TheGuardian last week demonstrated the progress of LGBTIQ legislative reform around our nation. It was sad to see that South Australia, once the leader in social reform, is now considered one of the less progressive states. Through this bill, we are working to change that, to make South Australia the welcoming place that we all know that it is and can be. I look forward to the day when we are again seen to be the leaders in this space.

Just as many years ago our parliaments rightly fought to make language inclusive for women, as the member for Bragg has rightly spoken about, now we must seek to make language inclusive for all. Whilst I understand that a few of my parliamentary colleagues may find some of these changes confronting, we can rest assured that our work here today will better the lives of many South Australians. It will certainly not remove or compromise the rights of any South Australians. Indeed, it will be unlikely to be noticed by many who are not directly affected. It is these small subtle changes that will make an enormous difference in the lives of our fellow South Australians in accessing health services and procedures, at work, and in so many other ways.

I look forward to the ongoing work of our parliament in eliminating all discrimination from our laws. In particular, I look forward to being involved in the progression of other South Australian Law Reform Institute bills this year. It is quite confronting to be presented with a list of all the ways that as a state we discriminate against people, and I look forward to being part of removing all the clauses that do so from wherever they may appear.

Discrimination hurts our fellow South Australians, and I look forward to making it disappear. I am proud to stand with our Premier and publicly state that we will not allow any members of our community to feel alienated by our laws. All campaigns with progressive outcomes take time and, as I mentioned, the changes we are making this year are as a result of years, and indeed decades, of activists and community members actively working together to make change. I pay tribute to the work of the LGBTIQ community and supporters, and deeply thank them for their enduring leadership and commitment over so many years.

I also pay tribute to the work of John Williams and his dedicated team. The work that has been done on this report and others is comprehensive, extraordinary and speaks to the depth of passion for removing inequality that so many in our legal sector have. As I also mentioned, the Law Reform Institute consulted broadly, and in calling for public submissions also allowed commentary on the YourSAy website. I thoroughly enjoyed reading these, and I want to share one comment with the house today. Community member Lincoln Shultz said:

Let me put this simply. I am a white forty something male and I believe that no-one should have more or less rights than I enjoy—anything less is discrimination.

It really is as simple as that. All South Australians deserve access to the same rights, and I will certainly continue to fight to progress these issues, and with further collective work we will, and we must, see movement in other areas this year, in particular in marriage equality, amongst others. As activist Sam Killermann said:

If you can do nothing else, do whatever is in your power to make the people in your life feel completely unashamed of who they are.

Through this bill, we can use our power to ensure every South Australian can feel proud of who they are and respected and valued by their fellow South Australians. I look forward to using our power in this way and indeed it is incumbent upon us to do so.

Mr PEDERICK (Hammond) (16:28): I rise to speak to the Statutes Amendment (Gender Identity and Equity) Bill 2016, which is a bill for an act to amend various acts to remove discrimination against lesbian, gay, bisexual, transgender, intersex and queer South Australians. People may not be surprised that I will not be supporting this piece of legislation. I come from a Christian upbringing in a very conservative area in a conservative electorate, and even from hearing just the first couple of presentations today, I am wondering if this is just one step closer to legalising gay marriage by the back door.

Ms Hildyard: You just want the mangle to stay, don't you? Bring back the mangle!

Mr PEDERICK: You've had your go. I appreciate the briefing that the member for Reynell offered to members. I do not know about being happy to go along, but I was interested. Before I went to the briefing, I was probably going to give a fairly short appraisal of this bill, but now that I have been to the briefing, whether I am confused or confronted or both, I do appreciate the opportunity to ask questions and try to get some answers.

The legislation deals with changing 'a woman' to 'a person' in relation to giving birth, which I find confronting, I will be frank, and I will go into that further. Where it deals with gender self-identification, I think a whole gamut of issues will come up in the future. There have already been issues in the past between different genders in the sporting field. My wife was an under-19 state hockey player and there was a woman who played in another team who had to have a doctor's certificate to prove she was a woman. That is fine; that cleared it up, but I think there is going to be a fair bit of confusion when someone who is clearly male turns up and wants to be part of the hockey team or the women's soccer team and says, 'Well, I'm a girl, let's go.'

What sanctions are in place? Hopefully, I can find out when we go into committee, but I think this raises a lot of questions. Olympic committees would have looked at this as have other sporting bodies, but that is just one field where I think there are a lot of questions about how this will really work in the real world. Quite frankly, I do not believe you can just self identify. One thing I was intrigued to learn was about men being able to have babies. If this legislation goes through, the wording in the appropriate bill will change from 'a woman' to 'a person'. I was intrigued, so we did a bit of googling.

Members interjecting:

Mr PEDERICK: Google, google, google. Google's answer to 'Can a man have a baby?' says:

An unidentified man is the first in Europe to give birth to a baby after becoming pregnant through a sperm donor—

but here is the catch—

The unidentified man who was born a woman delivered the baby boy at home with a midwife in the poor Neukoelin district of Berlin.

I want to talk more about men allegedly having babies. An article in The Daily Telegraph states:

Men have given birth to 54 babies in Australia over the past year according to official Medicare statistics which now allow patients to nominate their own gender.

In an echo of the case of Thomas Beatie, a transgender man who preserved his female organs—

note that—

and was billed as the world's first pregnant man in 2007, Aussie men are now also having babies, C-sections and abortions. The surprising statistics have been confirmed by Australia's Health Department.

According to the Medicare data, there were 16 men who gave birth in [New South Wales] last year, 22 men in Perth, seven in Victoria, one in Tasmania and two [right here] in South Australia.

No men gave birth to babies in the Northern Territory—

I am assuming with all the crocodiles up there, they are real men.

The men involved are likely to be people who were born female or with female sex organs who identified as male, or commenced gender reassignment surgery, but retained the physical capacity to give birth.

That is interesting. The article continues:

The men were mostly aged 24-36, with 32 of the babies being born from males in that age group. One man aged 55-64 also had a child. No male births were recorded in the Australian Capital Territory or the Northern Territory—

as I indicated before—

according to the Medicare statistics.

The Australian Department of Health, as I said, confirmed these statistics to News Corp, and the department is aware of cases of persons identifying themselves as male having pregnancy-related treatment which can be claimed under Medicare. 'Previously these items could not be paid to male patients,' a health department spokeswoman told the Herald Sun. In addition to men giving birth, they have also been accessing abortions, although exact figures on this are unclear as they are tallied under the same code as a dilatation and curettage.

Transgender Victoria spokeswoman Sally Goldman told the Daily MailAustralia the statistics do not come as a surprise, and she supported the decision by Medicare to allow people to record their own gender. She comments:

People need to be their true self in relationship to gender identity and gender expression…I'm not really surprised.

As for whether she believes this will be something we see more often in the future, Ms Goldman predicted that we will see the number of transgender males giving birth increase: 'I think it will…people are saying well we've got a right for life, so yes it will increase.' She added that, while she understands that while people's relationships with their body and gender identity run deep and may differ, people have the right to simply be themselves. 'We're not just two groups of three and a half billion each, we are all different people,' Ms Goldman said.

I think we are getting onto very dangerous ground. In a 2012 New York Times op-ed, biologist Greg Hampikian declared that: 'Women are both necessary and sufficient for reproduction, and men are neither,' which is an interesting quote. The provocative title was 'Men, who needs them?' but, in light of a new discovery from Cambridge researchers that sperm and eggs could potentially be created from skin cells, there is no telling what human reproduction will look like by the end of the century or how gender will matter, if at all. I am just quoting this piece:

Forget everything you know about making babies. In the far future, gay male couples could be having biological offspring without a surrogate and women could be having children in old age.

As The Guardian reports, a team of researchers led by Azim Surani at The Gurdon Institute in Cambridge developed primitive forms of artificial sperm and eggs known as primordial germ cells out of skin tissue. These PGCs are genetically matched to the tissue donor, which would hypothetically allow couples suffering from fertility issues to have their own biological offspring instead of resorting to the use of a sperm or egg donor.

One comment about the declaration by Hampikian that men are irrelevant to reproduction is that it may have been decidedly premature. Surani tells The Guardian that women's skin cells can only produce eggs because they typically lack a Y chromosome, but that skin tissue from men, who have both X and Y chromosomes, could hypothetically produce both eggs and sperm, although such an outcome seems unlikely at present.

I just want to talk about something a bit further fetched, if we can keep going down this path. Complete male reproductive independence would also hinge on artificial womb technology—and I became aware of this technology yesterday—also made headlines in 2014. Ectogenesis—the technical term for the artificial womb—has been in development for over a decade, and futurist Zoltan Istvan predicts that it will be available and used widely within 30 years. In an email to The Daily Beast, Istvan added that:

It's very possible that natural birthing will start disappearing over the next 25 to 50 years because of advancing technology.

So far, goat embryos have been carried to term in these artificial wombs, but human embryos have only been grown for 10 days due to current restrictions on human cloning. If it turns out that viable sperm and eggs can be produced from male skin tissue, the existence of artificial wombs could hypothetically allow two men to create both kinds of sex cells from their skin, fertilise the egg with the sperm in vitro and grow the resulting embryo outside of a human womb. No women would have to be involved at any point. So, we have had both sides of the argument, and one argument says that we do not need men and the other is saying that we do not need women. I guess that we might need a person though.

Mr Duluk interjecting:

Mr PEDERICK: Indeed. For the first time in human history reproduction could become a boys' club. Surani cautions that it is far too early to imagine it happening any time soon. He told The Daily Beast:

I should stress that this work is at a very early stage and there is much basic work needed first before even contemplating that possibility.

It is interesting because there has been some work done with mice, and still such an outcome would not be unprecedented in mammals. The Daily Beast article further states:

Male and female mice with two biological fathers have already been produced and the process will not work the same with humans, of course. However, Surani's team may have just taken a very early step toward allowing gay men to reproduce without having to rely on a donor or a surrogate.

I think that we are starting to go down a very slippery slope. If I thought I was confused and confronted at the briefing, I was confused and confronted when I got this information off Google, I can assure you.

An honourable member interjecting:

Mr PEDERICK: No, fair enough. This highlights another issue which has come up recently in regard to the Safe Schools program which is managed at a federal level. It was a federal Labor issue that the Coalition has been looking at, and thankfully yesterday Prime Minister Malcolm Turnbull requested an investigation into a taxpayer-funded program aimed at helping lesbian, gay, bisexual, trans and/or intersex school students. The Safe Schools education program is set to be reviewed following fierce criticism from some Coalition backbenchers.

According to its website, the Safe Schools Coalition offers resources and support to equip staff and students with skills, practical ideas and greater confidence to create a safe and inclusive environment for same-sex attracted, intersex and gender diverse students, staff and families, but some Coalition MPs have been agitating against the program saying that it raises several issues that are inappropriate for teenagers and young children.

Education minister Senator Simon Birmingham has written to state and territory education ministers asking them to confirm that parents are being consulted before schools introduce the scheme. The review of the program's material and its use is expected to be completed by mid March, little more than a year before its funding agreement with the commonwealth expires. In a statement Senator Birmingham said that homophobia 'should be no more tolerated than racism, especially in the school environment'. Then he states:

However, it is essential that all material is age appropriate and that parents have confidence in any resources used in a school to support the right of all students, staff and families to feel safe at school.

Then we come to my good friend Senator Cory Bernardi and his comments in regard to this program. 'The program is indoctrinating children', Bernardi says. Senator Cory Bernardi told the ABC that the program was seeing children 'being bullied and intimidated into complying with a radical program'. He has called on the government to withdraw funding for the program saying:

It's not about gender, it's is not about sexuality. It makes everyone fall into line with a political agenda. Our schools should be places of learning not indoctrination.

As I indicated earlier, the program's federal funding was allocated by the federal Labor government in 2013 when an $8 million investment was announced for the program convenor, Foundation for Young Australians. It also received some state funding, with the Victorian government allocating $1.04 million in its 2015-16 budget. The Safe Schools Coalition Australia's government website described the program as follows:

…the first funded by the Australian government aimed at creating safe and supportive school environments for same-sex attracted, intersex and gender diverse people by reducing homophobic and transphobic bullying and discrimination in schools.

I just want to read a few comments from my good friend Senator Cory Bernardi. I am quoting from an article he has written:

This morning the media asked for my thoughts on a story on the front page of The Australian about a taxpayer-funded 'gay manual' introduced to schools.

The program, written by homosexual activists and supported to the tune of $8m by the federal government, encourages children as young as 11 to become advocates for the homosexual cause.

The course materials make all manner of ridiculous claims. They insist that asking about the gender of a newborn reinforces a 'heteronormative worldview' and promotes homophobia. To utilise the same terminology against these fools; they are clearly being heterophobic!

Further, the producers of this propaganda claim that ten per cent of people are same-sex attracted and a further 4 per cent are transgender. These figures stem from the discredited research of Alfred Kinsey in the 1940s and are not supported by either US or Australian statistics.

In fact, they overstate the truth by many multiples. Like so many other 'causes du jour', the truth matters little to the advocates.

The program also isolates students in front of the entire class if they don't comply with the mantra demanded of the homosexual activists. This is bullying on a grand scale and the fact it is in any way sanctioned through federal funding is a disgrace.

The government has hidden behind the claim it's an optional program but that statement conveniently ignores the fact that the Victorian government has made it mandatory for their schools from 2018.

Perhaps the most alarming aspect of the program is the part where 11-year-old children are asked to imagine themselves as a 16-year-old going out with someone of the same gender that 'they are really into'. What sort of an education system asks that of pre-teen children?

At a time when too many of our schools are failing to maintain teaching standards, when the literacy and numeracy rates of students are falling, when demands for school funds climb ever higher, why would any government even contemplate supporting such a desperate political agenda targeting our schoolchildren?

The homosexual lobby demand tolerance and truth but their actions, including by virtue of this school program, demonstrate the polar opposite.

Not satisfied with pursuing religious figures through the legal system over their support for traditional marriage, activists are now seeking to co-opt innocent children into their agenda of intolerance.

Of course, like every other Australian, homosexual activists are free to pursue their cause among the adult community in whatever manner they like, within the bounds of the law. But they should have the decency to leave our children and our education system out of it.

That is the end of the quote from Senator Bernardi. I am concerned. I happen to have an 11-year old child at school and I have not heard of this happening at his school but, if I do, there will be a couple of phone calls being made fairly quickly, because I do not believe that children aged 11 should be taught about chest binding or hiding your penis. I think it is absolutely outrageous and there is no way it is something the education system should tackle. In regard to a constituent enquiry about the Safe Schools issue, I quote:

Dear Mr Pederick

I am horrified at the content of the Safe Schools Programme: chest binding for girls, unisex toilets, cross-dressing, gay and lesbian sexual techniques etc.

Apparently its intent is to stop bulling but if that was the case all forms would be addressed, not just the harassment of gay/lesbian students. Bullying based on race, appearance and disability is far more prevalent than that of sexual preference.

With deep concern

I have deep concern, too, and I will certainly be voting against this legislation because I think we are on a very, very slippery slide.

The Hon. S.W. KEY (Ashford) (16:48): I rise to support the Statutes Amendment (Gender Identity and Equity) Bill 2016, an act to amend various acts to remove discrimination against lesbian, gay, bisexual, transgender, intersex and queer South Australians. In February last year, as part of his speech at the opening of Parliament, His Excellency the Hon. Hieu Van Le AO said:

My government will invite the South Australian Law Reform Institute to review legislative or regulatory discrimination against individuals and families on the grounds of sexual orientation, gender, gender identity, or intersex status.

Their recommendations will then be considered in the South Australian parliament.

In researching the matter of gender identity and equity, I was overwhelmed by, I must say, the fairly recent information and research that is available. Having left home and lived independently as a teenager, I lived in a share house and got to meet other young people who had been born male but identified as female. I remember my dear father in particular telling me how lovely he thought my friend Rene was, and how he was impressed by her work in the emergency area as a matron nurse at the Royal Adelaide Hospital. He just assumed—and I think quite rightly—that Rene was as she identified and presented as: a woman.

Sadly, it took many years for the change from Rick to Rene. We are talking about very early medical intervention, and then the extensive paperwork journey. One of the interesting points that Rene raised with me later in life was that, as a woman, she was told that she would not have the same access to promotions within the health sector, and also that she should not worry about superannuation, because basically women in the public sector in those days really did not take it up. So, that was an interesting point for Rene to come to terms with, along with other ways in which women are discriminated against just by being women.

My whole time in this place has been dedicated to trying to make sure that South Australia lives up to its reputation as not supporting discrimination, and aiming for an equal community. This, to me, is just another part of that plan, and is certainly part of my agenda. I would just like to compliment the work that is being done. A whole team of people have been working on these changes, and it is particularly heartening to read the reports that have been put together by the institute, under the guidance of Professor John Williams. I thank them for that work.

As I said, I have been researching this area, and I must say I was overwhelmed by a lot of the information, from Scientific American right through to a number of different journals. One that really caught my attention was a report from the Zoe Belle Gender Centre looking at how many people are gender diverse in Victoria. It says:

There is little data on the percentage of people in Victoria whose gender identity does not conform to binary sex and/or gender expectations.

This lack of data is due to factors such as the:

limited amount of available research

difficulties collecting accurate data across a broadly-defined population

barriers such as social stigma and expense that prevent many gender diverse people from accessing services where they might be counted

reluctance to disclose one's gender identity

lack of support and referral services (who might collect such data) available for gender diverse people in Victoria.

One of the reasons I have raised this report in particular is that, as the member for Reynell has told us, there has been extensive consultation with the community in South Australia to try to work out what sort of profile we have and what changes are needed. Again, I compliment the work being done. The article goes on to mention that there are:

Many studies [that cite] a low prevalence of gender diverse people [because they] use data such as the number of people presenting to legal entities to receive a gender recognition certificate or the number of people who present to clinics to receive medical treatments such as hormones or surgery.

Studies citing a higher prevalence either use survey data of the population or estimates calculated from other prevalence data using broader definitions of sex and gender diversity, including people who cross-dress and people who identify as gender diverse and who do not seek medical interventions.

There was some research conducted by Professor Lynn Conway at the University of Michigan in 2002, and the paper was produced—I do not know whether Lynn is a he or a she, so I will just say Professor Conway—with calculations of the prevalence of gender-diverse people. The report continues:

Conway used a broad definition of gender diversity including people who identify as transsexual, transgendered, cross-dressing, and people who might have transgender feelings but who would not seek to transition.

Conway estimated that as many as 1 in 20 men might cross-dress at some point in their lives—

that would be an interesting statistic in this house, for example—

1 in 50 people might have strong feelings about identifying as a gender other than their birth gender, 1 in 150 people might have intense feelings about identifying as a gender other than their birth gender, 1 in 200 might transition without undertaking surgery and 1 in 500 might transition with surgery. Using these estimates:

8.4 per cent of the population could be identified as gender diverse

1.9 million people in Australia could be defined as gender diverse

466,000 people in Victoria could be identified as gender diverse

The article goes on to say:

However, Conway's figures are higher than the often-quoted prevalence of 1-2% by advocacy groups and much higher than the figures presented in sources that use medical transition only as their definition.

The articles goes on with a whole lot of different statistics. For instance:

…the American Psychiatric Association estimated that 1 in 30,000 adults transition from male to female and 1 per 100,000 adults transition from female-to-male…

These statistics are now widely regarded as out of date.

A more recent paper published in 2010 by the Australian Research Centre in Sex, Health & Society at La Trobe University in Melbourne cites a statistic that 1 in 11,900 adults transition from male-to-female and 1 in 30,400 adults transition from female-to-male…

In 2009, the National Health Service (NHS) in the UK funded the Gender Research and Education Society to study the prevalence of people with gender dysphoria in the UK…They found that:

The number of people presenting for treatment of gender dysphoria in 2008 was 20 per 100,000 people, or 10,000 people in the UK, of whom 6,000 underwent medical transition

The true prevalence of people presenting for treatment of gender dysphoria is likely to be around 0.24% of the UK population.

As I said, there is a lot more recent information that is available talking about the need for us to make sure that people in our community are not discriminated against. To me, this particular bill should be the least offensive of a whole agenda of discriminations that we want to deal with in this place where we are actually making sure that we have inclusive language. By using this inclusive language we are trying to make sure that people do feel part of the South Australian community. I commend this bill and congratulate all those who have been involved in bringing it forward today.

Mr KNOLL (Schubert) (16:58): I rise today to make a contribution to this gender identity and equity bill. I want to state two things from the outset. First, I applaud the intent of this bill and the idea that our laws need to be more complete and inclusive so that all South Australians feel that they have ownership in our society. Areas where we can remove discrimination or make sure that our laws encompass all South Australians is a very good thing and a very worthwhile endeavour.

On the other side of the coin, as a committed conservative, I am also the voice against the unintended consequence, and there are some issues that I would like to delve into in this bill. However, having said that, I want to put on the record first and foremost that I am supportive of what this bill intends to do.

People who have to deal with gender identity issues face a difficult path. Hetero-normative views (a term that I have seen a little bit more recently, in the last few weeks) are probably views held by the vast majority of Australians; in fact, up to 97 per cent of people are heterosexual and identify as a man or woman. Some of the statistics that the member for Ashford talked about showed that the numbers of people who have gender identity issues or undertake transgender operations or sexual reassignment operations are small, but it is still important for us to include them in our society. They are valid and worthy members and they need to be recognised, but they do fight a difficult path.

We live in a society that has fundamentally been male-female and, to a certain degree, as that is the overwhelming majority of the population, there is primacy for that understanding, but that is not to say that we cannot encompass gender identity in a more holistic way. In this instance, I do not think the law should make it harder for people who struggle with gender identity issues. Certainly, I can understand that growing up without having a firm understanding of where you think you belong, looking at children and teenagers around you and their confidence in understanding who they are, having insecurities or a lack of firm understanding of where you fit in the scheme of society can be difficult.

We need to do what we can in order to make sure that we are an inclusive society. It is a fundamental tenet of the Liberal Party that we believe in freedom and the rights of the individual. I believe that this bill is about ensuring the rights of each individual rather than, say, 99 per cent of individuals. On that score, I applaud it, and if we can do anything to help people who are struggling with difficult issues around coming to a conclusion on who they are, how they express themselves and how they fit within our diverse society, then I think we as lawmakers should be doing that.

We have been through the clauses in a briefing that the member for Reynell put on yesterday. A lot of what we are seeking to change is fundamental and straightforward, and a large part of this bill is quite straightforward. By its very nature it is law, and it is fundamental and it is not specific. I think that what will happen as a result of this bill, if it is enacted, is that it will spark a whole series of questions in a whole series of areas; and I would like to go through some of the issues.

The changes sought in this legislation do not necessarily provide for these but, having said that, the changes that we are looking to make I think will lead to conversations that organisations within our community are going to have. The first of those is sporting organisations, and the member for Hammond talked about that. Sporting organisations will need to make sure that they sit down, have a chat and deal with the issues around self-identified sex and create policies for how they are going to deal with them as they arise. We certainly want to make sure that we are inclusive, but we do not want to increase areas where there can be litigation against sporting organisations because of the complexities that we are seeking to introduce.

Sporting organisations of all colour and stripe will have to start to deal with how we involve gender diverse and intersex people within single sex sporting environments. I assume that these things are happening now, that we have gender diverse people involved in either male-only or female-only sport. As we give rise to these issues, as we give this parliament's megaphone to these issues, I think that they are going to become more prevalent, and we need to have a greater understanding of how we deal with these things.

I know that yesterday we had some discussions around the policies that police and corrections officers have, but I think that is a very live issue. For me, probably one of the fundamental questions with this legislation is: how are we going to deal with a situation where a gender diverse or intersex person says, 'I only want to be searched by someone of my own gender', and police and corrections do not have the ability to provide somebody of that same gender to be able to accommodate that. I think that is a fundamental issue that we are going to have to deal with.

Is it a case where we are going to ensure that we employ intersex or gender diverse corrections officers and police officers to deal with these situations? What is the practicality of that? What is the practicality of that in rural areas, especially where numbers of these sorts of staff are lower, meaning that we do not necessarily have the critical mass when we are dealing with a smaller section of the population?

One issue we talked about yesterday was around the provision of toilet facilities and around whether or not we now need to have a discussion about having not just male and female and disabled toilets, but whether we need to provide for intersex or gender-diverse toilets. Is that something that we are going to see happen down the track? It is not something that is necessarily insurmountable at all: it is just a conversation that our community increasingly is going to have to need to have.

As I said from the outset, as a committed conservative, I am the keeper of the unintended consequence, and yesterday it was remarked upon that my imagination sparked a few scenarios that I suppose were a little bit out of the box, and I would like to come through to those. In doing so, I just wanted to deal with clause 9 and changes to specific references to a woman, or the pregnancy of a woman. It updates the language to essentially say that it is no longer a woman who is going to be pregnant but that 'someone who is pregnant' is the terminology that is going to be used.

I have long, tongue in cheek, suggested that I feel discriminated against as a man because I have been unable to understand the joys and the pains of childbirth, and of being pregnant. Indeed, my wife is pregnant at the moment, about 6½ months, and she is getting to the harder end of pregnancy where you are carrying around this thing that ruins your centre of gravity and does not allow you to sleep properly, and kicks at all stages of the day and night.

It is also at the stage of the pregnancy where, if I am sitting on the couch next to Amy watching television, she will smile to herself because she can feel the baby moving inside of her, kicking around, and there is a bond she has with that child. We will get to see him or her very soon, but there is a bond that they have that I feel a little bit jealous of, because I will never understand that connection.

I suppose the other side of the coin is that when I make these sorts of remarks, my wife pipes back: 'Men are too weak to have children; you guys wouldn't be able to survive the pain.' I often say, 'Well, if I could get pregnant and I could gestate a foetus and give birth, then I would be happy to do that'—knowing full well that I am never going to have to do that. But as I found out yesterday it may be in the future that my bluff is called, because there is an ability for an artificial womb to be inserted into me.

So, that is going to be a bit of a difficult conversation when I get home. I am not sure whether we are going to go beyond two children, but that is a discussion I now have to have with my wife. As the member for Hammond pointed out, we are grappling with some of these issues that were abstract or futuristic, and we are now actually having to have a discussion around them.

The spirit of these changes is positive, and they are designed to empower those who do not identify as male or female based on their birth certificate, but I would hate to see these laws and these changes used by people to circumvent the law, and I want to give a few scenarios. The first scenario is this: we have a man and he is perverted. He is a perverted man, and he decides that he will identify as a woman for the purposes of being able to enter female toilets or female change rooms saying that he now has the ability to self-identify his gender, and he is going to use that to give himself access to places he otherwise would not have. I think that that is an unintended consequence that I would hate to see legalised as an outcome of this bill. It is something that I think that we need to grapple with as lawmakers.

I know we discussed this yesterday, but I would hate to see a scenario in which potential criminals use this. An example I would use is if a young man who has quantities of illicit drugs on his person is being pursued by police. The police catch up to him and they have reasonable grounds to search him, but he turns around and says, 'Well actually no, I am identifying myself as an intersex person and I refuse to be searched by anyone who is not of the same gender identity as me,' and does that in order to evade detection.

Assuming the police have policies to be able to deal with that, I think that is an issue that can be overcome, but having said that, it does create difficulties for our police force. I know we are grappling at the moment with whether or not people can refuse blood tests or mouth swabs, or blood alcohol or drug tests. I would hate to see a situation where, for instance, somebody stalling for time to help them sober up or get over the few joints of marijuana they smoked last night, uses self identifying as a separate gender—as intersex or gender diverse—as a way to evade detection. Again, I would hate to see these positive and good-spirited changes being used as a way to obfuscate the law. I think that that is something that we need to look at.

This gets to the crux of the issue that I have, and it is one that I would seek to improve as part of this bill. This bill does not seek to change the way that people declare their gender, and I think that that is a flaw. I think that there should be a way for us to be able to protect the good that is in this bill and the good that is seeking to be done, and empower people to be able to choose their own identity, whilst at the same time safeguarding against those who would seek to use these changes for their otherwise nefarious purposes.

I think that does come down to how we declare gender. I think that if we are going to allow people the ability to self identify—and I think that that is a good thing—we should ensure that the process for doing so is rigorous. For instance, accepting people's gender based on what is on their birth certificate, and them having the ability to state whatever gender they want on their birth certificate, might not be a bad way to be able to deal with this issue, so that you cannot just, when it suits your purpose, decide on a different gender.

If you are going to make that decision, and you have come to a decision, whether male, female, intersex or gender diverse—or indeed not have a sex at all recorded on your birth certificate, which may or may not be something that we can do now—we should use that process in order to protect those whom we are seeking to empower and who take that very deliberate and serious step, whilst stopping those who would seek to use this bill for other purposes from doing so.

I am just flagging now that that is an issue that I am going to raise and that I am hopefully going to help improve this bill during committee through that; I still have some work to do. It seems to me at this moment that it is the desire of this parliament to deal with this bill quite quickly, that we indeed do that. I think that there is a whole heap of consequences that we are not able to fully understand now. I know that we are not going to be able to understand all of them, but we should do our very best to understand most of them.

The question I asked yesterday, and again the member for Hammond talked about it, was whether or not there is an ability if two men who want to get married—which is obviously not legal in Australia—for one of them to identify as a woman for the purposes of seeking to be married, and then post marriage seek to identify as a man, as a way to be able to circumvent the current law. Perhaps that is an issue that is made easier because of the passage of this bill.

I think there is good intent and good spirit here that we need to encapsulate, but we need to ensure that we know what we are doing and that we are doing this with our eyes wide open. What I would hate to see is this bill passed and enacted and the unintended consequences that we do not think of allow situations that undermine the support for this piece of legislation in the community.

I would hate to see instances where this legislation is used for nefarious purposes, with the result that the public says, 'Well, hang on, our parliamentarians couldn't think of this? Our parliamentarians couldn't understand that this is what they were going to do?' and support for these changes is diminished. That is not what I want to see and therefore I want to make sure that we get this right here and now, to make sure that our community moves forward in such a way that the majority can support what we are seeking to do and we ensure that those who need to be empowered are and those who do not will not be.

The Hon. P. CAICA (Colton) (17:16): I rise today to support the Statutes Amendment (Gender Identity and Equity) Bill. To me, to a very great extent, it has been a long time coming and I am very pleased that it is now here. You would also be pleased to know, Deputy Speaker, that I will not use my full 20 minutes. When the Premier introduced the bill, he spoke about our celebrated history here in South Australia. It has been a pleasure of mine to sit here for over 14 years and look at the tapestry of our suffragettes over the other side of the chamber, which recognises the role those women played in making sure that South Australia was among the first jurisdictions in the world to give women the right to vote.

In introducing the bill, the Premier also said—and I am old enough to remember this—that we are celebrating 40 years since the removal of discrimination against homosexuality and I am very pleased that that is the case. I am also old enough to remember the homophobia that existed at and around that time and the tragic circumstance of the death of George Duncan. If I borrow from my short contribution on the presumptive parenting bill, my conscience tells me that to do anything other than to support this bill is the wrong thing, and not the right thing, to do.

We have within our community a number of people who identify in different ways with respect to their sexuality and we have a responsibility as legislators to make sure that the statutes currently in place which do not recognise these people—and which, in fact, by not recognising them, discriminate against them—are properly addressed by this parliament, so I will obviously be supporting this bill.

I do not want to reflect poorly on any of the previous speakers and I will not do that. I respect their right to hold their views, even though I disagree strongly with some of the views that have been expressed. It seems to me, in referring to the member for Hammond's contribution, I would add that, in my view, he has followed in the footsteps of previous members for Hammond who have made very colourful contributions to this parliament.

Mr Pederick interjecting:

The Hon. P. CAICA: Well, you did channel Cory Bernardi, so you might as well channel the Hon. Peter Lewis. I make no apologies for that and I am not having a crack at you, but—

The DEPUTY SPEAKER: This may be where you need my protection, member for Hammond. I am throwing myself between him and you.

The Hon. P. CAICA: Anyway, I found it a very interesting contribution, but the point that I wish to make is that the member for Hammond talked about a slippery slope. The slippery slope in these existing circumstances is a slippery slope for South Australia if we do not recognise the diversity that exists within our community and the responsibility of this parliament to ensure that those people are recognised under statute and afforded not only the recognition but the protection from discrimination that that recognition provides. That needs to be done, and I am confident this parliament will vote that way. The other point I would make is it is probably too strong to say I have a lot of time for some of my colleagues on the other side of the chamber—

The Hon. T.R. Kenyon: You have some time.

The Hon. P. CAICA: —but I have some time for colleagues on the other side of the chamber. They refer to themselves as Liberals. I think every one of you over there identifies yourself as liberal. It is fine for you to be liberal when it comes to certain aspects of people having the right to choose what they do with respect to the economy, or what they want to do in regard to a whole host of other issues, but when it comes to people identifying who they are and what they want to be identified as, when it comes to people being able to be treated equally under the law, you want to interfere with that. You want to continue to prevent people from being able to be recognised—

Mr KNOLL: Point of order, Ms Deputy Speaker: did the member for Colton address his remarks through you?

The DEPUTY SPEAKER: He is addressing his remarks to me because he is looking at me while he is talking.

The Hon. P. CAICA: Looking straight at you.

Mr KNOLL: He is saying that you—

The DEPUTY SPEAKER: I understand him better; sit down.

The Hon. P. CAICA: If you are shocked and offended by the fact that there are certain circumstances when you prefer to be—

The DEPUTY SPEAKER: Member for Colton; looking at me.

The Hon. P. CAICA: Sorry, Deputy Speaker. When members of the opposition wish to identify as Liberals but, on other occasions, when they—

Mr Pederick: It's a conscience vote.

The Hon. P. CAICA: Yes.

The DEPUTY SPEAKER: Order!

The Hon. P. CAICA: I am talking about, Deputy Speaker, what appears to be a breach of the Liberal ethos. Notwithstanding all that—

Mr Knoll: Why don't you just debate the issue instead of attacking everybody else who disagrees with you?

The DEPUTY SPEAKER: Order, member for Schubert!

Mr Knoll: Why is that always a feature of the left?

The DEPUTY SPEAKER: Order!

The Hon. P. CAICA: The member for Schubert should go onto the computer and do what you do well.

The DEPUTY SPEAKER: 131, and you are not to respond to interjections.

The Hon. P. CAICA: No, I won't. They are both as bad as each other, interjecting and responding to them, Deputy Speaker. I am looking you straight in the eye. I just think that we have a collective responsibility to address the things that need to be addressed in regard to the recognition of diversity within our community and to make sure that that recognition equates to equality for those people—it is as simple as that.

I am really pleased that this bill is before us. I, too, like the previous speakers, want to congratulate John Williams and his team on the work that they have done. John Williams is an outstanding South Australian, and he has surrounded himself, by all appearances with respect to the advice that has been received here, with equally outstanding South Australians who have done some very good work in providing advice and recommendations to this parliament. I put on the record my congratulations for the work that they have done. As I said, I am not going to hold up the chamber for very long. My view on these things is to get the vote over and done with. Let's fix it.

An honourable member: Bring it on.

The Hon. P. CAICA: Bring it on, just do it, and let's get it on. I will finish off with this point: the member for Hammond, in his contribution, again talked about Safe Schools. It appears that the member for Hammond may be a victim of some of the misinformation that has been passed around about what the purpose of that program is.

I am very pleased and proud to say that I support a true Liberal, Simon Birmingham, who has been in the media and made his statements about the importance of this particular program, the reason it should be delivered and how it should be appropriate to age in respect to its delivery. We all agree with that, and I think he is being a very good minister in this regard.

I am very disappointed that the Prime Minister has, it seems, succumbed to some of the more radical views that exist within the conservative wing of his party in requesting a review of that particular program. I think that is a mistake. I am hoping that it is just to satisfy for a short period of time those people who have requested that review, and that this program will continue to be implemented and continue to be conducted in our schools here in South Australia and beyond.

In conclusion, I certainly support this bill. I urge the house to support it. I want to see a speedy conclusion, if you like, to the debate so that we can get on with this vote and, in turn, in future months, address those other areas with respect to the recommendations that have been made by John Williams in his review committee and get on with that work as well.

The Hon. T.R. KENYON (Newland) (17:25): I will try not to delay the house unduly, maybe just for five more minutes but not too long. Just to go through a few of the thoughts that I have on this bill, and to indicate a couple of areas where I will certainly be asking questions and possibly seeking to make some changes to the bill. Firstly, let me say at the outset—and it probably goes to some of the questions raised by the member for Hammond around the Safe Schools program—that people should not have to suffer because of who they perceive themselves to be, because of the way they view themselves and the way they feel about themselves, and given that I can understand the intent of something like the Safe Schools Coalition and those sorts of things.

No-one wants to see, for instance, a return to the attitude of, 'Yeah, let's go and bash some poofters', or whatever else. No-one should be bullied, no-one should be physically harmed, no-one should be threatened, no-one should be intimidated and no-one should be damaged whether that is physically or mentally because of who they are, because sometimes life can be difficult enough without having to suffer that pressure from the outside.

I can therefore understand the intent of that Safe Schools Coalition, but there are some genuine concerns about that and I accept that, and people have concerns about the way in which their children are educated about matters, and that is entirely relevant. That has to be respected because when you hand over your children to the school every day for how ever many days it is a year—too few, Minister for Education; if you can extend that out so that the children are there pretty much, I don't know, 345 days of the year, that would be good for me—you cease to be the biggest influence in their life at that point.

When they are five years old and they walk into school, as a parent you become decidedly less relevant to the way in which they see the world. That is not unusual because they are suddenly encountering a whole lot of people and that is a difficult transition for some people, especially for those of us who have more conservative beliefs or religious beliefs.

Especially if your children are going to a state school, for instance, you are handing them over to an organisation that does not share those beliefs and it makes no pretention that it does. It certainly does not. You are inherently cautious about what is being told to them. So, I can understand that there are some concerns about that program. No doubt that will be brought out publicly over the next few months with a review and everything else that is going on, but, having said that, I agree that people should not feel intimidated. It is not right for kids to grow up feeling that it is okay to intimidate people or to put them down for the way they are. In so far as it is an attempt to do that then that is a reasonable thing. More specifically on the bill, there are a few things, having quickly flicked through it. Even for someone as conservative as me, it does not appear to be an entirely unreasonable bill, but—

Mr Picton interjecting:

The Hon. T.R. KENYON: I know, I am getting mellow in my old age, it's terrible. I do have some concerns with it. While most of the bill is entirely reasonable in many ways, there is one clause that seems to me to descend into high farce, and that is the clause around the pregnancy. I am reminded of one of my favourite movies. I must admit that one of my favourite movies is Monty Python's Life of Brian and seeing the Popular Front for the Liberation of Palestine deliberating about Loretta's right to have a baby.

The Hon. S.W. Key: Judean People's Front.

The Hon. T.R. KENYON: Judean People's Front. Sorry: I forgot they were splitters. That's right.

The Hon. S.E. Close interjecting:

The Hon. T.R. KENYON: Splitters over there: that's right. I did not mean to inspire the house to degenerate into a series of Monty Python quotes but it is certainly my view that the idea that it is a female, a woman, who gives birth to children is so intertwined with the definition of what it is to be female that it is just too much for my brain to comprehend. I apologise to those people who are very comfortable with it. I am not, and I will be giving some thought to that particular clause.

The second point is more practical. As the member for Schubert pointed out in his speech, there will be, no doubt, some practical implications of what we are doing in changing the law. This has been reviewed by a group of eminent people such as the Law Society and jurists, and whoever else, and no doubt has been thought through very thoroughly, but I will give an example.

If I owned a gym, in the ordinary course of events I would have a female change room and a male change room and I would have, as the owner of that gym, a duty of care to my customers to make sure that they are safe and protected. Let us say, just for the sake of the argument, that some of the blokes from the footy club, having seen the act (as it will become), decided it would be a great laugh to go down to the gym and say, 'I am intersex and I insist on going into the female toilets,' the intent of which was only to be in the female toilets to look at women naked and all of that sort of thing, which would be pretty reprehensible behaviour, in my view.

If you have people exploiting the definitions contained in this act to those ends, there needs to be some protection. I will be thinking over the next week or so about how we might introduce some protections, particularly for women but for everybody, against exploitation of these definitions which do precisely what the definitions are designed to prevent—the intimidation, the harming or the belittling of people. I will be giving some thought to that and how we might strengthen the act to prevent those sorts of things.

The Hon. S.W. Key: Another amendment.

The Hon. T.R. KENYON: Yes, another amendment, as the member for Ashford has uttered up the back there. It is not unusual that I would get something wrong but it may be that my grasp of the legislation is not sufficient enough and it is not needed, but I will certainly be considering that over the course of the next week before we come to the committee stage of the bill.

I am fighting myself here because I am not sure whether I will be supporting it or not at this point; but I, certainly, like the member for Schubert, acknowledge its good intentions. Many times we have seen in this parliament people have diametrically opposed views on a number of issues—economic, social or whatever it is—and, in my experience, people come into this place with good intentions—in fact, only the best of intentions. I am sure that is the case with this bill, and I acknowledge that it is. In fact, it is the same for me: any opposition or amendments I may have to it are with the best of intentions as well. That is where I am coming from. I will await the judgement of the house and look forward to the committee stage.

Debate adjourned on motion of Mr Picton.


At 17:35 the house adjourned until Thursday 25 February 2016 at 10:30.


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