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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-12-06 Daily Xml
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Births, Deaths and Marriages Registration (Gender Identity) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 1 December 2016.)

The Hon. R.I. LUCAS (12:21): I rise to support the second reading, and for those 25 assiduous readers of Hansard I refer to my remarks in the Relationships Register (No 1) Bill which govern my personal views and the way in which I have sought to form positions on each of these four bills. I indicate at the outset that I will support the second reading of the bill to allow debate through the committee stage but, subject to what occurs in the committee stage, I will at least foreshadow that I am unlikely to support the third reading of the legislation. I have some concerns about some significant aspects of the bill, which, to a greater degree, will be explored in the committee stage.

Reflecting on the debate in the House of Assembly and the many submissions that we have received both for and against the legislation, I indicate my personal view is that I am prepared to consider some limited changes in this area but not some of the more significant ones that have been included in the legislation as it stands. The change which moves the process for somebody seeking to change their sex or gender identity from the courts and the magistracy to a Births, Deaths and Marriages administrative process is one I am prepared to support.

I have taken submissions about the difficulties some individuals experience in terms of current processes and exposing themselves to the court process or the magistracy, and their inclination to support the proposed process which involves Births, Deaths and Marriages. I am prepared to support that limited aspect of the change to the legislation.

Also under the proposed changes, an individual would have access to a new birth certificate through this proposed process of Births, Deaths and Marriages. I can understand and accept that proposed process in certain limited circumstances, whilst retaining, I think by way of an amendment that was moved in the House of Assembly, that the original detail in relation to that individual (and that essentially means their original birth certificate) would be retained by Births, Deaths and Marriages for various legal processes.

Clearly, in some of the discussions that I have had, if someone changes their sex or gender identity and has a new birth certificate, it may well be that old grandfather Frank or grandmother Freda, or whoever it is, might have left some part of his or her inheritance to a so designated grandson or granddaughter as per an original birth certificate, and the legal position—again, I do not profess to be a fully qualified lawyer practising in this jurisdiction—might create problems if there was not access in certain circumstances to the original documentation. I think that has been canvassed by the House of Assembly, and the amendments that were passed by the House of Assembly do cater for those sorts of circumstances.

Those aspects of the bill that relate to a changed process to the extent of possible removal from the magistracy or the court process and leaving it with Birth, Deaths and Marriages, the retention of the original certification for various legal purposes within Births, Deaths and Marriages, providing particular individuals who have successfully gone through a process to change sex or their gender identity and arming those individuals with a new birth certificate, I am sympathetic to and prepared to support.

I have concerns about some of the more significant aspects of the legislation. The process that we are being asked to support, which would allow an individual to change gender identity with, in essence, some unspecified minimum period of counselling from a medical professional, is insufficient. Whether there is some middle ground between what is proposed in the legislation and the current situation, I am not sure. There is certainly nothing before us by way of an amendment from anyone which provides some middle ground between what is proposed in the bill and the current set of circumstances, so I am left with either supporting the status quo or supporting the change, and my position is that I cannot support the change in this particular area.

It does raise the issue of the possibility of forum shopping for psychologists and psychiatrists. Those of us who have had exposure to the workers compensation jurisdiction know that there is a decades-long debate or dispute where there are medical professionals who are known to be prepared to support workers in disputes in relation to bad backs or stress-related issues or whatever it might happen to be and, on the other hand, medical professionals who are prepared to support the employers' position.

In relation to medical issues such as bad backs, repetitive strain injuries or stress injuries, issues about which it is sometimes difficult, by way of clear physical evidence, to demonstrate the rightness or wrongness of the medical diagnosis, there is clearly forum shopping, where you have medical professionals more inclined than not to support one side of the argument, and medical professionals on the other side who are more inclined than not to support the other side of the argument.

I have no doubt that, as it is possibly likely that this measure may well go through the parliament, 10 years down the track we will be having the debate about forum shopping and a dispute or an argument about those medical professionals in the particular jurisdiction who are prepared to, in essence, sign off on an individual who wants to change their gender identity, in particular.

I also note, in the House of Assembly debate, the statements made by the member for Schubert. I suspect that minister Hunter, even without my prompting, may or may not have been indicating his view of the accuracy of the conversation that the two of them had. However, to place it on the public record, the member for Schubert put on Hansard that minister Hunter had told him during a discussion on the issue that there was 'no way to close the gay marriage loophole'.

The member for Schubert and a number of other members who opposed this aspect of the legislation asked a series of questions of the proponents of the legislation in the House of Assembly and identified the issue which they described as the 'gay marriage loophole'. If two males, for example, were in a same-sex relationship and one, undertaking whatever the minimum period of counselling might be through a medical professional, identifies as changing their identity and changes to female, it would then be possible, so this contention goes, to get married and continue the relationship. Then, potentially down the path of undertaking counselling, they could revert their gender identity back to male.

That is what members in House of Assembly described as the 'gay marriage loophole'. As I said, the member for Schubert quotes minister Hunter as having told him that there was no way to close that 'gay marriage loophole' in the legislation. As I said, either in response to the second reading or certainly by way of questions in committee, I am seeking minister Hunter's response to that particular claim made by the member for Schubert in the House of Assembly debate.

Another issue I have concerns about relates to under-18s being able to access the proposed process for changing gender identity, albeit with a magistracy process involved. I think there is already an amendment that seeks to address that issue and my inclination is to support that particular amendment as well. With those relatively brief comments, I again indicate my willingness to support the second reading to allow debate to continue in the committee stage, but flag at this stage that I am unlikely to support the third reading of the legislation.

The Hon. T.J. STEPHENS (12:32): I rise to speak to the Births, Deaths and Marriages Registration (Gender Identity) Amendment Bill. This bill seeks to change the way personal biographical information is registered, stored and retrieved by the state and its citizens within South Australia. My understanding of the reasons for this bill is that transgender and intersex people may often have identity documents which are inconsistent with their current status. This prevents these people from fully accessing further services which require multiple documents to prove their identity, as the inconsistencies prohibit access.

I believe that it was confirmed in the other place and by the minister at briefings that the information recorded at the person's birth is not erased, nor is it changed, but new information is added when a person changes their gender. I would like him to confirm this during his summing up. Furthermore, I understand when a request for a copy of a birth certificate is made, only a person's current information is pulled from the register, so it remains up to date and consistent. I want to know if I am correct in this assumption.

My concerns with the bill are not specifically around this issue, as this seems entirely practical. I do have an issue with some of the potential loopholes or unintended consequences of allowing people to change their gender at will. First and foremost, there is a concern about the required threshold for changing one's gender. It is such a big decision and a permanent one, and should remain as such. We should not be reducing gender to something as fluid as a mood or a whim. In the other place, there were a number of amendments moved by the member for Schubert which sought to strengthen this threshold by imposing a minimum period of treatment, which is to be prescribed by regulation. I would like the minister to give an indication of what this time period would be.

Given that this bill repeals the Sexual Reassignment Act and replaces the current surgical threshold with a therapeutic one, I think these details are important enough for the council to be made aware of before a decision is made on such reform. By extension, children with psychological gender dysphoria would be able to change their gender more easily whereas before it may have required a diagnosed medical or biological anomaly.

I acknowledge the need to allow children who have actual biological anomalies which may require a change in gender early in their lives, and the law should accommodate this, as I believe the current act does. However, we must be very careful not to allow modern gender theory and ideology to pervert such a delicate process. I would not want to see this bill allow a parent with a certain ideological bent coerce or encourage their children to change their gender when there is no medical or biological need to do so. We must be very careful when it comes to the psychology of children and we must remember that children can change dramatically as they mature, and it is important that we do not allow a situation where children are having to reverse changes in gender because they were made without the appropriate level of scrutiny and discernment.

In regard to another issue with the bill, the honourable member for Hammond in another place raised the question of whether allowing such freedom to change one's gender could act as a backdoor path to same-sex marriage. Unfortunately, the minister could not offer any reassurance to the member for Hammond and, as I heard previously from the contribution of the Hon. Ms Franks, it seems that this is actually a reason for the bill to go ahead.

Regardless of what one's views are on the issue of same-sex marriage, this council should not be seeking to undermine the commonwealth Marriage Act and the commonwealth's exclusive constitutional power over marriage. Until the commonwealth Marriage Act changes, we should not be encouraging any behaviour or action contrary to it. The minister may also want to address this concern. Finally, I want to note a concern around the definition of gender by regulation which is what the bill allows for in its current form. Can the minister confirm which genders will be allowable for identification? Furthermore, why would they not be prescribed in legislation, given that any progress could be removed with a future minister's pen stroke?

The Hon. D.W. RIDGWAY (Leader of the Opposition) (12:37): I rise to make some very brief comments on the Births, Deaths and Marriages Registration (Gender Identity) Amendment Bill 2016. My colleagues who have just spoken—the Hon. Terry Stephens and the Hon. Rob Lucas—have posed a number of questions which I would have posed if they had not, so I will look forward to the answers that the minister may give in relation to those questions. My starting position is that some people have some real issues at birth, and my colleague the Hon. Terry Stephens mentioned that the current law allows for them to be satisfactorily dealt with through the legal process and their sex displayed adequately on any documentation, birth certificates, etc.

I have a fundamental view that if a person is born male or born female, that should be recorded. I really have no problem with what people do with their lives, but at the end of the day that was the fact and the reality at the time, so I do not see that there is any real benefit to be gained from this. Of course, you also have all the questions that have been raised by my colleagues that may lead to some other issues. I think all of us have received a number of emails and correspondence from people who are quite concerned about the unintended consequences of this particular legislation. Often when we look at these very emotive conscience issues, from the Liberal Party's point of view, we have to be careful of the unintended consequences of the journey that legislation may lead us on over the next 10 or 20 years.

I am concerned that this bill will lead to a whole range of unintended consequences that may be very difficult for the community to deal with. I have indicated that I look forward to the answers given to the questions that the Hon. Rob Lucas and the Hon. Terry Stephens have posed. I indicate that at this point in time I will support the second reading of the bill, because I think it is always important to do so, but I am unlikely to support the bill in its final stages.

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Climate Change) (12:40): I rise to close the debate at the second reading stage. I would like to thank honourable members for their important contributions. I am told that changing one's gender is a very significant life decision and not one that individuals take very lightly. This was highlighted, of course, in the many submissions made by transgender South Australians to the South Australian Law Reform Institute.

As the council would be aware, the South Australian Law Reform Institute has recommended a suite of legislative reforms that help to remove some of the state's discriminatory laws for LGBTIQ South Australians. This bill forms the basis of the government's response to the SALRI report and the government's intention to remove some of these discriminatory barriers for the LGBTIQ community.

South Australia's statute book has often been the home of many firsts. For example, in South Australia the Sexual Reassignment Act 1988 was one of the first in the nation, I think, when it was enacted. However, this act is now somewhat outdated and overly bureaucratic. Transgender people elsewhere in our nation can have their change in gender accepted and new birth certificates issued without the need for invasive surgery or complicated procedures.

A transgendered South Australian can, like any other Australian, get a passport issued according to their gender identity by the federal government and recognised internationally, according to the rules of the International Civil Aviation Organization, without the need for invasive surgery. That has been law in Australia for the past five years, I understand, and reflects widely accepted practices in other countries, including the United States, countries of the European Union and our neighbours across the Tasman.

This bill will bring South Australian law that once was at the forefront into line with national and international best practice. Importantly, it also makes a significant and practical difference to the lives of those South Australians whom it affects directly. It is important to note that this bill, like the other SALRI bills, comes after extensive engagement, research and analysis. This has included consultation with South Australia's LGBTIQ community, the medical profession, the legal community and other parties, and it is clear that there is wide support for this legislation.

I would like to take this opportunity to address some of the questions raised by the Hon. John Dawkins. I was asked in his contribution to this bill whether an individual in a same-sex relationship could apply to change their gender identity without physical alteration and then marry their previously same-sex partner under the commonwealth Marriage Act 1961. I was also asked to confirm whether, after the marriage was solemnised, the individual could undertake to have their gender identity changed again. I suppose this is theoretically possible. A registered medical practitioner or psychologist, however, must make a legitimate assessment of the circumstances of an individual's case.

In relation to the question of whether certain medical practitioners or psychologists could become go-to medical professionals for those wishing to access marriage in this way—as others have suggested, this 'shop around' type of professional—I can advise that there are provisions within the bill and the Birth, Deaths and Marriages Registration Act to protect from and penalise false and misleading declarations made in relation to any application under the bill. Providing a false or misleading declaration would also result in a medical professional risking a breach of the code of conduct pertaining to their profession.

The Hon. John Dawkins also asked about the experience of other jurisdictions. I do not have any advice about issues being experienced in other jurisdictions, but I do note that provisions that exist for gender reassignment and changes to birth registrations vary amongst Australian jurisdictions. The Victorian parliament is currently considering draft legislation, I am advised, whereby a person can apply to have their birth registration amended without the need to provide evidence of medical or clinical intervention. Instead, they must simply provide a supporting statement from another adult who has known the applicant for at least 12 months. This person must support the application and believe it has been made in good faith.

Members would be aware that, when this bill passed through the other place, an amendment was passed requiring that an appropriate amount of clinical treatment be prescribed by regulation. These regulations will be developed through consultation with stakeholders and the medical profession, obviously. It is necessary to acknowledge that no individual is the same and that clinical treatment needs to be able to reflect this, and members of the medical profession are the best placed individuals to advise us on this.

Finally, the Hon. John Dawkins asked how the bill ensures that children and minors who, either themselves or through their parents or legal guardians, access this legislation are psychologically capable of contemplating a decision that will affect the rest of their lives and also ensure they are not being coerced by other parties.

With regard to children, the bill will continue to require that the Magistrates Court make an assessment as to the best interests of the child who is subject to the application. I understand that is the existing provision. In determining whether or not to grant an approval, the court must take into account a variety of factors, including whether or not the child understands the meaning and implications of the decision and whether the child has the capacity to consent.

The court has the power to inform itself as it sees fit when it requires further evidence or certainty when assessing an application concerning a child. South Australians have had a long history of supporting reforms that expand justice into spaces where it does not yet shine. South Australians expect lawmakers like us to remedy wrongs where we can, and they expect us to stand up for the most vulnerable in our communities.

Often we have been too slow to keep social reform up to date with contemporary practice and social attitudes. Throughout the suite of reforms we are discussing this morning, I see an important commitment to make amends, a commitment that I am proud to say is shared and held by many of us in this place and also in the other place. If we want to be known as a progressive, socially advanced, creative and diverse community, we must not rest on our laurels of past achievement. We must honour our progressive past and continue to strive for equality and justice for our citizens and make our legislation the best legislation it can be in terms of current practice. I believe this bill before us does that work.

The Hon. Mr Lucas asked a question relating to the Hansard in the other place in relation to the contribution by the member for Schubert, where some discussions we had were paraphrased. I will just say at the outset that, whilst the gist of it was true, the member for Schubert did not go on to say why it was impossible or why there was no way of closing the loophole that was referred to. Indeed, I use the language of those opposing this bill in the other place: I think it was called the 'gay marriage loophole'. That is not my choice of words but that of others.

The reason for that, of course, is—and I will not table this letter because I think the Hon. Tammy Franks intends to do that later on in the debate—

The Hon. T.A. Franks: Go for it.

The Hon. I.K. HUNTER: Go for it? I seek leave then to table a letter from the Attorney-General, the Hon. Robert McClelland MP, to Mr Alex Greenwich, National Secretary of Australian Marriage Equality, dated 16 December 2008.

Leave granted.

The Hon. I.K. HUNTER: I will go to the second to last paragraph. The answer to the question, which I went on to explain to the member for Schubert and which I do not think he included in his contribution that is in Hansard, is this:

Your letter also raises the question of why marriages which are validly entered into in Australia continue to be valid after one of the parties to the marriage has undergone gender reassignment surgery. The decision of the Full Family Court in Re Kevin [2001] FamCA—

I think that probably means Family Court of Australia—

1074 establishes that the validity of a marriage is determined at the time it is solemnised. The definition in the Marriage Act does not mean that a marriage will be annulled or made invalid because one of the parties to it undergoes gender re-assignment surgery. The decision of Purvis DP in Abrams and the Minister for Foreign Affairs and Trade [2007] AATA 1816—

I guess that is the Administrative Appeals Tribunal of Australia—

is consistent with the decision in Re Kevin.

That is the reason that the so-called gay marriage loophole cannot be closed: because this state parliament does not have an ability to pass legislation that would override a decision of the full Family Court or, indeed, the Administrative Appeals Tribunal of Australia. Whether or not it is in fact a loophole is arguable, of course. I cannot imagine someone wishing, in this place anyway, to force a divorce on a couple simply because one member of that relationship decided, after a point in time when they had married, that they wished to change their gender. I do not believe anyone would really wish that on a married couple and that is why, in effect, the so-called loophole exists.

However, I go back to my original comments and say that, in passing this legislation, we will be doing a powerful world of good for those few people in our community who would use this legislation. Essentially, this legislation enables people to have a notation placed on their birth certificate that states they are the gender that they choose to be, with the appropriate safeguards of recording the original birth gender in the register for perpetuity, accessible to those people who have authority to access it. I commend the bill to the house.

Bill read a second time.

Sitting suspended from 12:50 to 14:17.

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