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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2016-12-06 Daily Xml
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Bills

Births, Deaths and Marriages Registration (Gender Identity) Amendment Bill

Committee Stage

In committee.

The Hon. I.K. HUNTER: Whilst I am waiting for my advisers, I might put on the record some answers to questions asked by the Hon. Mr Stephens in his second reading speech. In relation to information being retained by the registrar, the Hon. Mr Stephens is correct. Original information on a birth certificate will be retained by the registrar and made available by application from the individual it relates to, a child of the individual it relates to or appropriate persons or entities that may be made by regulation.

In relation to any specified time period for treatment to take place, a medical practitioner is best placed to determine the level of treatment for any individual and it is not intended to have this time period legislated. I can advise the council that, under the proposed legislation, children would need to have a magistrate determine any application for gender change in conjunction with advice from a medical professional. Any concern that the member has in relation to those persons under the age of 18 hopefully can by allayed by the knowledge that a medical professional and a magistrate would need to determine an application to change gender on the register.

It is important to remind honourable members that this legislation does not go to a sex change operation, for example, or hormonal treatment itself; that is a medical procedure. What we are dealing with here today is the ability to change details on one's birth certificate; that is essentially what we are doing here. In addition, as I highlighted earlier, there are provisions in the bill and the Births, Deaths and Marriages Registration Act that protect against and penalise false and misleading declarations that are made in relation to any application under the bill.

This bill in no way seeks to undermine the commonwealth Marriage Act, but simply seeks to allow an individual to have their recognised gender on the legal documents they need for their everyday lives. I think I gave a more comprehensive answer on that issue in my second reading closing speech. The last concern the member raised in his speech was the regulations that are relating to the bill. Gender identities, I am advised, will be reflected in regulations and they will follow broad consultation, which will include review by the Legislative Review Committee so that there will be some oversight of those regulatory categories.

Clause 1.

The Hon. D.G.E. HOOD: I have a few questions on clause 1—not several but a few. The minister did allude briefly to my first question in his summing up, but I am looking for some more information, if possible. I understand the regulations will cover this, but can the minister provide at least a preliminary list of what genders will be declared and how many there are? What can he tell us about them?

The Hon. I.K. HUNTER: My advice is—and this is what happens interstate, I think—that there are obviously two categories, male and female, and there is also another category, the non-binary status, which attempts to take into consideration the category for people who are of intersex status. My understanding is that in Victoria at least—I am not sure about other jurisdictions—rather than have that category determined, there is the ability for the applicant to state how they prefer to be known, either 'unknown', 'indeterminate' or 'intersex'. We will consult with the community, the relevant medical professionals and those people impacted and affected by this legislation before we determine what that will be in the regulations.

The Hon. D.G.E. HOOD: Does that mean that there is potentially an unlimited number, or is there some sense of what would be reasonable?

The Hon. I.K. HUNTER: My advice is that the list, whatever amount of categories are on it, would have to be appropriate to be administered by the registrar. Clearly, if the list was too long then it would make it impossible for the registrar to administer it. Whilst I can understand that you want to have a list presented to you now, that would be pre-empting the consultation process that we have indicated we will be undertaking. In that case, all I can say is that it will be male and female, obviously, and then some other non-binary category to take into account people of an intersex status. We will go out and talk to the professionals and people of that status to find out what their preferred category name would be.

The Hon. S.G. WADE: I understand from the minister's response that he anticipates there will be three categories.

The Hon. I.K. HUNTER: That would be my expectation. Arising from our consultations, it might end up being four; I could not say.

The Hon. D.G.E. HOOD: The minister mentioned Victoria as another jurisdiction. Are there any other jurisdictions in Australia that have similar legislation?

The Hon. I.K. HUNTER: My advice is that the ACT has a similar regulatory regime that we are moving to adopt through this process. I think we intimated earlier that Victoria is moving to a much more open regulatory regime than what we are proposing in this legislation.

The Hon. D.G.E. HOOD: Moving to a new group of questions, are there any specific provisions in the bill—you did touch on this in your contribution earlier, but for the sake of clarity—which would restrict, limit or prevent an individual from changing their gender post marriage? In other words, they have married someone, they were previously regarded as a woman, they change their gender to a man on their birth certificate, and they are married to a man. Is there anything to prevent that sort of thing from happening?

The Hon. I.K. HUNTER: My advice is that we are doing the opposite to what the honourable member might have suggested. We are not requiring people to divorce. Should they be in a marriage—a male and female currently, of course—and one of them transitions to another gender, we would not require them, through the action of this legislation, to divorce from that marriage they had entered into at some other time. In the second reading I think I read into the record some correspondence from the Attorney-General which advised of a higher commonwealth court, I think it was the Family Court, which had ruled that was unnecessary.

The Hon. D.G.E. HOOD: I thank the minister for his answer. To clarify, we are certainly not suggesting anyone should get divorced under any circumstances really. I would like to explore that a little more. If you have a situation where, for example, a couple is in a lesbian relationship and have previously been known as women, then one of them decides to declare herself a male, is that couple able to marry under this legislation?

The Hon. I.K. HUNTER: I will unpack that question a little bit. The honourable member asked about two women who were in a relationship and one declared herself to be a man. I do not think you can find that in the operation of this act; they would have to go through the process that is laid out in this bill. They would need to have the appropriate medical treatment, whatever that might be, as defined in this proposed legislation. They could not just one day declare that they were a man. I suspect they would need to have actually transitioned and have met the requirements under the legislation.

If, then, one of those persons was legally recognised as a man, I imagine they would probably satisfy the eligibility requirements of the federal Marriage Act. However, it is not a quick or easy decision, and I do not think it would be one that too many people would be taking, to just go off and satisfy themselves about the Marriage Act. I think it would be far simpler to go over to New Zealand and get married.

The Hon. D.G.E. HOOD: I have a couple more questions on clause 1. Is there potential for gender-specific clubs to somehow be affected by this legislation? For instance, if there is a women's bowling club, tennis club or whatever it might be, and someone who is perhaps physically a man but who regards themself as a woman, who goes through the process and gets a legal declaration as a woman, under these provisions will they then be able to participate in an otherwise all-women's club of some form?

The Hon. I.K. HUNTER: I get the gist of the honourable member's question. My answer would be that nothing in the operation of this legislation would cause that. However, let's step back. People already transition, people already change their gender, and any impact in terms of what the honourable member was positing would, I imagine, be impacted by the Equal Opportunity Act, not this piece of legislation.

Clause passed.

Clauses 2 to 5 passed.

Clause 6.

The Hon. D.G.E. HOOD: I move:

Amendment No 1 [Hood–1]—

Page 4 lines 21 to 40 and page 5 lines 1 to 12 [clause 6, inserted section 29J]—Delete inserted section 29J

This is a fairly simple amendment; it may look a little complicated on the paper there, but it is fairly simple. Essentially, what it does is change the age of eligibility to 18. Under this circumstance, it would be required that the person, to change their gender, was an adult. I understand at the moment it is 16, if I am not mistaken. Or there is no specific age; is that right? Anyway, this amendment will make it 18.

I understand it is subject to a magistrate's consideration at the moment, regardless of their age. There are a number of reasons for that. We impose the age of 18 on people for a number of reasons. Obviously, they can vote at 18, legally drink alcohol and all those sorts of things. It is the age at which people are considered adults in our society.

Obviously, to change gender is a very serious decision for anyone to make, which may have very long-term consequences. There is a large body of data that supports the fact that—and I suspect even the minister might concede—whilst there is a lot of gender confusion amongst the young, often a good number of those individuals actually decide to go with their birth gender, if you like, longer term—not all, of course, but certainly a good number.

There are a number of studies that I could quote, but there is one study called the 'Psychosexual outcome of gender-dysphoric children' by Madeleine Wallien PhD and Peggy Cohen-Kettenis PhD. The objective of their study was to establish the psychosexual outcome of gender-dysphoric children at the age of 16 or older and to examine childhood characteristics related to psychosexual outcome. I am happy to make this available to any members who might want to look at it.

The study basically studied 77 children under 18 who had been referred in childhood to their clinic, which looks at these issues, because of gender dysphoria. There were 59 boys and 18 girls, with quite a young mean age of only 8.4 years, but the range in age was between five and 12. What they did was they measured the cross-gender identification and discomfort with their own sex and gender roles, and they have a very sophisticated group of tools to do that. They then followed up on those children a number of years later when they were adults. The age at which they followed them up was up to 28 years of age, so quite a bit older. Of course, this was a self-selecting study, so the people had to agree to participate.

What they found was that 30 per cent of them did not agree to participate, so you need to exclude those people. They just did not want to be involved. They found that 27 per cent of the remaining people were still gender dysphoric when they were later interviewed, up to the age of 28 but as young as 16 or 17. However, 43 per cent were no longer gender dysphoric, that is, they decided that they were their original birth sex. In fact, in that group, all of the girls, interestingly—I do not know whether or not that is just a coincidence in this study—and half of the boys actually identified themselves at that later stage, that second time they were interviewed and questioned, as having heterosexual orientation, that is, being what we might call straight, for example.

People generally agree that this is an area in which an increasing amount of work has been done and, as far as I am aware anyway, all of those studies have shown at least a significant minority, if not a majority, of gender-dysphoric children later in life decide that they are, and will act as and live out the life of, their original birth gender.

The purpose of my amendment is to say that these are significant decisions for children to make. I know they do not make them on their own, but they are significant decisions, nonetheless, and a little bit of time would not go astray, thus making it 18 years before this decision could be made, when, of course, they are adults and are free to make any decision they wish.

I indicate that a similar amendment was moved in the House of Assembly by the member for Schubert, and it was supported by 19 of the lower house members. It was defeated, in fairness, opposed by 26 members in the House of Assembly.

The study that I referred to was published in the Journal of the American Academy of Child & Adolescent Psychiatry. I will read a little bit of the conclusion because that is the point of it. It states, 'Most children with gender dysphoria will not remain gender dysphoric after puberty.' That is the conclusion of expert people. There are other studies I could quote, of course, but there is one more that I would like to mention that was published in the Diagnostic and Statistical Manual, the fifth edition. It states:

…as many as 98 per cent—

that is the highest amount—

of gender-confused boys and 88 per cent of gender-confused girls eventually accept their biological sex after naturally passing through puberty.

That is their finding. I will leave it at that.

The Hon. J.S.L. DAWKINS: First, I have a question for the minister and then, at an appropriate stage, I can indicate my position on the Hon. Mr Hood's amendment. Initially, I would like to thank the minister for his response to a number of the questions that I put on the record in the second reading stage. The minister well understands the experience I have had regarding delays in the development of regulations. Which minister will be responsible for the consultation on the development of the regulations, and when would it be reasonably expected that those regulations would be gazetted?

The Hon. I.K. HUNTER: My understanding is that this legislation was developed in the Premier's agency (DPC) and the development of regulations will probably stay there as well. My understanding is also that we would want the regulations done as soon as possible. We want to get the appropriate consultation done and then make the regulations.

Whilst I am on my feet, in relation to the Hon. Mr Hood's amendment, can I say that this is quite alarming. I will say at the outset that I do not think the amendment does what the Hon. Mr Hood has said it does. The bill has already changed the age from 16 to 18. That is already in the legislation, you do not need an amendment to do that. The original bill that was first defeated in the lower house had the age of 16; we made that amendment and changed it to 18 to ease its passage through the lower house.

The age in the bill before us is 18. What the Hon. Mr Hood is suggesting in his amendment is to repeal, completely, sections 29J and 29P, and that takes away an existing right. Because this legislation is also repealing the Sexual Reassignment Act, what you are doing is actually removing from this legislation the existing right that children have now. Taking away sections 29J and 29P is a massive imposition on rights that already exist under legislation in this state. We need to think long and hard before we talk about supporting your amendments. I am not sure, but that is probably why it was defeated in the lower house, because it is actually taking away an existing right of children in transition right now.

The Hon. R.I. Lucas: The right to do what at the moment?

The Hon. I.K. HUNTER: Transition.

The Hon. J.S.L. DAWKINS: I stated in my second reading contribution that I would not support provisions within this bill that allowed for children carte blanche to apply to a court to have their registered sex or gender identity altered. I am still of this view and believe that the clause, as it stands in the bill, is too wide. However, under the current Sexual Reassignment Act 1988 minors already have the ability to apply to a court to have their gender changed after undergoing clinical treatment.

While I imagine this is a rarely used right, it currently exists and I can contemplate a limited set of circumstances where such an ability is necessary, such as a child being born with sets of both male and female genitalia and was registered by a doctor as one gender at birth but in hindsight, perhaps years later, that determination of gender may have been incorrect. Therefore, while I appreciate what the Hon. Mr Hood is trying to achieve with his amendments, namely to protect children within this bill, I believe his amendments go too far and I will not support them.

Essentially, if they are passed they will remove the right of anybody under the age of 18 for any reason to access the ability to change their sex or gender identity. However, I want to reiterate that I believe that the provisions of this clause should be narrowed to allow for changes in a minor's gender only in such scenarios as I have indicated, not as widely as the bill intended. I will oppose the Hon. Mr Hood's amendments, but I also oppose the clause.

The Hon. I.K. HUNTER: I just want to correct what I said in cross-chamber discussion with the Hon. Mr Lucas where I used the word 'transition'. I should have said 'gender change'. So, the right that currently exists is to go to a magistrate and have that legal change made.

The Hon. D.G.E. HOOD: Can I just clarify with the minister the change he referred to being made in the House of Assembly? Where is that in the bill, please? Is it 29I?

The Hon. I.K. HUNTER: I am advised that, in the original bill at 29I(1), the age was 16 years or over. It has now been changed to 18 years.

The Hon. D.G.E. HOOD: For clarity then, how does that impact on the other issue? Is it because the bill is not retrospective that it does not impact on the other issue he is mentioning with respect to current capacity to change one's gender at a younger age?

The Hon. I.K. HUNTER: The bill provides a process for adults and also for children under the age of 18, as currently written. As I understand it, the Hon. Mr Hood's amendment will remove those aspects that relate to children, currently in the bill, under 18, which means there will be no provision whatsoever for children under 18 to go to a magistrate and seek to have their gender changed on the birth certificate.

The Hon. R.I. LUCAS: I must admit I am thoroughly confused at the moment in relation to this particular provision. I understand the point the Hon. Mr Dawkins has made. If I interpret him correctly, I think the Hon. Mr Dawkins was prepared to support the old provisions, but this bill now extends it wider and he is not supporting that.

If I can just clarify the existing right under the old bill—the argument that the minister was talking about—as I understood it, a 16 to 18 year old could go to court and argue a case, and the treatment would have to be what the House of Assembly members were referring to as 'invasive treatment'. It was not simply counselling by a medical professional: it was medical treatment of an invasive form—either surgical treatment, hormonal treatment or something like that. If my understanding of that is correct, is the minister saying that this amendment will now remove that entitlement? That is the first question.

I have a second and related question. As the bill is before us now, before the amendment from the Hon. Mr Hood, the minister says that 18 is still there. I am assuming 18 is still there, however, to allow a 16 to 18 year old to go to court and argue before a magistrate to do what they did before—that is, if they had had invasive surgical or hormonal treatment—but does it also extend it to someone undertaking a minimum period of counselling with a medical professional at the age of 16 and the medical professional saying, 'I agree that you now identify as a different gender'? Is the 16 year old able to go to the Magistrates Court and now argue, 'I have done my X hours of counselling. I now have an agreement from a medical professional that I should identify as a different gender, and I want you, the magistrate, to agree to that change'?

The Hon. I.K. HUNTER: Let me pick my way through that. The Sexual Reassignment Act 1988, which is being repealed by this bill, currently has provisions to allow a child—someone under 18—to go through a process of applying to a magistrate to have their birth certificate changed to reflect the gender they want to be. This bill will repeal that act, so we need to have provisions in this act that allow someone under 18 to do exactly the same thing. Under 29J, you will see at subclauses (1) through to (7) the sorts of things that a court may, on application by a person, take into consideration and grant for approval for the purposes of subsection (2)(b) if the court is satisfied that it is in the best interests of the child that the approval be granted:

(5) In determining whether or not to grant an approval, the Court must take into account—

(a) whether the child understands the meaning and implications of the making of an application to the Registrar; and

(b) whether the child has the capacity to consent to the application and, if so, the child's position in relation to the making of the application; and

(c) whether the child has undertaken a sufficient amount of appropriate clinical treatment in relation to the child's sex or gender identity—

which may well be invasive or counselling under this bill, and—

(d) whether a designated certificate or a prescribed notification has been provided.

The Hon. Mr Lucas is correct in his assumption: there is an existing right to a child under 18 in the Sexual Reassignment Act 1988 which, on the passage of the Hon. Mr Hood's amendment, would be wiped from this legislation.

The Hon. R.I. LUCAS: This bill extends the old sexual reassignment right to counsel.

The Hon. I.K. HUNTER: Yes.

The Hon. S.G. WADE: I am happy to confess that I, too, like the Hon. Rob Lucas, might be experiencing some confusion. In relation to new subsection (5)(c), which the minister has just referred to, namely, 'whether the child has undertaken a sufficient amount of appropriate clinical treatment in relation to the child's sex or gender identity', my understanding is that section 6 of the Consent to Medical Treatment and Palliative Care Act provides:

A person of or over 16 years of age may make decisions about his or her own medical treatment as validly and effectively as an adult.

Is there a potential implication in the Hon. Mr Hood's amendment that between the ages of 16 and 18 a person can consent to quite invasive medical treatment to express their identity, and be allowed to do it completely in medicine, but not allowed to do it at law?

The Hon. I.K. HUNTER: My advice is that the Hon. Mr Wade is quite correct. If the Hon. Mr Hood's amendments are supported, that would be the case. They could transition, have the medical treatment, but not at law be able to get their gender changed.

The Hon. S.G. WADE: My view on that is that if we accept the competency of a person to make quite dramatic changes in the medical context, why would we think that they had less capacity to change their documentation?

The Hon. D.G.E. HOOD: I agree. It certainly was not my intention for that to be the case and, if that is the outcome of the amendment, I am inclined to withdraw it. I would like to have some time to consult, if I could. It certainly was not my intention, but if I could have a few minutes to consult with parliamentary counsel, and the minister is happy.

The Hon. R.I. LUCAS: To me, the issue the Hon. Mr Dawkins has raised and these subsequent questions is that there may well be a position between the position the Hon. Mr Hood has moved and the position of the bill; that is, there can be a position which protects an existing right or entitlement, which was the old law.

As I understand it, the minister is saying that the old law, as it exists at the moment, is that you can go to a court and argue in the circumstances where you have utilised invasive treatment—that is, hormonal treatment or surgical treatment, or whatever else it might happen to be—but that you do not open it up to the issue of 'merely', my word, going along to a medical professional and having a minimum period of counselling and, at the end of that, having the medical professional saying, 'I agree with you: you now identify as a different gender', and you then have that entitlement.

The current law distinguishes between that, and this bill is seeking to change that. It is extending the entitlement beyond an invasive procedure, such as surgery or hormonal treatment, to say, 'You don't have to do that. You can go down the path of having a minimum period of counselling', and that could be sufficient in certain circumstances to change your identity.

There appears to be a position in between the position currently described by the Hon. Mr Hood's amendment as it is now being teased out. The Hon. Mr Hood is saying that that was not his intention, but it is possible to have a middle ground position, and that would require potentially redrafting an amendment by parliamentary counsel in terms of meeting a protection of an existing entitlement, if you want to put it that way, but not extending it beyond that for persons under the age of 18.

I note another point in relation to this. I have been talking about 16 to 18 year olds, but it is not really 16 to 18: it is any child under the age of 18, is it not? The consent bill the Hon. Mr Wade mentioned talks about 16 to 18, but this bill is talking about any child under the age of 18. So, I guess I was wrong in my impression and what I said, that it is only talking about 16 to 18 year olds. It could be any child, and they will have to meet these criteria that have been outlined, or the parents end up speaking on their behalf in certain circumstances, but we are not talking about just 16 to 18 year olds. We could be talking about children younger than the age of 16. All of us would be aware of the early onset of puberty with young girls and young boys these days. These issues may or may not become more starkly apparent much earlier than they might have decades ago.

The Hon. D.G.E. HOOD: I thank the chamber for its indulgence. I do not think I have ever done that before and it is not my intention to make a habit of it. For the record, I state clearly that it has never been my intention to create a situation that makes things more difficult for somebody who was born—I think 'indeterminate' is the language: it is not quite clear what sex they are or what gender they are. I acknowledge that these things happen and it is tragic.

It has never been my intention to make it more difficult for those individuals but, because this bill will actually repeal the Sexual Reassignment Act, there is that potential. That said, I believe it could be fixed in subsequent legislation, so it is probably not absolute in the sense that it determines the issue forever. That was never my intention; I simply wanted to move the age to 18. I am told that to create an amendment to that effect would take at least a couple of days. We do not have a couple of days. We are sitting tomorrow, I understand, but maybe not Thursday. That is yet to be determined.

The Hon. S.G. Wade: We're coming back next year.

The Hon. D.G.E. HOOD: And we are coming back next year, that is right. On that basis, I withdraw this amendment.

Leave granted; amendment withdrawn.

The Hon. R.I. LUCAS: This highlights a potentially appalling practice for this chamber. I make no criticism of the Hon. Mr Hood and I make no criticism of parliamentary counsel. An issue has been identified by a number of members, including the Hon. Mr Dawkins and the Hon. Mr Hood, and I have struggled to keep up with it. The Hon. Mr Wade has thrown a little bit of light on the subject as well. It appeared that there was some position, in between the drafting of the amendment that the Hon. Mr Hood had drafted and the position that is outlined in the bill, that a number of members, the Hon. Mr Hood and myself included, would have been prepared to consider.

As I said, it is no criticism of parliamentary counsel. They say it is going to take them two days to draft an appropriate amendment for the chamber to consider. On that basis, this chamber and this committee may well say it is all too hard and just roll over and vote on it at the moment. As a number of us have highlighted with this package of bills—and we do not know whether the next amendment will get up or not; I have no idea—if the bill is amended, then it requires the House of Assembly to agree to it in February, anyway.

If there is an issue here that deserves to be treated appropriately, that is, the will of the committee and the will of the parliament are tested by an alternative amendment along the lines of a compromise on the Hon. Mr Hood's position on what is in the current bill, then my view is that should be the course of action that we should adopt. There are two alternatives. My view is we have been asked to sit this week as an optional sitting week, and we have agreed. The optional sitting week is Tuesday, Wednesday and Thursday. It might not be the government's wish to sit Thursday, but it is entirely a decision for the chamber to take as to whether or not we actually do what we are paid to do.

If it is an optional sitting week and we are here to sit, we certainly have plenty of government bills other than these four to do. We could potentially do it on Thursday, if it takes two days for parliamentary counsel to draft it, or, as someone interjected, this particular issue could be left to be determined in the first week of February when we come back. I think either of those courses are preferable to shrugging our shoulders on the basis that the government says they do not want to be here Thursday. Parliamentary counsel does not have time to draft an amendment, so let us just shrug our shoulders, grin and bear it, and not look for what the best alternative amendment might be.

The Hon. I.K. HUNTER: I have an alternative view, obviously. It is not clear to me at all what in fact we are arguing about now because, as I pointed out in our earlier discussion, the current age is 18 years. It was amended with the original bill that was brought back into the lower house, and as I understood it that is what the Hon. Mr Hood wanted to achieve. It is here now, at 29I and 29J. Eighteen years is the age of operation for someone being an adult, and someone under the age of 18 years has to go through this process of applying to a magistrate.

Clause passed.

Schedule 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) (16:03): I move:

That this bill be now read a third time.

The council divided on the third reading:

Ayes 10

Noes 7

Majority 3

AYES
Darley, J.A. Franks, T.A. Gazzola, J.M.
Hunter, I.K. (teller) Lensink, J.M.A. Maher, K.J.
Malinauskas, P. Parnell, M.C. Vincent, K.L.
Wade, S.G.
NOES
Brokenshire, R.L. Dawkins, J.S.L. (teller) Hood, D.G.E.
Lee, J.S. Lucas, R.I. McLachlan, A.L.
Ngo, T.T.
PAIRS
Gago, G.E. Stephens, T.J. Kandelaars, G.A.
Ridgway, D.W.

Third reading thus carried; bill passed.

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