2016-12-05
Ms PENNICUIK (Southern Metropolitan) — I am very pleased to speak today in full support of the Births, Deaths and Marriages Registration Amendment Bill 2016. This bill amends the Births, Deaths and Marriages Registration Act 1996 so that adults who apply to the Victorian registrar of births, deaths and marriages to alter the sex recorded on their birth registration will no longer have to have undergone sex affirmation surgery or to be unmarried, which are the current requirements. The bill also introduces a new process with certain conditions to allow young people to have the sex recorded on their birth registration altered as well.
The Greens fully support this bill as the reforms in this bill are longstanding Greens policy and the Greens had a commitment to introduce a private members bill with these reforms if the government did not do so. We understand that this was also a key government election commitment. Either the government or the Greens would have introduced these reforms.
I was the longstanding spokesperson on equality matters before the election of my colleague the member for Prahran in the Assembly, Sam Hibbins. He spoke very eloquently as the spokesperson on equality in favour of this bill in the lower house. In particular, having followed some of the speakers from the Liberal Party and some speakers who spoke with a degree of misinformation about the bill but also in such a way that was, you would have to say, offensive to people in the community, he expressed his distress at hearing some of those things said in the lower house. He made the point that it would be a travesty if this bill was not to pass the Parliament. I echo that sentiment that it would be a travesty for it not to pass, because the bill will make such a positive change to the lives of people who have had barriers put up to them by the existing legislation, as it exists in Victoria and as it exists currently in other states. I will go to some of the detail with regard to that in my contribution. These barriers need to be pulled down and the identity of people needs to be fully recognised. The self-identity of people needs to be fully recognised by the law and by the community. What will make a very positive difference to the lives of transgender people in our community will make no practical difference to anyone else's life but it will make a huge difference to their lives, and that is why this bill needs to be supported.
The previous speaker, Mr Davis, spoke about the controversy in this bill and legitimate concerns — neither of which I see. I do not see any controversy in this bill. It is a very straightforward bill, and legislation to this effect exists, as I said, throughout Australia. In some ways this bill goes a bit further than some legislation throughout Australia, and in other ways, in particular with regard to children, it is a catch-up bill because Victoria is the only state which does not have any provisions with regard to children or those under 18.
We know that the government has consulted extensively with key stakeholders on this bill, particularly Transgender Victoria, which is very supportive of the bill. Others, such as the Law Institute of Victoria and the Human Rights Law Centre, for example, are also very supportive of the bill. I think Mr Davis tied himself up in knots by speaking about parts of the bill which he said were raising legitimate concerns, and then he proceeded to describe the provisions in the bill which allayed those concerns. I am not quite sure why, after listening to him, he could not be supporting this bill, and the same goes for other members of his party. I do not understand why they cannot be supporting this bill and the positive contribution it will make to the lives of so many people.
The background is that in 2004 the then Attorney-General, Rob Hulls, introduced legislation to provide for a birth certificate to be updated to reflect a person's affirmed sex. Victoria was in fact the last jurisdiction to do this. The bill was supported in Parliament by all parties, including the Liberal Party and The Nationals. In fact it is interesting that if you read through the debate on that bill in 2004 you will see that there was quite a lot of support for the bill to be going even further at that time. For example, in terms of the requirement that a person be unmarried, the then Leader of The Nationals, Mr Ryan, said:
That would mean by implication that a person who has been married but who at the time of the application is divorced is nevertheless able to avail themselves of the terms of the legislation. It would mean, therefore, that a divorcee can apparently access the legislation — and that is fine insofar as the operation of the bill is concerned — but a person who is married is not able to do so.
So even 12 years ago when the first tranche of this legislation was introduced the then Leader of The Nationals was advocating that it go further, as did other speakers, and Ms Mikakos was one who also advocated that during her speech, but I leave her to speak for herself; I am just reporting what is in Hansard from that time.
I would like to thank the government for introducing the bill. and I commend it for doing so. As I said, it is longstanding Greens policy as well. I would like to take this opportunity also to thank everybody who has worked so hard to advocate for the bill and to bring it here today — those in the transgender community and others who have worked with them to bring the bill here.
I would like to thank the library as well for its excellent brief on the bill. Also, to put it into more context, in 2014 in Norrie the High Court decision upheld the rights of a transgender person to be registered as neither a man nor a woman with the New South Wales Registry of Births, Deaths and Marriages. Norrie, the person at the centre of the High Court case, had undergone a sex affirmation procedure but considered that the surgery did not resolve her sexual ambiguity and thus she applied for her sex to be registered as non-specific. In their judgement — and this is the important part — the justices noted that:
Not all human beings can be classified by sex as either male or female.
So the High Court of Australia set the framework there in 2014.
The brief from the library also outlines the situation as it applies in the Australian states and territories. As is the case at the moment, and this includes Victoria, all adults over 18 can apply in any state or territory. In every state or territory except for Victoria the guardian of a child under 18 can apply, so that is where in this case the Victorian bill is catching up with the rest of Australia. In every state and territory still people must be unmarried, except that Victoria is removing that requirement with this bill. Except for the Australian Capital Territory, it is still the case in most Australian states and territories — although I believe some will be moving to remove the requirement — that the person must have undergone surgery.
This bill removes the requirement for sex affirmation surgery. This is a serious medical procedure that involves the alteration of a person's reproductive organs. For some people such surgery is not an option due to their choice, to medical costs, to a medical condition or to a disability that may prevent it from being a viable option. This is a very welcome development in this bill, and I hope to see it repeated around Australia so that it will no longer be a requirement for a person who self-identifies as a different sex or in fact as neither male nor female to have to have undergone any sort of surgical procedure in order to do so.
The bill also removes the current requirement for a person to be unmarried in order to make an application to alter the record of their sex in their birth registration certificate. This requirement can force a person to choose between a birth certificate that reflects their sex or affirms gender identity and the maintenance of the legal relationship with their spouse, even where that relationship is ongoing. This is clearly an unjust situation.
It is worth noting also that there is no mention of the possibility of a legal challenge. In addition to removing the marriage barrier in the ACT, it has not led to any court challenges to the legislation. Importantly — this is where the bill catches up with the rest of Australia — it provides for young people under 18 years of age under certain conditions to be able to alter the sex recorded on their birth registration, with additional criteria for those who are under 16 years of age. As I said, currently Victoria is the only state that does not provide such a statutory process for a child.
Most Australians take their identity documents for granted, but when a person wants to change the sex marker on their identity documents, they face a number of bureaucratic hurdles relating to changing their birth certificate, their passport or their drivers licence. The birth certificate is the core document for proof of identity in Australia. As stated in the Australian Human Rights Commission's report Resilient Individuals — Sexual Orientation Gender Identity & Intersex Rights:
The importance of having an identity document which matches a person's gender expression should not be underestimated. It provides empowerment, engenders respect, and mitigates potentially difficult situations for gender diverse individuals.
It is extremely important that the process to alter a person's sex to reflect their gender expression or identity is one that does not create significant or unjust barriers, which the current process in Victoria does create.
In addition, the report of the human rights commission refers to submissions stating that the requirement for a change of sex on birth certificates with the sex affirmation surgery inadvertently entrenches a medical model of gender that essentially pathologises gender identity and:
This approach de-legitimises the experiences of people who cannot or choose not to have surgery as part of their gender affirmation.
With regard to children, Victoria is the only jurisdiction not to provide for a statutory process for a child to alter the sex recorded on their birth certificate. This bill changes this. Under clause 8 the bill provides that a child may make such an application if:
(a) the child's birth is registered in Victoria; and
(b) the child consents to the alteration of the record of the child's sex to the sex descriptor nominated in the application; and
(c) the parents believe on reasonable grounds that the alteration of the record of the child's sex is in the best interests of the child; and
(d) the record of the child's sex has not been altered within the 12 months preceding the date of making the application.
In the application the parents must nominate the sex descriptor. The application must be accompanied by a supporting statement by a relevant person — for example, a doctor or a registered psychologist. The statement must state that in the opinion of the relevant person the alteration of the child's sex is in the best interests of the child. If the child is under 16 years of age, the supporting statement must include that in the opinion of the relevant person the child has capacity to consent to the alteration of the record of their sex, and a child of 16 or more years is presumed to have capacity to consent.
Further, the bill provides for situations where there may be a difference of opinion between parents or guardians or where there is a sole parent or guardian whereby the County Court can make an order approving the alteration of the child's record of sex if it believes it is in the best interests of the child. Where neither the parents nor a guardian make an application on behalf of the child, despite the child's request for an application to be made, the matter would be resolved in the Family Court under new section 30C(3)(a) inserted by clause 9.
It is important that young people are covered by this bill as is the case in other states and territories, since there have been instances of young people being discriminated against when being asked for their birth certificates at school or when applying for jobs. This can be extremely difficult for them, can undermine their self-esteem and may even prevent them from continuing with the application or lead to the application being rejected.
This is a fairly simple but far-reaching bill that will have, I would say, long overdue and very positive benefits for the people who it will directly affect. I ask those people who have reservations or reasons to have reservations about the bill to think about the fact that by not supporting this bill they will be deeply affecting the lives of other people, whereas this bill will be making a positive contribution. I ask that they consider whether that is really what they would like to be doing. I hope the Council will be able to support the bill, which will make such a positive contribution to the lives of people who hitherto have faced so many barriers and obstacles in their quest simply for the ability to be recognised as the person they are.