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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-07-26 Daily Xml
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Statutes Amendment (Gender Identity and Equity) Bill

Committee Stage

In committee.

(Continued from 5 July 2016.)

Clause 1.

The Hon. R.I. LUCAS: The minister, I think, in the last sitting week, responded to some questions the Hon. Mr Wade put and some of the questions that I put during the second reading. I was not in the chamber at the time, but I thank the minister for the replies to the questions that he gave. There were one or two questions that I put in the second reading that have not been replied to, and I would like to pursue those issues with the minister at clause 1.

In relation to a partial answer I received, one of the issues that a number of people have raised with me, and I raised in the second reading, were the exact definitions of the terms that the government understood in terms of the purview of the legislation in relation to the LGBTIQ community. The response I got from the minister, in essence, referred me to various documents, without actually indicating what the definitions were in those documents, then indicated that, in part, there had been a briefing by the government where the government had explained to those members of parliament and staff who had attended the definitions of the terms that were used, and that a document had been circulated to people who had attended that particular meeting.

As I said, I did not attend that particular meeting, but I have now tracked down a member of staff who attended, and I want to place on the record what the government's view is, so I am advised now, as to the definition of the terms in the legislation that we have before us. The document that I have been given is a document entitled Statutes Amendment (Gender Identity and Equity) Bill 2016, Overview. There is a note from the staff member who attended stating, 'Provided at the briefing,' and the section that I intend to refer to is Statutes Amendment (Gender Identity and Equity) Bill 2016 FAQs (frequently asked questions, I assume). The government's position, therefore, in terms of their definitions that one should use or understand in terms of the coverage of the legislation is as follows:

Gender identity: The term 'gender identity' refers to a person's deeply held internal and individual sense of gender.

Intersex: The term 'intersex' refers to people who are born with genetic, hormonal or physical sex characteristics that are not typically 'male' or 'female'. Intersex people have a diversity of bodies and identities.

LGBTIQ: An acronym that is used to describe lesbian, gay, bisexual, trans, queer and intersex people collectively. Many sub-groups form part of the broader LGBTIQ movement.

Sex: The term 'sex' refers to a person's biological characteristics. A person's sex is usually described as being male or female. Some people may not be exclusively male or female (the term 'intersex' is explained above). Some people identify as neither male nor female.

Sexual orientation: The term 'sexual orientation' refers to a person's emotional or sexual attraction to another person, including, amongst others, the following identities: heterosexual, gay, lesbian, bisexual, pansexual, asexual or same-sex attracted.

Trans: The term 'trans' is a general term for a person whose gender identity is different to their sex at birth. A trans person may take steps to live permanently in their nominated sex with or without medical treatment.

Queer: This term was adopted by the South Australian Government in the development of its LGBTIQ Inclusion Strategy and is generally accepted among the individuals and groups that the Law Reform Institute consulted as being an appropriate and often empowering term with which some individuals identify. In the Inclusion Strategy, the term 'queer' is used as an umbrella term that includes a range of alternative sexual and gender identities, including gay, lesbian, bisexual and transgender.

According to the minister they are the government's definitions, that are to be understood when we look at the legislation before us.

I think it is useful, for the small number of people who read the Hansard, to place those definitions on the public record. As I raised in the second reading, it probably would have made sense for that to have been outlined in the second reading or possibly even in the drafting of the legislation, because not everyone in the community is familiar with the definitions, or familiar with the government's understanding. For example, when an explanation of the term 'queer' is outlined, the government's response is that this was a term adopted by the South Australian government in the development of its strategy. It encompasses, as the definition outlines, a number of the other groups referred to in the LGBTIQ community.

The minister has responded to the other question I asked: how many people did the government believe had legally identified as intersex, according to the government's definition. The minister's response was that a survey conducted in recent years (I am not sure exactly what year it was) indicated that in 2012, I think, there had been two people in South Australia who identified as being intersex, but in the most recent survey—which is obviously since 2012—that number was now three.

That is consistent with the answer minister Close gave in the House of Assembly debate. I think she indicated the size of the community nationally was three, but it may be that she misspoke and was referring to the size of the community in South Australia. I assume if there are three people identifying as being intersex in South Australia there are more than three nationally; South Australia is not the only state in the nation with people who identify themselves as being intersex.

There are two issues that I raised in the second reading that have not been responded to. The first was a general policy question. Clearly, it does not have to be resolved in this particular piece of legislation, and it may or may not be resolved in subsequent pieces of legislation. It was really a question—given that the issues had been raised in the House of Assembly debate—about the state of the government's thinking on it.

That was an issue that I think the member for Newland, the Hon. Mr Kenyon, and one or two other members had raised: whether or not the government considered, as a policy issue, that there was to be, or could be, a process that validated someone who had been born male but who then, for their own reasons, wanted to identify as a female. In this legislation it would appear that is just a judgement the individual takes. Their birth certificate may still indicate they are male; that does not change even though they may identify as being female.

My question is: in a policy sense, has the government considered the issues raised in the House of Assembly debate in terms of whether or not there is a process that someone could or indeed should go through when they find themselves in that circumstance, where they can, having gone through some sort of legal process—and again, as I highlighted in the second reading, I am not talking about any medical procedures or anything like that—change their birth certificate, for example, or have some legal documentation which indicates that their birth certificate still says that they are male but they now have this legal document which indicates that they identify as being female?

I think one of the House of Assembly members raised the issue of whether or not the birth certificate might be amended. All these issues have legal issues, but that might be even more significant. Given the issues that were raised in the House of Assembly debate, has the government considered the questions that were raised and does the government believe there is any merit in further consideration by the government, and the parliament subsequently, of the issues that have been raised?

The Hon. I.K. HUNTER: I thank the Hon. Mr Lucas for his question. First of all, I need to say that, in regard to this legislation, as he hinted in his opening remarks, it is not particularly required to be addressed. But, having said that, my advice is also that, in further consideration, in further legislation to come forward on the recommendation of the South Australian Law Reform Institute, that will be an issue that the government will need to consider.

The Hon. R.I. LUCAS: Is the Law Reform Institute considering the particular issue that I have canvassed?

The Hon. I.K. HUNTER: Both the South Australian Law Reform Institute and the Legislative Review Committee of this parliament have provided some information about the process around how one would change their gender identity and the process that would be required. That is something that the government is currently considering, or will be considering shortly, as I understand it. I am not quite sure in what format those recommendations have come up from the Legislative Review Committee or indeed in what format they have come up from the South Australian Law Reform Institute but, as I have indicated, the government will need to consider that issue.

The Hon. S.G. WADE: In the minister's response to the Hon. Mr Lucas, in terms of the South Australian Law Reform Institute material, is he referring to report 5 of February 2016 titled 'Legal registration of sex and gender and laws relating to sex and gender reassignment'?

The Hon. I.K. HUNTER: I thank the Hon. Mr Wade for his very helpful question. I am advised that that is correct.

The Hon. S.G. WADE: Considering that the government has had five months to consider this matter, when does the government anticipate that legislation addressing those issues might be brought before the parliament?

The Hon. I.K. HUNTER: My advice is that the South Australian Law Reform Institute provided its report in February. The Legislative Review Committee provided its report in April. The government is currently considering those two reports and will come up with a position into the future. I have no information before me on the timing of that.

The Hon. S.G. WADE: I too would like to take the opportunity to thank the minister for his responses to my questions at clause 1. If I could provide some response to them, in my second reading speech on 21 June, I raised my concerns that the House of Assembly, in deleting a clause in relation to the medical termination of pregnancy, raised some ambiguity as to whether in fact the law would now apply to people who were capable of bearing children but who, as a matter of law, were not seen as women. In his clause 1 response, the minister confirmed that there is that ambiguity.

I should say that, whilst I support this legislation in principle, I am not going to support it when it would undermine what I believe is a very delicate community consensus to protect human life, or potential life, and also in the context of the fact that we have very imminent legislation that would, if you like, deal with these issues in a substantive way. In the answers the honourable minister has given to the Hon. Robert Lucas, he has indicated that legislation is not far away.

We had the law institute report in February. We had the Legislative Review Committee report in April. I believe that it is actually somewhat premature to deal with these issues in isolation of the broader issues. In that respect, as I have indicated, I broadly support this legislation and, in fact, I would suggest to the government that it would be better for this legislation to be put aside and for us to take an opportunity to consider other elements from the February 2016 report.

The 2016 report from the Law Reform Institute specifically uses Yogyakarta principle-type definitions of gender identity, which I think are to be preferred. They are less binary and show greater respect for a person's right to self-determine their own identity. I certainly think they should be preferred to the definitions in this legislation. If my vote matters, I will not be supporting the passage of the legislation in the hope that we might have better legislation soon.

The Hon. I.K. HUNTER: All I can say to that is thank you for that contribution. The definitions that are used at clause 4 you will see refer to gender identity and intersex status. My advice is that they are consistent with the commonwealth Sex Discrimination Act, and the government intends to proceed.

The Hon. R.I. LUCAS: The other issue that I raised in the second reading to which the minister did not provide a response was again an issue raised by the member for Newland, the Hon. Mr Kenyon. He outlined a set of circumstances which I repeated in the second reading where someone, not for genuinely held reasons but a male who dressed as a female, says that they were identifying as a female for the purpose of gaining access for reasons of perversion and otherwise to female toilets and female change rooms.

My question was: what will be the legal situation in relation to that? Would police still be able to charge the person in those circumstances with the same offences as they currently could? Could we be sure that the legislation will not be able to be used by a clever criminal lawyer—I say 'clever' criminal lawyer, but any criminal lawyer—to say that the male has self-identified prior to entering the toilets or change room as a female and was therefore entitled to access the change rooms and toilets?

The response I got back was a little disingenuous because it just said that there is nothing in the legislation that will require clubs and footy clubs, etc., to provide intersex toilets or whatever else. That was not my question. My question was the question the Hon. Mr Kenyon had put, and I am just seeking an affirmation from the government in terms of its legal advice that the police would be able to make charges in the circumstances the Hon. Mr Kenyon has outlined and I have repeated by way of question in this chamber.

The Hon. I.K. HUNTER: My advice in relation to that question is that nothing much changes really in the current situation. The police will be able to use their discretion as a matter of course, as you would expect that they would if the situation was to arise even now.

The Hon. R.I. LUCAS: The only difference is that we are now recognising that a person can say with gender identity that they had a deeply held view that they were a male, but they are now identifying as a female. There is no legal process, as the Hon. Mr Wade is talking about.

The government is contemplating recommendations evidently which I have not seen, but the Hon. Mr Wade clearly has, in terms of how you might go through a process to say that here is someone who has genuinely been born a male on the birth certificate, but now identifies as a female and they can demonstrate that through some sort of legal process. I am assuming this from what the Hon. Mr Wade has briefly outlined, but we are not in that set of circumstances at the moment. We do not have that position. A male can identify as a female and say that they have this genuine view. They do not have to have demonstrated that to anybody. They could just make that claim.

The concern the Hon. Mr Kenyon has raised is: in the absence of some sort of legal process or justification or verification or validation of a deeply held view, what is to stop a male dressing as a female and entering female toilets and female change rooms, for reasons of perversion or otherwise? Again, from my viewpoint, I think it is unsatisfactory just to say, 'Well, look, nothing much has changed. The police can do what the police can do.' There is something changing, I am assuming.

The government has introduced legislation which it believes does something. It is allowing people to indicate that they can be born and have a birth certificate as a male but say that they identify to be female without going through any legal process to verify or validate that. The Hon. Mr Kenyon is raising, I think, a reasonable question. Again, I can only stress a personal view. I think it is unsatisfactory just to say, 'Well, nothing much has changed. The police can do in the future what they can do now.' I think the world is changing a bit as a result of the government's legislation.

The Hon. I.K. HUNTER: With all due respect, no. I appreciate the points the honourable member is trying to draw out, but, quite frankly, let us go back to the purpose of the bill. It is to change language that is used in legislation to remove discrimination. That is why it is there. It is not going to change in any way the operation of current provisions of legislation that is in effect right now. To say otherwise, I think is wrong and misleading.

If a person is trying to take advantage of this legislation in a fraudulent way, then they do not have a deeply held, genuine view about a different sexual orientation or a different gender and the police can act now as they would if this legislation is passed, because nothing in this legislation changes the operation of the current provisions. It is simply to change the language to remove discrimination. That is all it does, and to read anything further into it, I think, is disingenuous.

Clause passed.

Remaining clauses (2 to 39) and title passed.

Bill reported without amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (16:37): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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