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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-11-29 Daily Xml
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Births, Deaths and Marriages Registration (Gender Identity) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 17 November 2016.)

The Hon. T.A. FRANKS (16:02): I rise on behalf of the Greens to speak to the government's Birth, Deaths and Marriages Registration (Gender Identity) Bill 2016. While the Greens acknowledge that this bill is an enlightened piece of legislation that will break down many oppressive barriers to gender-diverse South Australians, and while we want to celebrate this reform with our stakeholders and members of the gender-diverse community, we have a duty to the South Australian public to uphold.

This duty is to not be swept up in the eventual victory that the LGBTIQ+ community has managed to squeeze out of this parliament. This duty is to acknowledge the long and continuing fight. This duty is to acknowledge the fact that the community and we here, as their representatives, have been pushing for this reform for far too many years. In this place, in 2014, I introduced the Sexual Reassignment Repeal Bill with the following words:

From my consultations with those who are members of the transgender community in this state, and indeed members who were born in this state but have moved interstate, I know that this act, which is 26 years old and has never been reviewed, has never worked, not even in that first year of its operation.

This bill, while well-meaning and of its time, does not serve the transgender community, the broader community, or the medical health professionals of this state. The community has never supported this act. It has taken the government nearly 30 years to listen to their voices. That bill of mine was referred to the Legislative Review Committee. Their report was handed down in April this year. While some of the findings made in this report have been addressed in this bill, there will be continuing issues for trans people in our state. These include:

a lack of access to medical services, including financial access to surgery and the provision of a specialised, publicly funded medical service to the broader gender-diverse community;

the prohibitive time and cost stemming from the need for a Magistrates Court to approve applications for the recognition of change of sex and the issue of recognition certificates for people under 18; and

the issues faced by prisoners, who are unable to access private medical care with regard to gender dysphoria.

However, now I have done my duty in saying that the fight has been long and that there are still many battles to fight, I will outline the extreme positives within this piece of legislation. Allowing a person to register their change of sex or gender identity with the Births, Deaths and Marriages registrar, without invasive surgery, will change the lives of trans and gender-diverse people, offering them the autonomy that they have long deserved. I have constituents who will now be comfortable to apply for a driver's licence, to attend social events and live everyday life with their identifying documents that reflect who they are, not who someone, somewhere told them they once were.

Likewise, removing the archaic requirement for someone to divorce their partner before allowing them to register must be the only loophole in any piece of law in this state where conservative politicians argue in support of divorce. We have heard some unsettling arguments on this particular provision, but in reality it will be those people who do have supportive personal relationships and are married who will be able to maintain that status quo—something I would have thought the conservatives would support—while they go through what is undoubtedly an incredibly introspective and torrid chapter of their lives.

These requirements have been on our books for far too long now and, in this final week of sitting, I hope we will see this landmark bill reach this place and, indeed, see the Premier later this week making an apology to members of this and the broader rainbow communities. I commend the Weatherill Labor government for its actions, but I hope they do not forget the many people whose lives do not revolve around our often exclusive and fickle parliaments and who are not around to see these mammoth reforms this week.

I would like, in particular, to thank Zoey Campbell of the gender identity reform group, who organised and attended a briefing with members of parliament earlier this month on this particular bill. She has long worked and has long educated me and other members of parliament on this issue and, indeed, has been a uniting force in the community, bringing the information required to address the law reform needed to a point where it was manageable and directed. We are seeing some of the fruits of not just Zoey's labour but of the many people who have sat in many meetings about these particular issues.

I have certainly been privileged to hear personal stories—the stories of realisation, of transition, of fear and of courage—and I thank all of those people for sharing those stories with me and with others. It is not easy sharing those things, particularly when quite often you simply want to pass and you do not want to be noticed at all.

I commend those members of the community, particularly the trans community, who have stood up and been noticed, have made their voices loud and clear and have worked together, despite each of them having incredibly different stories. They are more than pieces of paper, but this bill today will ensure that those pieces of paper, when the bureaucracy comes up against them in their lives, will no longer define them, or will ensure that they will be pieces of paper that they are proud to carry.

I commend the recent work of the government on this bill yet again and look forward to further debates to progress these rainbow forms.

The Hon. J.A. DARLEY (16:08): I rise very briefly to indicate my support for this bill which will allow adults to change the gender marker on their birth certificate without the need to undergo surgery, which is currently the case. I recognise that this relatively minor change to the legislation will mean a great deal to those who are affected. With that, I support the bill.

The Hon. G.E. GAGO (16:08): I rise again to make a very short statement of support for this bill. Obviously, I am a longstanding supporter of the LGBTIQ community and am very committed to eliminating discrimination. While this bill will have very little effect on most South Australians, for those who are impacted, these changes will make a considerable, positive difference to their lives. Everyone has the right to have their gender identity recognised and respected. I congratulate those who have worked on this bill and particularly those individuals and organisations in our community who have campaigned for this reform and those members in this council who have indicated support for this bill. I commend the bill to the house.

The Hon. K.L. VINCENT (16:09): I again take the floor briefly to indicate my support for this bill and all other pieces of legislation in the 'rainbow raft' of legislation, as it has become known. I am very happy to be on a rainbow raft sailing down the river of life. This bill contains a very simple change that will make a big difference to the lives of those people who are transgender in our South Australian community, because it will simply allow them to have their true gender identity properly recognised on their birth certificate.

At the moment, not being able to easily do so causes many difficulties, including feelings of not being recognised or respected for who the person genuinely is but also more practical issues such as, because it is easier to change some documents than others, there arises some inconsistency in how the person's gender is identified in documentation which, therefore, can also cause some legal, practical difficulties. This is a very simple change that we can make and, importantly, with the passage of this bill, which I certainly hope will eventuate, it will also be able to happen, as has been said by other members, without that person having to prove that they have undergone gender-affirming surgery.

This is important for a number of reasons as explained to me by some members of the transgender community who came in to brief members on why this bill was important to them, and I thank them for that. Those issues include the fact that surgery can be financially prohibitive for many people, or it just might not be the right choice for them. They might be quite happy to identify as their chosen gender without needing to change their body gender which, as we are increasingly understanding as a society, is a very nuanced concept.

We need to make sure that we are giving people as much freedom as possible to identify in accordance with their own wishes for the good of their physical and mental health. With those very brief words, I am happy once again to lend my support to this bill.

The Hon. R.L. BROKENSHIRE (16:12): I rise to briefly speak on the Births, Deaths and Marriages Registration (Gender Identity) Amendment Bill. This is the second attempt to pass this legislation. The first bill of a similar name introduced by the Premier in the other place was ultimately defeated. Thereafter, the Premier reintroduced a revised version of the bill which passed with amendments despite considerable opposition.

The bill repeals the Sexual Reassignment Act 1988 and establishes a new process under the Births, Deaths and Marriages Registration Act 1996 that would allow a person of any age to apply to change their recorded gender or gender identity. The bill applies to adults and children born within or outside of South Australia and, for a person under 18, the bill requires that the Magistrates Court approve of any application for the altering of a child's sex or gender identity. Under the previously defeated bill, the age was set at 16.

Based on the recommendations of the Legislative Review Committee and the South Australian Law Reform Institute, once an applicant receives what is titled 'appropriate clinical treatment', which may only involve counselling, the applicant will be eligible to apply to change their recorded gender or gender identity on their birth certificate. Moreover, as a result of the member for Schubert's amendment, the applicant must have undergone a prescribed period of counselling before that person can be deemed as having received a sufficient amount of appropriate clinical treatment.

Although I understand the merits behind this particular amendment, having considered this bill as a whole, Family First will not be supporting it. We simply do not support a bill that allows children under a particular set of circumstances to change their recorded sex or gender identity. I recall the recent disturbing case arising in New South Wales where a child aged four began the process of transitioning gender. The child had not even begun school and was already undergoing clinical treatment to change gender. Under the bill, the court must consider different factors when determining the application from a child under the age of 18. In reality, I doubt any child, especially one as young as four, could ever fully appreciate the magnitude of their decision.

I agree with the statement that birth certificates should record the biological details and parentage of a newborn, not subsequent feelings about one's own gender identity. The issue of gender identity again brings up the issue of whether those who have their gender changed will be able to access gender-exclusive facilities. The government has passed this problem onto individual organisations to deal with. This legislation, as well as other similar pieces of legislation, is problematic and will simply create more problems than it solves.

However, the most concerning part of this bill and one of the main reasons Family First will be opposing it is that it provides a workaround to legalise same-sex marriage in South Australia. This is entirely inappropriate given that the matter of legalising same-sex marriage is a federal issue. I say that there should be a plebiscite and there is a mandate for a plebiscite which is being blocked in the Senate at this point in time.

What I refer to is the lack of any provision in the bill preventing a person who is in a same-sex relationship to seek counselling for the purposes of changing their recorded gender to legally marry their partner. Evidently, if this bill were to pass, there would be very serious consequences. These concerns have not been appropriately addressed and for those reasons Family First will be opposing this bill.

I note that we will be speaking on other same-sex matters during this week and I look forward to putting counter views to some of those that are being pushed very hard by the other side. I struggle, personally, to believe that we are debating this particular piece of legislation because the reality is that biologically you are born male or female, you are recorded that way on a birth certificate, and to then try to change that history retrospectively, to me, makes no sense. So, we strongly oppose this bill.

The Hon. J.M.A. LENSINK (16:16): I will be supporting this bill. I think it is a long overdue reform for our South Australian parliament. I commend the Hon. Tammy Franks from the Greens for attempting to amend this legislation, previously the repeal of the Sexual Reassignment Act, and to bring in provisions that will simplify matters for the transgender community. I would also like to thank members of the transgender community, particularly Zoey Campbell, who is the convenor of the gender identity reform group, and other members for coming into parliament a couple of weeks ago to explain the practical difficulties that they have with the current legislation.

I think, in a nutshell, the current legislation is quite a difficult test for some people to go through. If they do not wish to proceed with surgery, they are also required to obtain a certificate from court, and if people are in the process of transitioning or they do not wish to go through with surgical procedures then those criteria are too strict for them, and this is particularly difficult for young people.

We heard of the practical difficulties that people have in terms of their documentation. I think it must be quite heart wrenching for lots of people to have to undergo that problem. I would also like to again thank Zoey Campbell for the notes that she has provided us with in relation to this matter. I would like to quote from that, and that may help to clarify some of the difficulties. Under 'Note One: Why we need reform' there are a couple of dot points which I will read into the record:

This negative effect is due to social anxiety because of non-matching identity documents required for employment, healthcare, Centrelink, housing and other matters. Trans people may regularly be required to out themselves, and worry about social discrimination. The inability to gain accurate identity documents often causes unnecessary affront to the transgender persons privacy.

Each person born in Australia may from time to time be called upon to certify their identity via their Birth Certificate or an Extract.

I think that is certainly very true. It continues:

It is a serious social disadvantage to not have a Birth Certificate that reflects social presentation, and that can be used for common purposes without fear of social challenge or abuse.

I understand that the provisions in this legislation match those that apply to passport documentation and I note that there are also provisions to prevent the use of previous birth certificates for fraudulent purposes. With those comments, I commend the bill to the house.

Debate adjourned on motion of Hon. J.S.L. Dawkins.

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