The Tasmanian Law Reform Institute’s Issues Paper titled ‘Legal Recognition of Sex and Gender’ was released for public consultation on 24 June 2019. Community feedback was sought, with a deadline of 20 August 2019. A final report is to be delivered to the Attorney-General later this year.
https://www.utas.edu.au/__data/assets/pdf_file/0005/1240484/BDM-Report-v2.pdf
By way of background to the release of the Issues Paper, we note the following.
BACKGROUND
In February 2016, the then Anti-Discrimination Commissioner, Robin Banks, released an Issues Paper titled ‘Legal recognition of sex and gender diversity in Tasmania: Options for amendments to the Births, Deaths and Marriages Registration Act 1999’ see –
Submissions in response were invited by 4 April 2016, a period of around five to six weeks from release of the paper. We understand there were around 20 to 25 submissions tendered. The submissions were not made public and the Commissioner did not provide a final report to the then Attorney-General, the late Vanessa Goodwin.
The absence of a final report for this paper was raised during debate on the Justice and Related Legislation (Marriage and Gender) Amendments Act 2019 (JRLA) in the Legislative Council by Ivan Dean MLC. In response, Mike Gaffney MLC, who supported the changes to both the Anti-Discrimination Act 1998 (ADA) and the Births, Deaths and Marriages Registration Act 1999 (BDMRA) enacted by the JRLA quoted an email response to questions about the report from Robin Banks. Channelling Ms Banks, he said the submissions received were with the Department of Justice and any decision about their public release or the drafting of a final report ‘sits’ with them.
Since the Issues Paper’s recommendations were achieved, and in fact exceeded in April this year, this matter may be largely irrelevant. We know, however, that submissions were made against those recommendations, and their non-disclosure to the public is an element in the long game played by supporters of transgender law reform in Tasmania.
The recommendations contained in the issues paper are essentially the same as the changes to the BDMRA that were passed by both houses of the Tasmania parliament on 10 April 2019.
From 9 December 2017, changes to the Commonwealth Marriage Act meant that same sex marriage became legal. These changes meant certain state-based laws required amendment to be consistent with the amended Marriage Act.
In particular, in Tasmania, the requirement under the BDMRA that a person could not register a change of sex unless they were unmarried – the so-called ‘forced divorce’ provision – would need to be repealed.
The states were given a nominal period of one year from December 2017 to make the necessary legislative changes.
In Tasmania, the relevant legislation – the Justice and Related Legislation (Marriage Amendments) Bill (JRLB) – was brought before the Lower House of parliament on 16 October 2018.
On 17 October 2018, the University of Tasmania hosted a forum titled ‘Transforming Tasmania: Legal Reforms for Gender Diverse and Intersex Equality’. Speakers at the forum were Professor Margaret Otlowski, former Tasmanian Anti-Discrimination Commissioner, Robin Banks, and transgender and gender diverse community representatives, Matty Wright and Dede River.
Prior to this event, Women Speak Tasmania approached the Tasmanian Law Reform Institute requesting that they consider an additional forum to put forward alternative legislative proposals to protect the rights of female persons and transgender people equally.
The Institute responded, claiming the Transforming Tasmania forum was intended to set a legislative framework to benefit all Tasmanians, and inviting the submission of law reform suggestions. The possibility of an alternative forum was, very carefully, not mentioned.
On 20 November 2018, the Opposition parties in the Lower House moved nine (9) amendments to the JRLB that amended both the ADA and the BDMRA.
The Liberal government opposed all nine amendments, but they were passed after virtually no substantive debate with the support of Liberal Speaker, Sue Hickey. As you know, Ms Hickey had a casting vote in the Lower House, which was composed at the time of 13 Liberal members, 10 Labor members and two (2) Greens members.
The heavily amended JRLB was delivered to the Upper House on 21 November 2018. Despite the clear intention of a majority of members to pass the Bill, the recognition of several legal issues and drafting errors in the amendments meant the Legislative Council decided to defer debate until the first sitting session of 2019. A written undertaking was extracted from the Premier and the Attorney-General to bring the Bill on for consideration immediately Parliament resumed in the new year. This was very unusual – the agenda for consideration of legislation is normally set by the government.
Also in late November, the Attorney-General referred the issue of legal recognition of sex and gender to the Tasmanian Law Reform Institute. The terms of reference of that referral were –
- What, if any, reforms should be made in relation to the definitions or use of terms relating to sex and/or gender in Tasmanian legislation;
- What steps should be required to register a change of sex or intersex status on official documents;
- What categories of sex/gender should be displayed on birth certificates and other documents; and
- What, if any, reforms should be made in relation to consent to medical treatment to alter a person’s sex or gender.
Between late November 2018 and March/April 2019 the amended JRLB was extensively overhauled by Ruth Forrest MLC. When debate on the Bill resumed in the Upper House in early April 2019, Ms Forrest had produced and distributed 20 versions of her amendments, the last of which was dated 26 March 2019.
Ms Forrest’s amendments supposedly corrected drafting errors in the Bill, as passed by the Lower House, and added further amendments to remedy inconsistencies with existing legislation, particularly legislation related to legal searches, termination of pregnancy and human cloning.
The JLRB, incorporating all Ms Forrest’s amendments, and minor amendments proposed by Ivan Dean, Rosemary Armitage and Tania Rattray, was passed by the Upper House on 9 April 2019, and agreed by the Lower House on 10 April 2019, again with the casting vote of Liberal Speaker, Sue Hickey.
Royal Assent was noted on 8 May 2019. The provisions of the JRLB that involved amendments to the ADA commenced on that date. Amendments to the BDMRA will commence no later than 5 September 2019. The delay was to allow time for the Registrar-General to put in place the procedures necessary to implement the new laws.
THE AMENDMENTS
The most significant amendments introduced by the JRLA are –
The introduction of ‘gender expression’ as a protected attribute under the Anti-Discrimination Act 1998. ‘Gender expression’ is defined in the new law as –
‘any personal physical expression, appearance (whether by way of medical intervention or not), speech, mannerisms, behavioural patterns, names and personal references that manifest or express gender or gender identity’
This attribute is now protected from behaviour that ‘offends, humiliates, intimidates, insults or ridicules’ another person, under section 17 of the ADA.
So, a person ‘offended’ by the use of incorrect pronouns could now have a legitimate claim under the ADA. The offence of ‘misgendering’ has been created.
An amendment providing that a person with a registered ‘gender’ is to be regarded as being of that gender for the purposes of any Tasmanian law. This is especially relevant to the application of exemptions to discrimination on the grounds of ‘gender’ under the ADA. These exemptions were arguably originally intended to allow single-sex organisations and facilities to exclude members of the opposite sex. Under the new laws, such exclusions will be impossible if the person involved self-identifies as the ‘gender’ to which the exemption applies, and has a birth certificate proving their legal gender.
Changes to the BDMRA that allow any person over the age of 16 years to register a gender different to their birth sex. Applications to register a gender must be accompanied by a statutory declaration (called a ‘gender declaration’) that declares the person identifies as a certain gender and lives, or seeks to live, as a person of that gender. Applications to register a gender can be made every 12 months. This is known as ‘sex self-identification’.
Parents/guardians can apply to register a gender for a child under 16 years, as long as it is the child’s ‘will and preference’ or the child is unable to understand the meaning of a gender registration. The ‘will and preference’ test in respect of children replaces the ‘best interest of the child’ test that guides decisions about minors in every other jurisdictional area in Australia. The rationale for the total abandonment of the ‘best interest’ test is not clear, and is not explained in the TLRI Issues Paper.
The gender registered in all cases can be either –
- male; or
- female; or
- indeterminate gender; or
- non-binary; or
- a word, or a phrase, that is used to indicate a person’s perception of the person’s self as being neither entirely male nor entirely female and that is prescribed; or
- a word, or a phrase, that is used to indicate a person’s perception of the person’s self as being neither entirely male nor entirely female
Essentially, there will be an unlimited variety of registered genders and those genders will be shown on birth certificates, if requested.
Which brings us to the ‘opt-in’ system for obtaining a birth certificate that shows information about sex or gender. There will be numerous options available to applicants for a birth certificate, whether for a person over 16 years or a child under 16 years. A certificate can be ordered that shows no sex or gender information, or current sex or gender information with no notation of any previous registered sex or gender or name, or with a notation of any previous registered sex or gender or name.
Regardless of the information contained on a birth certificate, post 5 September, the field for sex or gender information will be marked ‘gender’.
Clearly, there will be opportunities for fraudulent abuse of these provisions. A single individual could have a number of official birth certificates showing different genders and names. The amendments to the BDMRA purport to address this possibility with a penalty consisting of a fine, a two year maximum prison term or both – not sufficient to deter anyone who can see a clear advantage in rooting the system.
THE TLRI ISSUES PAPER
The TLRI Issues Paper, drafted in response to the government’s Terms of Reference, makes it clear the Institute has no intention of ‘revisiting the underlying policy position’ that informed the new laws. The Issues Paper is ‘informed by the passage of the JRLA’.
The Issues Paper is essentially a ‘rubber stamp’, approving achievement of the stated policy aims of the amended JRLA.
Some points of interest –
Despite declaring no interest in making policy statements, the Issues Paper recommends that it is appropriate for decision-making bodies to reflect gender diversity, rather than merely representation on the basis of sex. Statutory requirements for composition of Boards could be amended to require membership of Boards “to seek to achieve gender diversity”’.
This appears to be both a policy recommendation and a comment outside the scope of the terms of reference informing the Issues Paper.
The Issues Paper expresses no concern about the substitution of the ‘will and preference’ test for the ‘best interest’ test in relation to the registering of a gender different to birth sex for a person under years.
The Institute says that ‘where minors demonstrate ‘Gillick competence’ their wishes (regarding medical treatment for gender issues) should be respected regardless of what others or a court may consider to be in their best interests’ (page 64).
‘Gillick competence’ refers to a test of competence for those under 16 years to consent to medical treatment on their own behalf. The test forms part of a 3-2 majority decision by the UK House of Lords in 1985, and involves the common law notion of the ‘mature minor’. The facts of Gillick were this – a 15 year old girl sought a prescription for oral contraceptives from a local area health care service. Doctors working in that service had been advised they could prescribe such medication to girls under 16 for the purposes of avoiding unwanted pregnancy. The girl’s mother took action against the area health service challenging its right to provide such medication to her daughter. It was decided that the provision of medical treatment to those under 16 was lawful if the minor child was sufficiently mature and intelligent to understand and consent to the treatment.
Seems reasonable enough, but we’re talking about a case that was decided in relation to a sexually active 15 year old girl seeking oral contraceptives. It alarms me that the test is now applied to cases where children and adolescents are seeking largely untested medical and surgical interventions with significant, irreversible long-term consequences. I wonder if the House of Lords would have been so ready to attribute competence to a minor if the matter before them had involved a 15 year old girl and a double mastectomy.
The Issues Paper notes 35 Tasmanian laws that it recommends be amended to maintain consistency with the new laws. I did a quick search of the Tasmania legislation database using the search term ‘woman’ and found three more.
Interestingly, many of the amendments recommended by the TLRI as a means of ensuring consistent interaction with the JRLA involve erasing of the terms ‘female’ and ‘woman’ and their replacement with the generic term ‘person’. In many cases this amounts to the effective neutering of functions like childbirth that are exclusively the province of biological females.
The Issues Paper insists, on several occasions, that the new laws require a person under the age of 18 to receive counselling before a gender is registered for them. This is not an accurate reading of the amendments. Ms Forrest’s changes are, admittedly, very complex, but it seems clear that counselling is not a definite requirement in these cases. Evidence of counselling MAY be provided in support of an application, and the Registrar MAY require evidence of counselling if they consider it necessary.
There is an unnecessary focus on medical and surgical interventions for intersex persons, which appears to be designed to distract attention from the issue of medical and surgical interventions for transgender persons with normal genitalia and no chromosomal anomalies. Intersex individuals are rare, and modern testing ensures they receive appropriate care from birth. Unnecessary, mutilating surgeries on infants born with ambiguous genitalia are a thing of the past.
Finally, despite its title, ‘Legal Recognition of Sex and Gender’, neither the Issues Paper or the JRLA address the issue of ‘sex’ – it is not defined, it is afforded no protections under the Anti-Discrimination Act, and the word will no longer appear on Tasmanian birth certificates. The social construct of ‘gender’ will be one of the primary identifiers of an individual, and some of those identifiers will undoubtedly be absurd.
By Bronwyn Williams