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Speech: Births, Deaths and Marriages Registration Amendment Bill 2016

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Sam Hibbins MP
Member for Prahran
14 September 2016

Mr HIBBINS (Prahran) — I rise to speak on behalf of the Greens on the Births, Deaths and Marriages Registration Amendment Bill 2016, which amends the Births, Deaths and Marriages Act 1996 to provide for the self-determination of sex on a person's birth certificate and to remove the requirements for sex affirmation surgery and being unmarried. The Greens fully support this bill as it is consistent with the Greens policy that we took to the last election and the commitment to ensure that intersex and transgender people are able to easily alter their sex on all official documents so it is consistent with how they live and how they identify irrespective of their marital status.

We do understand that the government has consulted widely and extensively on this bill, and we are very pleased to see that this very important, positive reform has been introduced into this Parliament. I am very concerned, having heard that the coalition intends to oppose this bill. I believe it has been widely consulted. To be fair, the Labor Party did take this policy to the last election, and the Greens took this policy to the last election. It is one thing to say the bill has only been on the notice paper or been out for 13 days, but anyone could have seen this coming. This is not a sudden surprise, and if the opposition had taken the time to develop a policy, we would not be having this issue of its members asking all these various questions.

I mean, there are some concerns over technical aspects. I think there are some moral aspects, some unanswered questions, and I would just say compare them to the problems that exist now because we have these requirements for changing one's birth certificate. Think of the problems that exist now and the benefits of passing this legislation. I would suggest to the coalition that if they are intending to vote against this bill in the lower house, the next sitting week is in about three weeks time and bipartisanship takes a bit of effort from both sides. I would say to the coalition: do the work to get yourselves into a position where you are comfortable either supporting this bill or giving your members a free vote. Because it would be an absolute travesty for this bill to be defeated. I feel sick in the guts thinking of that, after all the work that has been put into it and the importance that it will have out there for so many people in our community. I would put it back to the coalition: do the work to get yourselves into a position where this bill can pass.

It is important because many Australians take our gender and identity on official documents for granted, but for a person that wants to change the sex marker on their birth certificate the current laws are unjust and they are impractical. Changing sex on a drivers licence or in a passport has been made easier in recent years but not for a person's birth certificate, which is really the primary and central identification document.

We have had changes that have been made in the ACT. We have had changes that have been made in other countries that remove the need for surgery and provide for self-determination, and for a person to have a birth certificate and all other documents that reflect their identity should not be underestimated. It provides empowerment, affirmation, it engenders respect and it avoids all those difficult situations for gender-diverse people when they are required to produce their birth certificate, whether it be for work, for school or for myriad other reasons. So it is incredibly important that we have a process where someone can alter their birth certificate to reflect their gender identity, not one that creates the significant and unjust barriers that the current process in Victoria does.

We know that many agencies and organisations have different administrative practices when changing the sex marker, leading to people having different experiences and varying degrees of frustration, but having public documentation such as a birth certificate that reflects a person's gender is absolutely crucial to a person's sense of identity and recognition.

The aspect of removing this need for surgery, this need to have gone through sex assignment surgery, getting rid of this is absolutely critical because we know a person's gender identity is not necessarily defined by their physical body. We know that this medicalisation of gender identity delegitimises the experiences of people who cannot or choose not to have surgery as part of their gender affirmation. Surgery is simply something that many people do not want to do or cannot do. It is not a requirement for someone to transition gender, and it is not something the government should be using to determine a person's sex.

Allowing Victorians to self-determine the sex recorded on their birth certificate will ensure the law is in line with how people live their lives, as is removing this need for a person to be unmarried. In 2004, when this original legislation was brought before this Parliament, it required people to be unmarried, and at the time the argument was that if legislation was brought in Victoria that did allow a person to be married before transitioning and changing their birth certificate, it may be open to a legal challenge on the basis of inconsistency with the commonwealth Marriage Act 1961.

But this in itself is an unjust situation and has created the new problem of forced divorce for transgender people, whereby people who have chosen to undergo surgery would then be forced to divorce their wife or husband. I think of the story of my colleague the Victorian Greens Senator Janet Rice and her long-term partner Penny. After many years of marriage Penny transitioned and faced that unenviable choice of whether or not to divorce before she could change her birth certificate. They and many others will benefit from this legislation. I also point out that the ACT have had this provision and have not faced any legal challenge to their law.

There are so many people with so many powerful stories who have transitioned, and the difficulties and the challenges they face are evident. That is why we need laws like this to affirm and support gender-diverse people, not to hinder them. Also, these laws will have a positive impact on intersex Victorians, who will particularly welcome the removal of the need for surgery and the provision for a non-binary description of sex, which reflects how many people identify.

The process in detail, as has been discussed by other members, is that the application for adults simply requires that a person is 18 years or over. To make an application they nominate a sex descriptor — male, female or any other sex. The application must include a statutory declaration. We rely on statutory declarations for so many important things in our life, particularly legal matters, and of course to make a false statutory declaration can lead to a charge of perjury. This is no light document. A statutory declaration is not something that should just be considered as lightly included in the legislation. This also must be accompanied by a supporting statement made by an adult who has known the person for at least 12 months.

It is extremely important that children are covered by this bill because not having the expression of their gender through their birth certificate can lead to an incredibly difficult time and undermine their self-worth. It could prevent them from enrolling in a school or filling out a particular job application, and certainly there have been instances of children having to change schools in order to live their affirmed gender because they cannot change their birth certificate. This is unjust, and so in this bill the parents may nominate a sex descriptor, the child must consent to the alteration of the record of the child's sex to the sex descriptor nominated in the application, the parent must believe on reasonable grounds that the alteration is in the best interests of the child, and there must be a supporting statement from a relevant person such as a doctor or registered psychologist that the relevant person's opinion is that the alteration of the record of the child's sex is in the best interests of the child. I also understand that for children under 16 years of age there must be a statement in terms of the child having the capacity to consent to the alteration.

There are provisions in the bill to provide for where there is a difference of opinion between parents, and I believe that is a referral to the County Court, which can make that decision. We have been assured in our discussions with the government that there will be funding and resources put in place for a peak body or advocacy group to be able to provide legal representation for children in these matters.

There are provisions for applications by prisoners where approval must be supported by the Department of Justice and Regulation. We do note, however, that in the case of a person under parole it is the parole board which is required to give that approval. We ask why it is the parole board and not the secretary in that instance. We believe the secretary still has responsibility for that prisoner even when they are under parole, so that is a question we need answered. But overwhelmingly it is absolutely critical that this bill passes, and I hope the coalition will do the work to ensure that the bill passes the upper house.

I acknowledge all those who have worked so hard on behalf of your communities to bring about this change. That hard work should be rewarded by members in this place for all the work you do not just on this legislation but all the work you do supporting the members of your community. I certainly commend the government for listening to the community and getting this legislation right.

I also feel there are further reforms that we do need to take in this area, particularly in regard to the Equal Opportunity Act 2010 and removing the exemptions in that act that still allow for discrimination on the basis of someone's gender identity. There is a bill before Parliament this week that makes some changes to the application of the inherent requirements test — and I will speak further to that bill when it arises — but I believe that legislation can go further and I will be moving amendments to do that. We certainly need to be updating the definition of gender identity in the Equal Opportunity Act, which is somewhat outdated and inaccurate, and we also need to include intersex as one of the protected attributes for which people cannot be discriminated against.

Another issue that I have been made aware of during the campaigning of Senator Janet Rice, our federal Greens LGBTI spokesperson, is the need for reform so young people are not forced to go to the Family Court in order to get stage 2 hormone treatment, which is costly and a time-consuming process and which puts the mental health of children at risk. So there is further work to do, but we certainly support the bill. We have supported the self-determination of birth certificates going into this Parliament, we congratulate all those who have worked to get this bill to this Parliament and now I feel the onus is on the members of this Parliament — given all the hard work that has gone on out in the community to come to this point — to do the hard work to make sure the bill passes this house and the other house and becomes reality.

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Sam Hibbins MP
Member for Prahran
14 September 2016




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