Sexual Reassignment Repeal Bill

Introduction and First Reading

The Hon. T.A. FRANKS ( 16:45 ): Obtained leave and introduced a bill for an act to repeal the Sexual Reassignment Act 1988. Read a first time.

Second Reading

The Hon. T.A. FRANKS ( 16:46 ): I move:

That this bill be now read a second time.

I am pleased to present this bill to repeal the Sexual Reassignment Act 1988 to this council today, and I do so not to see this go straight to a vote in this council chamber but with the purpose of opening up to a process of consultation. Many of you would have never come across the Sexual Reassignment Act 1988 in your parliamentary careers, I should imagine, and certainly most of us were not part of those original debates when this bill was conceived and produced.

We do know that in the entirety of this bill’s life, it has never been reviewed. 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. In fact, community standards and scientific understandings have come a long way from when this bill was first introduced and implemented, as have attitudes.

This certainly needs to be better reflected in this state’s legislation, but we also need to recognise that 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. It is now better appreciated that being transgender is not a personal lifestyle choice, but rather a human developmental variation. It has always affected a small minority, and that does not look like it will change, but the human population has always had transgender individuals.

I draw the attention of members to the World Professional Association for Transgender Health (WPATH), which is the leading body for transgender health care and which has long held a scientific evidence-based view that the best and most effective assistance is to support gender transition of those people in need of that assistance. The South Australian legislation has long been left behind by laws in more advanced Australian jurisdictions such as the ACT, and by international best practice, represented by the laws of jurisdictions and countries such as Argentina and Denmark.

Most importantly, as both the transgender community and healthcare professionals will tell you, this legislation is currently impractical; it does not work to the benefit of healthcare professionals, and it has never worked for the community. This repeal bill that I bring before the council today would enable those people who are most affected by this inadequate and ineffective legislation to have their voices heard. As I said, I flag my hope this council will refer this bill to a committee for inquiry—my preference would be for the Legislative Review Committee, but I am certainly open to discussing the options with members.

The flaws of this act as it currently stands can be summarised in two key areas. The transgender community and medical professionals have expressed that it creates a system that hinders effective quality health care for transgender people in this state. While it was well-meaning at the time when it was passed through parliament in the 1980s, it is inconsistent with the human rights of all peoples, in particular the human rights expressed by the United Nations International Covenant on Civil and Political Rights and the international Convention on the Rights of the Child.

The South Australian legislation establishes administrative processes that may well, if reviewed, be seen as unnecessary, including the recourse to a Magistrates Court to undertake a hearing for what is called a gender recognition certificate. I would even give some attention to the very title of this act, being called ‘sexual reassignment’. It is an inappropriate title; it always was. Certainly, that is something that notes that the content of the act is not only out of step with current times but, indeed, an inappropriate approach to these communities.

Examples of modern progressive legislation that I would hope South Australia could look towards to better serve not only our transgender community but, as I say, the broader community and health professionals, are laws such as those in Denmark and Argentina. In those two nations they have embraced full social acceptance of transgender people and their laws are compatible with the United Nations human rights conventions. The laws there, unlike the South Australian act, do not contain criteria designed to prevent people who might identify as a gender different from their birth from achieving legal recognition. These laws only require a simple and relatively quick administrative process and they are handled by registry officers rather than a court and going through a legal hearing.

Modern legislation does not include unique approval requirements by government ministers of associated healthcare professionals, as the South Australian act does. I have raised attention in this place previously to the fact that under this act it is required that the health minister approve those medical professionals and, with particular regard to the Hansard debates in the late 1980s, there was a thought that surgeries, for example, would be done at the Flinders Hospital. That is not actually something that occurs in this state. Indeed, if surgery is part of somebody’s transition, that does not take place in South Australia, it takes place interstate or overseas. While the health minister might want to be able to give recognition to those particular healthcare professionals, he has no jurisdiction and never will have jurisdiction over a healthcare professional interstate or overseas. That is the most transparently obvious failing of this legislation, but believe me there are many.

In Argentina, there is a law which is called the ‘Gender identity law of 2012′. It was passed in that jurisdiction on 8 May 2012 and it came into force in July of that year. It is widely acknowledged by human rights activists as the best legal identity recognition law across the globe. Unlike the South Australian act, which seeks to regulate, it has a different approach. In short, that law fully respects the self-determination of transgender people. It has none of the prerequisites that apply in the South Australian act, such as a prohibition on a married person changing their birth certificate or medical treatments associated with what are quoted as reassignment procedures.

That law is open to anyone, including minors (subject to process consistent with the Convention on the Rights of the Child), and it has a fast and transparent administrative procedure which, for adults, takes two to three weeks (approximately) to complete. It is very successful legislation and in its first year of operation approximately 3,000 new identity documents were issued, with no known cases of fraud. It does not impose a burdensome approval regime on healthcare practitioners, which is often associated with those who work with the transgender community.

We point to the gender recognition law of 2014 in Denmark, which came into effect on 1 September of this year, as another way forward for South Australia. I also draw members’ attention to Transgender Europe (TGEU), the major transgender human rights organisation for the European Union, which has recognised the new law as the benchmark for other European states to emulate. It is similar to the world’s best legislation in Argentina in that it is human rights based and does not impose other prerequisites such as divorce or medical treatment, which prevent gender diverse individuals from achieving recognition and certainly prevents them from achieving that recognition here in South Australia under our current laws.

Like Argentina’s law, that law mandates a simple and transparent administrative system for changing all identity documents, including birth certificates. Unlike Argentina’s gender identity law, it does impose a six-month waiting period between application and amendment of documentation from a concern with the potential of hasty decisions being made by individuals. It also establishes a minimum age of 18 years for an application, which does contradict the International Convention on the Rights of the Child. Like Argentina’s gender identity law, it does not impose an approval regime on healthcare professionals.

I have had many discussions, and I thank the then minister for health, his chief of staff (Peter Luca) and the Hon. Stephen Wade, who was then the shadow attorney-general, for attending a forum I called in this parliament approximately two years ago to hear the concerns of the transgender community. At that forum I know that there were many varied stories of people who were having myriad problems with the South Australian system. Whether that was because a health minister could not authorise the medical professional that they had employed to have a surgery, for example, or whether it was because they had been born in another state, there was a range of problems.

Basically, it was a difficult proposition for me to see a way forward at that first meeting, but I was certainly heartened by the interest shown by the minister for health’s chief of staff and the minister for health by proxy on this issue, and indeed the shadow attorney-general at that stage. I am very keen to keep working with all sides of politics on this.

I see the referral of this particular bill—a simple bill (a one-page bill, so it will not take you long to read) to repeal this act—as an opportunity to hear from the transgender community, which this law does not serve (I think they are almost unanimous in agreement on that), and certainly from the health professionals, who find these laws that we have in our state difficult to operate under (indeed, in some ways they are quite significant barriers), as well as people like the Registrar of Births, Deaths and Marriages and those in government departments.

This will be an opportunity for the first time to review this act, to hear those stories and to create a piece of legislation, if it is needed at all, that better serves the transgender community but certainly one that must reflect our obligations under the United Nations conventions. In the framing of whatever comes out of this I would hope that we pay some attention also to the motion that has just come out of the third international biennial conference of the Australian and New Zealand Professional Association for Transgender Health (commonly known as ANZPATH), which was actually held in Adelaide in the past week.

That passed the following motion addressing Australian gender recognition legislation:

That the Federal, State and Territory Governments develop unifying laws that address the human rights of all Trans identified Australians.

It is a simple motion. It would have a profound effect on many people’s lives. I note that there were several presentations and certainly community space at that particular confidence, and a scholarship was set up. I acknowledge the South Australian government for facilitating that work that has opened up that particular conference to the trans community more than has ever been done before.

I understand from anecdotal feedback that, for example, comments were made that it was the safest space people had ever been in and that they had actually felt quite positive, having had some trepidation about attending the conference, and that there was a particular room there designated as an even safer space within the conference and it did not even have to be used. I would love to have a community where that was not an unusual occurrence for transgender people in our state and that that was what they experienced every day. Changing our laws will go some small way to seeing that cultural shift occur across the broader community.

There were presentations to the ANZPATH conference that last weekend which focused specifically on the South Australian Sexual Reassignment Act. It is safe to say that we probably have one of the most retrograde acts in the country. It was very well meaning when it was first debated, and I understand that at the time we were probably ahead of the game, but many of the assumptions and pre-suppositions have not turned out to be effective or supportive.

I draw members’ attention to the fact that our South Australian act was a focus of workshops at that community as an example of something not to have. It was highlighted as an inappropriate piece of legislation within the Australian context.

There is some debate that perhaps trans people are not visible enough or large enough in numbers, and I have noted that a large part of the journey for many trans people is actually not to be visible and not to be noticed and to pass and not to make themselves stand out from the community. That is part of what they want. They want to pass as a member of the community who is no different from any other member of the community.

That has been to the detriment of their ability to organise because, by the very nature of not wanting to be seen to be different, their differences and points of view have not been heard. I certainly hope that one of the other great things that came out of the ANZPATH conference, which was a national advocacy group and which was overwhelmingly supported by those members of the community, will see not only this law change but laws across the country, and cultural shifts that we so need.

It is no surprise to members of this council that the trans community suffers mental health problems and stigma and have higher rates of suicide and discrimination than some other members and portions of the community. We can go a long way to assisting with that by ensuring that at least we hold up our end of the bargain as parliamentarians and ensure that we have an act that serves the very people it was designed to help and does not hinder them.

With those few words, I commend the bill to the council and look forward to further discussions and debate and hopefully a process where we hear the voices of the trans community, the medical professionals, as well as those in government responding and ensuring that we have legislation that not only complies with United Nation conventions but that we can be proud of.

Debate adjourned on motion of Hon. G.A. Kandelaars.

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