Transgender (Anti-Discrimination And Other Acts Amendment) Bill

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Speakers - Shaw The Hon Jeffrey
Business - Bill, Second Reading

TRANSGENDER (ANTI-DISCRIMINATION AND OTHER ACTS AMENDMENT) BILL

Second Reading

The Hon. J. W. SHAW (Attorney General, and Minister for Industrial Relations) [4.15]: I move:

That this bill be now read a second time.

By leave, my second reading speech will be incorporated in Hansard.

The main purpose of the bill before the House is to amend the Anti-discrimination Act 1977 to include discrimination on transgender grounds as a separate ground of discrimination and to amend the Births, Deaths and Marriages Act 1995 to provide for the legal recognition of post-operative transgender persons.

I will begin with an explanation of the proposed amendments to the Anti-discrimination Act. The Government believes it is appropriate to introduce this proposal for two main reasons.

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First, transgender status is a question of

gender identity

, and not sexual preference. Because of the way the Anti-discrimination Act is currently written, there is no express prohibition against discrimination against people on the basis of their identity as transgender persons.

Secondly, there is strong evidence to show that transgender persons are subject to high levels of discrimination in their daily lives, including discrimination in employment, and in their access to services.

Transgender persons also experience exceptional levels of verbal and physical abuse and violence. In response to their victimisation and social ostracism, transgender persons report a range of isolating and self-destructive behaviours to escape the discrimination.

The Government believes that anti-discrimination legislation would go a long way to help end the discrimination against this section of the community.

As far back as 1989, the Anti-Discrimination Board of New South Wales recommended that discrimination against transgender persons in areas of public life be made unlawful.

The board noted that the existing grounds of sex or homosexuality were not adequate grounds upon which transgender persons can seek redress against discriminatory conduct based on the fact that the gender with which that person identifies differs from that person's gender at birth.

The issue was also considered by the Anti-Discrimination Board in its report on the inquiry into HIV and AIDS related discrimination released in April 1992. In that report, the board recommended that transsexuality be included as a ground of complaint under the Anti-Discrimination Act.

The term "transsexuality" is the term most commonly used by the general community to describe people who are born as a member of one sex, but assume the characteristics of the other sex. However, the term has attracted criticism, especially from the transgender community, for being too narrow in scope.

There is concern that the term "transsexual" is inevitably linked with "sex-change" surgery, with the implication that the proposed discrimination amendments would only apply to post-operative transsexuals.

As estimates indicate that only about 20 per cent of persons who have assumed a different gender have undergone surgical intervention, there is an argument for employing more broadly-based terminology.

It is therefore proposed that "transgender" be the term used to identify the basis of a complaint under the Act. This includes a person who is born as a member of one sex but who has lived, or lives, or seeks to live as a member of the other sex. A reference to a transgender person would also include a person being thought to be a transgender person, whether he or she is in fact a transgender person or not. This is consistent with the definition of what constitutes discrimination on the grounds of age and homosexuality.

The term transgender in the legislation has therefore been used to refer to all transgender persons, regardless of whether they have undergone surgical intervention. This is considered necessary because the discriminatory conduct usually occurs as a reaction to a person's dress, behaviour and other characteristics being at variance with that person's original gender. Such conduct should be unlawful whether or not there has been surgical intervention.

This definition is not intended to cover persons who cross dress or who have adopted the characteristics of the other sex, say for example, a male person who from time to time wears makeup, or high heels, who has not chosen to live as a member of the other sex.

The bill will also provide for the creation of an offence of transgender vilification. This is consistent with existing provisions which make it unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person, or group of persons, on the ground of race, homosexuality, or HIV/AIDS.

The bill will also provide for an offence of serious transgender vilification, that is, threatening physical harm towards the person, group of persons or their property. The penalty for such an offence will be a fine of up to $1,000 or six months gaol for an individual or $10,000 in the case of a corporation. Given the vulnerability of transgender persons within our community to this kind of behaviour the Government believes the creation of these offences is both necessary, and appropriate.

Before detailing the provisions of the bill dealing with the legal recognition I would like to repeat a quote contained in a judgment by Her Honour Justice Matthews in

Harris v McGuiness

, a 1988 judgment by the New South Wales Court of Criminal Appeal:

Refusal to reclassify the sex of a post-operative transsexual seems inconsistent with the principles of a society which expresses concern for the privacy and dignity of its citizens. Failure to redefine sex in the case of the transsexual will create undue hardship for an otherwise troubled person. Society will lose nothing and transsexuals will gain the opportunity to lead normal lives if legal sex is determined not by chromosomes or anatomy of birth alone, but by present psychology and anatomy.

Today the transsexual is faced with the choice between equally undesirable alternatives. If he (or she) chooses to live within the sex to which he/she was born, he/she has in effect condemned himself/herself to a perpetual masquerade. If he/she decides to seek medical reassignment, he/she subjects himself/herself to the scorn and curiosity of society and the limbo of no legal sex identity. Both situations are appalling and are inconsistent with the professed enlightenment of our times".

I believe that legislation to address the schizophrenic legal position faced by post-operative transgender persons in this State is long overdue.

Legislation enabling post-operative transgender persons to obtain a new birth certificate showing their reassigned sex has been in place in South Australia since 1988.

Similar legislation already exists in other countries including Germany, Sweden, Czechoslovakia, Greece, Italy and Holland. At least 25 jurisdictions in the United States allow for the issue of new birth certificates, as do a number of Canadian provinces.

The proposed New South Wales legislation amends the Births, Deaths and Marriages Act 1995 to enable a person who was born in this State and has undergone sexual reassignment surgery to apply for a new birth certificate showing their new sex.

For the purposes of New South Wales law, the new birth certificate will be conclusive evidence that the person to whom the certificate refers has undergone a reassignment procedure and is of the sex stated in the certificate.

In addition to providing legal recognition for transgender persons born in New South Wales, the legislation also recognises equivalent certificates issued under a corresponding law in another jurisdiction. In other words, where another jurisdiction legally recognises post-operative transgender persons born in that jurisdiction, New South Wales will also recognise that person's new legal status.

The legislation is not intended to overturn the provisions of the Commonwealth Marriage Act. Thus, a new certificate will not be issued where the applicant is married. The bill also provides that it is an offence for a

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person, who has been issued with a new birth certificate, or for another person, who knows of a person's changed legal status to produce the birth certificate for the purposes of a law of another place. There will be exceptions to this where:

-the laws of the other place expressly allow such a certificate (or a copy or extract from such a certificate) to be so produced; or

-the person to whom the certificate is produced is advised of the alteration of the record of sex.

The "laws of another place" includes the laws of the Commonwealth and other States and Territories. Breach of this provision may attract a penalty of up to $1,000 or two years imprisonment.

The proposed legislation also provides that it is an offence for a person whose record of sex has been altered to produce their previous birth certificate, without lawful excuse. Other provisions relating to fraud and the registration process are already contained in the Births, Deaths and Marriages Act 1995.

Sporting bodies will be exempt from compliance with the anti-discrimination provisions. In effect this means transgender persons will not be recognised for the purposes of participation in sport. This exemption will not apply to transgender persons involved in coaching, administration or other prescribed activities relating to sport.

This approach clarifies the law for State sporting organisations and ensures that they are not placed in conflict with national/international affiliate organisations.

Granting legal recognition also has implications for the superannuation sector in terms of differential contributions and benefits. These implications have not yet been fully determined. The legislation therefore provides for an exemption to legal recognition in this area. Nevertheless, I wish to advise the House that the Government is currently examining this matter with a view to possible further amendments at a later date. It is my intention to consult with relevant groups regarding any future changes to the legislation and the regulations.

The proposed legislation also provides for cognate amendments to the New South Wales Crimes Act 1900. The amendments add to certain definitions relating to sexual assault offences to make it clear that such offences may also be committed upon transgender persons.

In addition, the bill provides for amendments to the Wills, Probate and Administration Act 1898 to provide that a beneficiary will not be disinherited merely because they identify as a person of the opposite sex, unless the will expressly provides otherwise.

During the drafting of the bill all relevant interest groups were consulted and indicated their general support for the bill.

I commend the bill to the House.

Debate adjourned on motion by the Hon. D. F. Moppett.

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