Sexual Reassignment Repeal Bill

Second Reading

Adjourned debate on second reading.

(Continued from 15 October 2014.)

The Hon. A.L. McLACHLAN (22:46): This bill seeks to repeal the Sexual Reassignment Act 1988 which specifies various criteria in order for persons to undergo gender reassignment procedure and obtain a recognition certificate. For a gender reassignment procedure, such criteria include obtaining approval from the minister prior to undergoing the procedure, receiving adequate counselling, undergoing procedures at hospitals and by medical practitioners approved by the minister, and ensuring that hospitals retain specific records in relation to reassignment procedures and associated treatments.

For obtaining a recognition certificate, such criteria include a belief that his or her true sex is the sex to which the person has been reassigned, the person has adopted the lifestyle and sexual characteristics of the reassigned sex and the person has received proper counselling in relation to his or her sexual identity.

The Hon. Tammy Franks has indicated that she has introduced this bill because the current and extant legislation has never been reviewed and, in her opinion, has never worked. She has also indicated that community standards, scientific understanding and community attitudes have changed since the act was passed in 1988.

In her second reading speech, the Hon. Tammy Franks pointed out various aspects of the current act which are, in her view, flawed. For example, the health minister must approve associated health care professionals, but the minister has no jurisdiction interstate or overseas; the transgender community and health professionals have complained that the current legislation hinders effective quality health care; and the current legislation is potentially inconsistent with certain United Nations covenants.

It is reported that transgender people have significantly higher rates of suicide than other groups of Australians. Health professionals submit that transgender people experience great stress as a consequence of prejudice and, after transitioning, they present a significant decrease in medical health issues. I understand that a motion will be moved in this chamber this evening that will refer the legislation to the Legislative Review Committee.

As a member of the Legislative Review Committee, I welcome the referral of this important matter and also the opportunity to examine the issues raised by the Hon. Tammy Franks in respect of this legislation. I indicate, on behalf of the Liberal opposition, that we will be supporting the motion for the referral to the Legislative Review Committee.

The Hon. K.L. VINCENT (22:49): I take the floor to indicate my support for this bill and, in doing so, I indicate that I will move that the bill be referred to the Legislative Review Committee. I thank the Hon. Ms Tammy Franks for arranging a briefing on the bill, at which it was decided that referring the bill to the committee was the best way to commence a discussion in the parliament around the issues presented in the bill and work towards establishing a better model.

I would particularly like to thank those members of the transgender and transsexual community who gave their time and knowledge at that briefing, namely: Dr Rosemary Jones, Ms Gabreiella Wissell, Mr Marcus Patterson from the Men's Australian Network, and Ms Zoey Campbell from the SA Northern Areas Gender Support Group.

I also acknowledge that quite a wide range of members were present at that briefing: of course, the Hon. Ms Franks and myself, the Hon. Stephen Wade from the Liberal opposition, the Hon. Michelle Lensink, and the Hon. Mr McLachlan was represented by a member of staff. The Hon. John Darley was also there, I believe, and so was the Hon. Gerry Kandelaars. This illustrates to me that there is significant interest in the issues and goodwill to work towards finding a solution.

I think it is important to acknowledge at this point that at the time the original act was passed in 1988, it was a progressive and modern piece of legislation. It seems that many of the matters now arising from that act seem to be largely unintended consequences. As our understanding of gender identity has evolved, the act has simply failed to keep pace. Regardless of an individual member's views on gender identity politics, I believe it is incumbent on all of us to at least recognise that when people directly affected by legislation tell us that there is a problem, there probably is a problem.

Try saying that 10 times faster: there probably is a problem. Particularly when it comes to ensuring the rights and welfare of people with distinct identities, if I may call it that for simplicity's sake, the best way to do this is to work with people with the lived experience of that identity, whether it is Aboriginality, sexuality, disability or, indeed, gender identity. The old adage, nothing about us without us, certainly rings true.

I would like to touch on some of the issues with the current Sexual Reassignment Act 1988. Rather than using my own words, I would like to place on the record two pieces of short correspondence which were circulated at the briefing by the Hon. Ms Franks, particularly for the benefit of those members who were not present at the briefing. The first letter is from Dr Rosemary A. Jones. The points she raises are as follows, first:

The title of this Act is inappropriate and wrong. There can be no question of interfering with an individual's sex that remains an inviolate choice for the individual. Reassignment is an unacceptably paternalistic expression when what is intended is that of confirmation or affirmation of gender.

The second point is:

While it may have been an appropriate piece of legislation in its time when there was a minimal understanding of gender dysphoria restricted to the safe hands of a tiny band of skilled doctors, there is now a wider understanding and empathy for the business of gender transition. The legislation is restrictive and obstructive to the good practice of medicine.

Thirdly:

Perhaps the worst aspect of this act is the 'designated hospital' provision. That has effectively given an excuse for surgical facilities not to open their doors for the provision of surgical transition. Even the Public Hospitals are without a facility that leads on to considering Medicare and its mandate that there should be universal provision of services. Gender dysphoria is a recognised 'condition' that is treatable, being listed in so many ways in different schedules and as such should be available in Public Hospitals. Medicare is not completely fulfilling its mandate and as such could be perceived to be functioning illegally; while that is a Federal matter, the provision of Public Hospitals[facilities] remains a State responsibility.

Dr Jones also goes on to say:

There is a 'one line' restriction in the Act that is an unacceptable provision. This is…the clause that…reads 'A recognition certificate cannot be issued to a person who is married.' This is contrary to human rights that an individual may not marry whom he/she…[pleases] and that if already married, may presumably be required to become divorced. In the latter case it implies that the right to same sex marriage is denied.

The next point reads:

The question of who is qualified to undertake the work is not properly the province of the Minister but rather that of the Specialist Colleges. That needs separate resolution rather than the Attorney General being said to have muttered something about 'taking action against an individual doctor if there was an error made'. As it currently stands, the Act is obstructive to the aspirations of a Medical Practitioner to take up working in the area of gender dysphoria.

I think that I will leave quoting that particular letter there and perhaps make one or two points made in the second piece of correspondence from Zoey Campbell. It states:

3. The administrative processes specified, including the requirement for a recognition certificate to be issued by a Magistrate. (SR Act, Part 3), impose undue red tape.

4. The evidence required for a recognition certificate to be issued is discriminatory, in particular, the prohibition on a married person being issued a certificate under section 7(10)…

I think that most of the other points are touched on by Dr Jones in her letter, so I will leave that there. Needless to say, it is clear that there are many issues surrounding this bill and that this bill no longer works in the best interests of the people to whom it relates. There is an appetite for change, which is very pleasing, and there are several models which have been put forward to us in that correspondence which this parliament might consider. Therefore, I think that the Legislative Review Committee is a good avenue for the parliament to consider these issues. All that being said, I now move:

Leave out all words after 'That' and insert 'the bill be withdrawn and referred to the Legislative Review Committee.'

The Hon. T.A. FRANKS (22:58): I thank those members who have made a contribution this evening in beginning a discussion on repealing the Sexual Reassignment Act. I also thank those members who attended the recent briefing. In particular, I note that the Hon. Gerry Kandelaars and I have had several discussions about this bill not only at that briefing but also over the past month or so and that, indeed, the Hon. Stephen Wade and I have long talked about this. I held a forum in this place some years ago that Peter Luca, the chief of staff for the Minister for Health Jack Snelling, attended, and he has shown a keen interest as well.

I would hope that this process will be one in which we can explore the issues and the barriers that are currently presented by the failings of the Sexual Reassignment Act. Certainly, just the name of it is a relic of the past and is a slight to the very people that the bill purports to serve. Starting with the title and working on through I am sure we will soon discussing and debating many recommendations and revelations that this multiparty and bipartisan approach will lead to with the referral of my bill to the Legislative Review Committee.

The PRESIDENT: I am going to put the amendment first. If you want to support Kelly Vincent's amendment vote no. I put that the words proposed to be struck out stand part of the question.

Motion negatived.

The PRESIDENT: I now put that the words proposed to be inserted be so inserted.

Amendment carried.

The Hon. K.L. VINCENT (23:00): I move:

That this order of the day be discharged.

Motion carried; bill withdrawn.