STATUTES AMENDMENT (GENDER IDENTITY AND EQUITY) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 10 February 2016.)

Ms CHAPMAN ( Bragg—Deputy Leader of the Opposition) (15:40): It is with pleasure that I rise to speak on the Statutes Amendment (Gender Identity and Equity) Bill 2016. I indicate that I will be the lead speaker for the opposition, although that would seem a little unusual, given that I confirm that the opposition does not have a joint party position on this paper, and indeed all members will be, as they are always on our side of the house, encouraged to make a contribution to the debate and vote according to their conscience.

The bill itself was introduced by the Premier on 10 February this year after laying a draft on the table on 1 December last year. Until then, this area of reform was commonly known as the LGBTIQ review/reform, and the government had made a commitment to look at our laws, both legislation and regulation, to ensure that there would be some review by the South Australian Law Reform Institute to consider and identify occasions when an individual or family were discriminated against on the grounds of sexual orientation, gender, gender identity or intersex status.

The South Australian Law Reform Institute has done that and is continuing to undertake further work in respect of this area of reform. The initial report, which was prepared in September last year, was titled 'Discrimination on the grounds of sexual orientation, gender, gender identity and intersex status in South Australian legislation'. The chair of that board, Professor Williams, has met with me and, obviously, the government and the Attorney, in respect of advancing reform pursuant to their recommendations.

The report of September 2015 identified about 40 acts or regulations in which discrimination had been identified, and this bill essentially incorporates the remedying of that. I will come in a moment to a substantial body of work that has been done by the institute and others in respect of other aspects of reform in this same arena.

LGBTIQ stands for 'lesbian, gay, bisexual, transgender, intersex and queer'. They are each descriptors which have been in common or uncommon usage. Some are words that now, like some other words in our language, attract a certain connotation, sometimes in a derogatory way. I always remember the word 'juvenile', which was frequently used as a descriptor, quite an appropriate descriptor, of the age of somebody in pre-adulthood, or in fact other animals in the kingdom, but because of its association with the criminal conduct of young people, it attracted a certain connotation, meaning someone who was juvenile was immediately perceived to be someone who was a bit of a ratbag at a young age. Words can colour or be coloured or stained, even, after common usage.

I understand, both from Professor Williams and from reading the report, that persons who are in these categories have given their blessing to the continued use of these descriptors that comprise the LGBTIQ group of identifications. My initial question when I was looking at this was: is the word 'queer' acceptable to those who wish to be identified as 'queer'? The answer to that question, I am advised, is yes. There are certain people in the community who would by preference wish to be called by that descriptor.

Others want to be more specific and hence will use lesbian, gay, bisexual, transgender or intersex. I am ready to admit that I did not at first understand exactly what someone who described themselves as intersex was, but I have since been given some information on that. I thought I was clear on transgender, but that has been made more clear. There are very helpful definitions and descriptors in the report that I have referred to.

I think it is fair to say that when someone is, in their eyes at least, neither male nor female, nor someone who wishes to be identified as man or woman in terms of gender identity or an equitable situation, they wish to be recognised and they wish to have that recognition in our legislation to the extent that they are not excluded. In essence, this bill proposes amendments to all of the laws that have some binary notion in their context. They describe a male or a female or, in respect of gender, a man or a woman, so we take those out and we have substitutes including 'a person', 'a party' or 'they', rather than he or she etc.

It is not unique; it is not a new approach. We have done this before in legislation and I think we can accommodate and support it. I will be supporting this bill for the very reason that it does not attract a new set of entitlements or obligations. What it does, though, is remove words that have the effect of excluding others—in this case minorities, as they may be, but they are people and they can be considered.

Instead of having 'he or she' or 'male or female', the person who might self identify as intersex or transgender or queer or wanted themselves to be described as bisexual, gay or lesbian—whatever they want themselves to be known as and present themselves to others as—are not excluded. They are not a nothing when it comes to looking at the legislation. I think that is reasonable and the provisions that will prevail as a result of this bill passing will ensure that those who are intersex or transgender will be recognised as a person.

The amendments also remove the interpretive language in legislation that has the potential to discriminate against a person based on their relationship status. Again, this is to ensure that we include those. We have we done this before. We did it back in 1960 when we changed the constitution in the Playford era to ensure that when the constitution referred to 'a person', it was a he or a she. We did that as a result of a Full Court decision of the Supreme Court when a person had challenged the election of Joyce Steele and Dr Jessie Cooper in 1959 as not being 'a person'.

The question was essentially: when is a woman not a person? 'When she wants to stand for parliament,' was the answer. The Full Court said, 'This is a bit too difficult for us. We think the parliament should deal with it.' So, after the election, successful for those two women, the constitution of South Australia was changed to ensure that we had a descriptor which was inclusive. It was to be absolutely abundantly clear, according to Mr Playford and the leader of the opposition at that time who was Don Dunstan, who both committed to ensuring that that legislation would be supported by their respective parties.

We then had a tranche of legislation to recognise those who are not living in a marriage in accordance with the rules of the federal Marriage Act but may be cohabitating as domestic partners, which is sometimes known as a de facto marriage, common law marriage and the like, and we have gone through our legislation, in the time I have been here, to again ensure that persons who may be cohabiting, either heterosexual or homosexual in that sense, can be recognised. We have removed situations where someone might be a partner of a deceased person and would otherwise have no entitlement or opportunity to be involved in the arrangements for the funeral or burial of the person they have loved. We have made sure that we have gone through our legislation to fix that.

In my view, this legislation does the same thing. We clearly now acknowledge and welcome those in the community who identify in a different manner, other than being a male or female. Certainly, they may have been born and identified on the birth certificate as having been identified medically as someone of a male or female gender but, over the age of 18 years, they may self-determine a status and descriptor that they are comfortable with. For whatever reason, that usually is consistent with their sexual orientation or, indeed, their emotional commitment, sometimes, to change into another gender.

I applaud the work of the institute to audit the laws that we have and to recognise the diverse ways in which a person may identify their gender or intersex status. The report also highlights a number of other areas of research which are currently underway, and they relate to consideration of the amendment of the Births, Deaths and Marriages Act to recognise sex and general reassignment laws. We have actually passed legislation in this house, and there is consideration to be given to recognising those subject to reassignment laws in our Births, Deaths and Marriages Act.

There is to be consideration of exemptions under the Equal Opportunity Act and areas of surrogacy which, of course, sometimes come to the fore in our media, usually when there is some tragic circumstance. I think the most recent was a Western Australian couple who provided for the surrogate birth of a child. The mother, living overseas, had two children. One suffered a disability and, at least from the media records, was abandoned, and the mother was left with this child to raise, with the other sibling being brought back to Australia.

When these things hit the headlines, they make us look at how we better deal with these circumstances—in this instance, where a person is asked to carry a child on behalf of others, with or without the donor egg. We need to sort out these issues, obviously, because, whilst paid surrogacy in a number of areas in Australia is illegal, we need to sort of consider this.

Obviously, where women might be in disadvantageous financial circumstances—living overseas and desperate for some financial support—they are vulnerable to being exploited, and we need to ensure that we are not perpetuating a situation which actually supports that. We also, as best we ethically can, need to have guidelines and rules to allow people who are not able to have children to have a child through surrogacy.

The law in relation to provocation is also an important area of reform that needs to be looked at, and there has been a Legislative Review Committee of inquiry. There has been a recent case to the High Court, a case called Lindsay, which at the moment is awaiting retrial in South Australia. It is a South Australian case in respect of the use of provocation as a defence to murder, and that is all still pending.

Then we have this question of what we do in relation to recognition of people who are cohabiting, who are not lawfully married and who have cohabited for less than three years—unless there is a child of the relationship, and where it is a heterosexual relationship that certainly can have occurred. However, at present there are a number of people who are cohabiting and whose status as a domestic partner is not recognised in any way until it crystallises upon the three years of cohabitation.

Certain responsibilities and entitlements flow at that point, but it is not recognised before. So, the question of whether we should have a relationships register is also an area of consideration by the institute. Certainly, Victoria has looked at that, and as I understand it is progressing law reform there which allows for the registration of couples where they would not otherwise be eligible to be recognised at law.

As I understand it, Victoria's proposed model is to make available to Victorian residents, if they were married overseas, for example, an opportunity to go on a register in Victoria, provided that marriage was in certain jurisdictions. In Victoria's case I think it is looking at the United States, the United Kingdom and one or two other jurisdictions.

Can I just say for members who might be at all interested in this area of reform, it will be interesting to have a look at, but at present we do not recognise in Australia an overseas marriage as a lawful union unless it is marriage in a circumstance which is similar to the rules that apply in Australia. So, in essence, if a 14-year-old girl marries a 25-year-old boy in Libya, and it may be lawful in the country of Libya and recognised in that jurisdiction, we would not recognise it because we do not allow people to marry at age 14.

So, it is not just a question of whether it is a man and a woman, and so on: they have got to comply with the fundamentals for us. We do not let brothers and sisters get married, and we do not let children marry between the ages of 16 and 18. Of course, they can have parental consent or a court order, but there are certain age limits, etc. We do not let people have more than one spouse. I do not know who would ever want more than one husband at any one time, frankly, but—

Mr Pederick: There are some countries in the commonwealth.

Ms CHAPMAN: —nevertheless—

Mr Pederick interjecting:

Ms CHAPMAN: That is a novel thought from the member for Hammond. Thank you. Polygamy is not something that we allow under our Marriage Act in Australia, and so if someone comes to Australia with three legitimate wives from their country of origin, then only the first lawful wife—a marriage to the first person—would be recognised as a lawful marriage in Australia, but the other two who may be other co-tenants or resident in the house with him or her we do not give that marital status.

And so one of the things that Victoria has done is to say, 'Well, look, if somebody goes to the United Kingdom and marries, then we will recognise that under a register.' In that instance, it could be a marriage between two parties of the same sex, and that can be recognised.

We will see how that pans out and how it develops, but some more work is being done by the institute on that. I understand we could have something as early as April this year in that area and, similarly, with surrogacy. In respect of the provocation law, of course, we are waiting for the Lindsay case to be retried before anyone is prepared to re-look at this question.

In relation to the laws relating to sexual reassignment and its registration in our births, deaths and marriages act, I understand a paper has now been completed and is available on the institute's website and, similarly, under our Equal Opportunity Act amendments there are further exceptions. An issues paper has been released and is available for people to make a contribution.

Some of these will be a challenge for members as to ultimately what recommendations are brought here to the parliament, and I think it is important that each of us looks carefully at them as to how they better advance and protect those in our community in a respectful manner and, certainly, that is the way I will approach it.

Can I say that in this area, though, the one thing that has very much disappointed me is that, on the same day as laying this on the table on 10 February, the Premier made a ministerial statement outlining the circumstances of Marco Bulmer-Rizzi's, in his words, 'mistreatment' by the state as a basis for highlighting the importance of the reforms that we are now considering. He introduces this bill but, separately, he gives a ministerial statement about this case.

Members might remember reading, over the summer break, about the circumstance in January when Mr Bulmer-Rizzi was visiting Adelaide from the United Kingdom with his husband David. Their marriage was a lawful marriage in the United Kingdom and, as we do not have same-sex marriage in Australia, on his death certificate (on which our births, deaths and marriages law requires that the deceased's marital status is recorded) his marital status was apparently to be recorded as 'never married'. We read in the paper, of course, how offensive, disturbing and distressing that was to Mr Rizzi, because he in every way understood himself to be the lawful husband of this person.

They were very sad circumstances and I do not wish to in any way diminish the importance of us trying to work through how we deal with those circumstances and how we can be respectful of someone in that situation without being offensive. One way may be that the Registrar of Births, Deaths and Marriages would have some discretion in not recording such information if the information was of distress to the partner in that situation. That is one option.

It seemed a situation, frankly, where, on the face of it, the Premier himself, the great white knight, came to the rescue in this case. If you were to read through what was presented by the Premier, he was the great saviour and acted to ensure that the recording on the marriage certificate was not 'never married' but ultimately something along the lines of 'marriage not recognised in this jurisdiction', or 'this state', or something of that nature. I cannot remember the exact words provided to me as to what had occurred, but I think it was probably recorded in a way to try to minimise the offence to the relevant party, and to also comply with the current law. A bit of tiptoeing had to be done around that to work it out.

I would certainly hope that the Premier was not involved in any direction to the Registrar of Births, Deaths and Marriages, because that would be an offence under the act. In any event, I think, on the face of it, we can accept that there was an attempt made by good men and true to make sure that there was some respectful recording completed.

My point is this: he makes this statement on the basis of the reform that he then introduces, and this bill has nothing to do with that. This bill has absolutely nothing to do with that. It may be, at some later date, that we look at reform which deals with addressing the births, deaths and marriages act, but it is not in this bill. I just find it a bit churlish at best for the Premier to come in and try to pretend that, in some way, he is actually making things better for the people who find themselves in the circumstances of the Rizzis.

Let me get back to the bill and what it is really about. In the summary that I have prepared, the areas of concern include allowing a person self-identifying as a man or woman to be nominated for a board. I must say I think that could cause a few little problems, but I have had a look at it and will ask some questions about that in committee.

Essentially, if someone is transgender or intersex and, for example, is identifying themselves as a woman although they had been born as a male, and there had not been a sex change at that point but they are seeking to be recognised as a female, it raises questions of eligibility to government boards and so on. I have questions as to whether they can change, or go back and forth, or take up a spot and those sorts of things. In any event, I think I understand the gist of where we are going, and so I am supportive of the principle of what is trying to be achieved.

Another area is to allow self-identity when searched as a prisoner or for a forensic procedure, and this is quite reasonable. I am just going to refer to a current case in Western Australia, which I suppose is a living, breathing contemporary example of what can happen when we do not have a system that allows for some flexibility in this area and for some accommodation of the recognition of someone's self-identity.

In Western Australia, as we speak, there is a person known legally as Clayton James Palmer, aged 38, who is currently charged with grievous bodily harm; in particular, for having unprotected sex with another person last year. He has been charged and is currently being held at a male prison. The complication comes as this person—legally 'he' at this point—is a sex worker who advertises and presents in the advertising material as Sienna Fox, and provides services. There is an alleged victim of HIV, which is why this person has been charged.

Here is the complication: Mr Palmer, or Ms Fox—let us recognise the fact that this person calls herself Sienna Fox and wants to be known as a female, and for the purpose of this exercise I will refer to her as such—has been in court in the last 24 hours, applied for bail, was rejected, and was sent back to the male prison. Ms Fox asked that she be accommodated in the female prison; however, that has been rejected.

How do we deal with that situation? Is it appropriate that, because somebody self-identifies as being female, lives their life and their working life as a female, and presents to the public as a female, they should be able to say, 'I want access to the female prison'? If that person was no longer genetically male, if I can describe it that way, then is there any harm in allowing her to be in a women's prison? Probably not.

However, if she is still genetically male and is capable of presenting as a male, would it be appropriate that she is allowed in a women's prison? Would that be difficult for other women prisoners, especially if they were in a shared bathing situation, for example? These are the sorts of things we have to really think about.

It is one thing to say, 'Let us give recognition to somebody in accordance with how they, of sound mind and over the age of 18 years, want to be known and identify with,' but we have to consider the complications of living in the real world. We have to address that issue. At least this bill says that, if you self-identify, you are entitled to have access to searches by a person of the same gender or, similarly, forensic procedures by someone of the same gender as your self-identified gender, so that covers that.

The third area relates to abortions, that is, terminations of children in utero. At present, most of you would know that it is illegal to either abort yourself post a certain term or, secondly, to assist in an abortion. In fact, there is a maximum penalty of life imprisonment. The law currently, under our Criminal Law Consolidation Act, covers a person who is biologically a woman, but does not deal with someone who self-identifies as a male.

What do we do with people who are genetically female who of course are capable of carrying a baby, but who self-identify as a man? They are still a person who is capable of having a baby. As unusual as that might sound, that has occurred, where a person has had a desire to present as a male, still had the genetic capacity to actually carry a child, and subsequently gave birth to a child.

I am not raising this in any way in terms of dealing with an abortion matter, but I make the point that it can happen. We will therefore amend this law to recognise a person who is biologically a woman but who self-identifies as a man.

It may seem strange when you read the amendment, which changes the word from 'woman' to 'someone who is pregnant'. You might read it and think, 'Well, who else could be pregnant other than a woman? That would be a bit unusual', but that is the circumstance, and it can occur. So that is the explanation. Similarly, we have changed provisions to cover a medical termination of a pregnancy, from 'woman' to 'patient'.

We have gone from language of 'chosen gender' to 'gender identity'. Some of that is obviously to become more contemporary. I do not think the bill is entirely consistent. I think we do need to look at some way of trying to keep some consistency here. At some points in the bill we change the wording from 'woman' to 'patient', 'person' or 'someone who is pregnant', which I think adds a bit more confusion.

I would rather us look at a situation where we as much as possible identify whether we are dealing with the removal of 'man' or 'woman' or 'male' or 'female', that we identify it as a 'person' rather than using words such as 'patient' or someone who is pregnant. It just seems to be absurd. I think we can tidy that up a bit.

If the Attorney has a little look at that he might be able to work on it. I think the member for Reynell has the carriage of this bill, and she might have a look at that at some stage during the debate on this matter. It is only a small point. I am not usually a big grammar Nazi, but I just make that point. We are trying to make this more simple for the average person out there to implement, enforce, etc., so let's try to make their job as easy as possible.

It is fair to say that there has been comprehensive consultation on what is being proposed here. It is consistent what we have been doing, in my lifetime, bringing to contemporary language our laws, and I will support it. I will look as carefully as I can at the proposals as they come one by one from the SA Law Reform Institute. I thank them for their work to date, and I expect there will be continued work.

I wish to acknowledge and thank, for advice on this matter and prompt attention to information sought, Mr David Pearson from the Premier's office and Alison Lloyd-Wright from the Department of Premier and Cabinet. She was ably assisted by Lachlan Cibich in providing advice and also Ms Newman from the member for Reynell's office. I thank them for their advice in progressing this bill.

I look forward to hearing other people's contribution on the debate. I should also thank the government for giving advice to provide a briefing on this matter yesterday, which I understand took place for all members to be available. I support the bill.