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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-07-05 Daily Xml
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Statutes Amendment (Gender Identity and Equity) Bill

Committee Stage

In committee.

Clause 1.

The Hon. I.K. HUNTER: I indicate at the outset that my intention is to put on the record some answers to questions that were asked of me during the debate and then not to proceed any further today. However, I am in the hands of the committee; if there are further questions that people want to put to me, that is reasonable as well.

The Hon. Stephen Wade asked a number of questions, and I will go through those separately. One of the questions was regarding the Criminal Law Consolidation Act. I can advise that, when referring to a pregnant person, the South Australian Law Reform Institute recommended amending all clauses relating to pregnancy by removing binary references to gender.

The bill was amended in the other place to remove the clauses that dealt with references to pregnancy and pregnant women. Had those acts been amended as proposed, it would have been clear that all circumstances of pregnancy were covered. Removing these amendments makes the application of the current legislation to pregnant men less clear. It would be a matter for the prosecuting authority in this case and the courts to determine how the legislation is applied in those circumstances.

In response to the question regarding crown advice, I can confirm that advice was sought from the Crown Solicitor's Office regarding the statutes amendment and the fact that it did not identify concerns with the proposed amendment to the Criminal Law Consolidation Act. However, as with all such advice, the contents are bound by legal professional privilege and therefore confidential.

In response to the question regarding the term 'gender diversity', I can advise that this bill seeks to amend legislation to remove binary references to gender that are no longer contemporary or appropriate. Previously, the term 'chosen gender' was used to achieve this effect but this term is no longer considered appropriate, I am advised.

In its audit report, the South Australian Law Reform Institute cited the Equal Opportunity Commission which considered the term 'chosen gender' to be problematic, firstly, because it is not consistent with comparable state and federal legislation and, secondly, the use of the word 'choice' is problematic because gender identity is not considered by medical professionals, or indeed by transgender people, to be a choice.

The commonwealth Sex Discrimination Act uses the contemporary term 'gender identity'. Gender identity is defined in the Sex Discrimination Act as the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person whether by way of medical intervention or not, with or without regard to the person's designated sex at birth.

One of the core aims of the South Australian Law Reform Institute is to ensure that wherever possible uniformity is achieved between the laws of other states and the commonwealth. The South Australian Law Reform Institute's report therefore recommended that the term 'chosen gender' be replaced with the term 'gender identity' in accordance with the definition in the Sex Discrimination Act. This is the definition also used in this bill.

In response to questions put on the record by the Hon. Mr Lucas, I can advise that there were three key sources of references used. The Hon. Mr Lucas asked a number of questions in relation to the Statutes Amendment (Gender Identity and Equity) Bill that I will try to respond to. In response to the questions regarding definitions, there are three key sources of references that we used:

1. The South Australian strategy for the Inclusion of Lesbian, Gay, Bisexual, Transgender, Intersex and Queer People 2014-16, accessible on the Department for Communities and Social Inclusion website.

2. The Australian Human Rights Commission, Resilient Individuals: Sexual Orientation, Gender Identity and Intersex Rights 2015.

3. The South Australian Law Reform Institute's Audit Report, Discrimination on the Grounds of Sexual Orientation, Gender, Gender Identity and Intersex Status 2015.

The South Australian Law Reform Institute's definitions draw on both points 1 and 2 from above, I am advised. I also asked that members and their staff were invited to attend a number of briefings on this bill, including briefings covering the various definitions where copies of the definitions were also distributed in hard copy. If any honourable member would seek to have those definitions resupplied to them, please let me know.

In response to a question of the Hon. Mr Lucas regarding intersex, I can advise that this is a term used for people born with atypical physical sex characteristics. I am also advised that there are many different intersex traits or variations. In Australia there is a small number of people who have undertaken a process to be legally recognised as neither male nor female. Unfortunately, there are still many in our community who identify similarly but for various reasons, including legal difficulties or inconsistency across jurisdictions, are not able to be legally recognised as such, and this state is no exception in that case.

In 2012, the Department for Communities and Social Inclusion conducted the South Australian Rainbow Survey as part of developing the government's LGBTIQ inclusion strategy. At that time I am advised that two survey participants identified as being intersex. Last year, the Department for Communities and Social Inclusion undertook a further survey, and while the results are not yet published I am advised that three survey participants identified as being intersex.

The South Australian Law Reform Institute and the Legislative Review Committee of this parliament released reports earlier this year concerning the Sexual Reassignment Act and the legal recognition of gender diverse people. These reports recommended legal reform to allow for the legal recognition of people who identify, amongst other things, as intersex. The government looks forward to introducing legislation to bring effect to these recommendations in the near future. In any event, the intent of this bill is to ensure that all South Australians are encompassed, irrespective of their gender identities.

In response to the question asked by the Hon. Mr Lucas regarding the effect of gender diversity and intersex status on sporting clubs, toilets and correctional facilities, I can advise that these amendments do not place an additional burden on clubs, associations and public authorities to introduce alternative facilities such as intersex toilets or change rooms. Individual associations and organisations will deal with this issue by implementing policy that is suitable for their respective organisation.

This bill simply seeks to ensure that the language we adopt in our laws does not discriminate against people on the grounds of their sexual orientation, gender, gender identity or intersex status. With that, I am in the hands of the chamber and the committee. The proposal is that we move that the report be adopted and come back at a later stage to finalise consideration of this legislation.

The Hon. S.G. WADE: I welcome the minister's answers and his undertaking to allow the house time to consider them. Could I, by way of clarification—and this may need to go on notice—just clarify the minister's answer in relation to one of my questions. The question was: does the government have formal legal advice on this issue? I understand that the minister's response was that there was crown law advice and it did not raise concerns with the amendments.

I presume the minister in providing that answer is saying that crown law did not have any concerns about the government's amendments, not the deletion of those amendments from the bill, and to be frank, my concern was more about the impact of deleting those provisions from the bill. Whether now or on a subsequent occasion, I would be interested to know whether the government has had advice on the impact of deleting those clauses of the bill.

The Hon. I.K. HUNTER: The advice I have just received is that the crown advice related to the amendment bill, not to the subsequent activity in the lower house.

The Hon. S.G. WADE: I am not sure if this is an appropriate question to the minister. Perhaps it is something that I might be advised by the Chair but consult with the Clerk about subsequently. If this house was inclined to have this bill address the provisions of the Criminal Law Consolidation Act, considering that the bill that arrived from the House of Assembly does not open up that bill, is it possible for us to consider amendments in relation to that act in the context of this bill?

I thank the Chair for giving me the opportunity to consult the table. My understanding is that considering this bill arrived without any reference to the CLCA and because of the stage of the bill we have now reached, it will not be possible to reopen the CLCA in the context of this bill.

The Hon. T.A. FRANKS: I simply wish to reiterate the Greens' support for this bill and note that while I had foreshadowed an amendment, I will not be moving that amendment because we have now progressed with that piece of legislation recognising lesbian coparents.

Progress reported; committee to sit again.

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