Legislative Council: Private Members Business
April 13, 2016
LEGISLATIVE REVIEW COMMITTEE: SEXUAL REASSIGNMENT REPEAL BILL
The Hon. G.A. KANDELAARS (15:58): I move:
That the report of the committee, into the Sexual Reassignment Repeat Bill 2014, be noted.
The Sexual Reassignment Act commenced operation on 15 November 1988 and has since remained substantially unamended. The Hon. Mr Sumner, then attorney-general, noted in this place during the second reading of the Sexual Reassignment Bill 1987 that it was the government's intention to regulate the undertaking of sexual reassignment procedures and to provide a mechanism allowing for the legal recognition of the reassignment of a person's sex.
Prior to the enactment of the Sexual Reassignment Act, although sexual reassignment procedures were performed in South Australia, there was no process enabling the amendment of birth certificates to recognise the reassignment of sex. The Sexual Reassignment Act was the first legislation of its type in Australia regulating the approval of medical practitioners who may carry out reassignment procedures, the approval of hospitals in which reassignment procedures may be carried out, and the process and required criteria for a person to change the sex recorded on his or her birth certificate.
On 15 October 2014, the Sexual Reassignment Repeal Bill 2014 was introduced into the Legislative Council. The bill would repeal the Sexual Reassignment Act. The Hon. Ms Tammy Franks noted in this place, during the second reading of the 2014 bill, that the Sexual Reassignment Act had not been reviewed since its commencement and, in her view, did not serve either 'the transgender community, the broader community, or the medical health professionals of this state'. Although well intentioned, the Sexual Reassignment Act had, in her words, 'never worked'.
On 3 December 2014, the bill was withdrawn by the Legislative Council and referred to the Legislative Review Committee for inquiry and report. The committee wrote to a number of organisations, and individuals, inviting submissions to the inquiry. Eighteen submissions to the inquiry were received, and seven public hearings were held.
The majority of the submissions raised concerns with respect to the need for ministerial approval of medical practitioners who may carry out sexual reassignment procedures under part 2 of the Sexual Reassignment Act. A number of submissions also raised concerns regarding the need for ministerial approval of hospitals which may allow the use of their facilities for the purpose of carrying out reassignment procedures, also required under part 2 of the Sexual Reassignment Act.
No public hospitals are approved to allow the performance of reassignment procedures upon adults. It was suggested that private hospitals are reluctant to seek approval. This was considered to reduce access to medical treatment for the gender-diverse community.
The need for the Magistrates Court to approve applications for the recognition of change of sex and the issue of recognition certificates under part 3 of the Sexual Reassignment Act was criticised by many of the submissions, and the committee accepted that magistrates should not be required. It was suggested that submitting applications direct to the Births, Deaths and Marriages registration office would be a suitable option for implementation in South Australia, and the committee agreed with this approach.
The submissions and evidence also criticised the need for the prior carrying out of reassignment procedures before a person satisfied the criteria allowing for the amendment of the register of births to occur. The committee accepted these criticisms.
The committee also considered the need for consistency between the process to amend the register for births and the requirements used to amend other government records, including information set out on passports at a federal level or other documents at a state level, which were often used as identity documents. Without consistency, it was noted that people can be left in the possession of a passport or other official government documents which record a person's sex as being different to the sex recorded on a person's birth certificate. Consistency was considered by the committee to be the best option.
The introduction of a 'non-specific' sex, or what is often referred to as 'non-binary' sex, was also given consideration. The evidence suggesting a need for such a third category of sex was accepted by the committee. The committee contemplated a process allowing for self-determination of legally recognised sex, without the need for medical diagnosis or treatment. For reasons of providing some level of protection and possible support to members of the community seeking to utilise any new regime, a requirement to produce medical evidence in support of an application was favoured. The committee considered the need to balance this requirement with the need for security and the potential concerns which may arise should a person suffering from a compromised state of mental health seek to proceed with a change of legally recognised sex.
Significant health issues affecting the gender diverse community were raised in the evidence and submissions. The committee was concerned by the matters raised. The establishment of a multidisciplinary clinic was suggested, and the committee accepted that this option should be considered. The attention of the committee was drawn to the Yogyakarta principles, a set of principles on the application of international human rights regarding sexual orientation and gender identity. Although not legally binding principles, the committee resolved that it would, where practical, take account of these principles for the purpose of making its recommendations.
The committee considered the potential for a married person to invalidate a marriage by way of changing his or her legally recognised sex. The committee took the view that marriage should not be an impediment to obtaining a change of the person's legally recognised sex, taking into account individual rights and the potential mental health issues; however, noting that South Australian law must also be reconciled with commonwealth law. For those who are interested, further information on this aspect is at appendix 10 of the report.
The carrying out of reassignment procedures on children or adults lacking capacity to consent to medical treatment was also considered by the committee. Although recognising the vulnerability of these members of the community, the committee was of the view that adequate protections are currently in place, particularly where irreversible medical treatment is proposed.
The committee acknowledges the issues faced by prisoners who are unable to access private medical care, and was of the view that prisoners would benefit from the provision of a specialised publicly-funded medical service to the broader gender diverse community. The potential for unlawful activities was also brought to the attention of the committee. The committee considered the need for providing notification to other agencies upon the completion of processing of an application relevant to any new regime, for example, notifying an agency of a change of a person's legally recognised sex.
The Births, Deaths and Marriages Registration Office is not currently required to notify agencies of a change of a person's legally recognised sex. The committee did not support the introduction of a notification in respect of a person changing sex. Privacy was a paramount concern. The status of laws and recent law reform in other jurisdictions was also considered. In 2014 the Australian Capital Territory introduced the most recent Australian reforms, removing the need for reassignment procedures to have been carried out before a person's change of sex will be recognised by the Australian Capital Territory register of births, along with the need for applicants to be unmarried.
The committee also noted that significant reforms have occurred in overseas jurisdictions in recent years. The committee expresses its hope that the findings of the recommendations set out in the report will contribute to the commencement of a process that addresses many of the concerns put to the committee during the course of its inquiry. The committee would also like to thank the previous committee secretary, Ms Jennifer Fitzgerald, the current committee secretary, Mr Matt Balfour, and the committee's research officer, Ben Cranwell, for the helpful support provided to the committee throughout our inquiry.
In conclusion, I would also like to thank other members of the committee: the Hon. John Darley; the Hon. Andrew McLachlan; the member for Heysen, Isobel Redmond; the member for Little Para, Lee Odenwalder; and the member for Elder, Annabel Digance, for their contribution to this inquiry. I commend the report to the council.
Debate adjourned on motion of Hon. A.L. McLachlan.