Lesbian, Gay, Bisexual, Transgender and Intersex Law Reform

Lesbian, Gay, Bisexual, Transgender and Intersex Law Reform

(Matter of Public Importance, 18 November 2015, Legislative Assembly, NSW Parliament)

New South Wales has come a long way towards LGBTI equality through a multi-partisan approach to law reform.

But discrimination in a number of fields remains lawful which sanctions community discrimination and has personal impacts.

Tonight I speak of the urgent need for specific reforms for the trans* and intersex communities.

A growing body of evidence shows significantly higher rates of mental health problems among trans* people, including for anxiety, depression, substance abuse and self-harm. The recent Curtain University ‘First Australian National Trans Mental Health Study’ found that 57 per cent of participants had been diagnosed with depression at some point in their lives –four times that of the general population. One in five participants reported suicidal ideation or self-harm on at least one day in the two weeks prior.

While there are fewer studies into mental health that identify intersex status, international studies and anecdotal evidence point to high rates of poor mental health, suicide and self-harm.

Stigma, discrimination, isolation and exclusion all contribute to poorer mental health outcomes in these communities.

The Human Rights Commission report on Sexual Orientation, Gender Identity and Intersex rights identified extensive reforms needed to remove state sanctioned discrimination of trans* and intersex communities. 

The report recommended removing barriers to trans* people updating the sex or gender marker on State documentation.

This is a serious problem because having incorrect and inconsistent documentation forces trans* people to repeatedly explain the deeply personal situation of their transition, subjecting them to judgement, discrimination and stigma.

A trans* person can’t update the sex on their birth certificate if they are married, forcing many to choose between divorcing a loving and supporting spouse and having the correct sex on their birth certificate.

The choice is untenable and unfair: the support and stability of a loving spouse during a transition is vital and many couples do not want to divorce.

Last year I co-sponsored a bill with Mehreen Faruqui to remove forced trans* divorce provisions and hope to achieve support for this in the house in the future.

Trans* people also can’t update the sex on their birth certificate without undergoing expensive and often unnecessary surgery. Surgery is not always appropriate and it is not the most common form of sex affirmation treatment – many prefer hormonal treatment. Federal agencies do not have this requirement, instead they allow a person to change their sex on their passport with a statutory declaration from a medical practitioner, and it is time these requirements were harmonised.

Following a discussion paper process, I drafted legislation to enable a trans* person to update their birth certificate with supporting medical documentation and have secured co-sponsors from across the Parliament. I am working closely with the Attorney General’s office, which is carefully considering this bill, and I understand will conduct a consultation process.

The SOGII report recommends an end to cosmetic surgery to normalise genitals of infants born with atypical sex characteristics such as part or both male and female genitals.

The surgery is not life-saving but can have lifelong impacts such as pain, scarring, lost sexual sensation and sterilisation as well as problems if the child’s later identity differs from their surgically assigned sex. Adults can be dissatisfied with surgery later in life and I’ve asked the health minister to introduce a model of informed consent and I hope the Chief Paediatrician will be open to consideration of this.

The New South Wales Births Deaths and Marriages Register only recognises male and female despite a number of trans* and intersex people who have part or both male and female sex characteristics and don’t identify with either. Last year the High Court ruled in favour of a Redfern person named Norrie, stating that the law should recognise that sex is not binary.

I understand Births Deaths and Marriages is working with trans* and intersex communities to ensure that people who do not identify as wholly male or female have a valid option to register their sex. Any third option must not be mandatory and only available to adults to choose.

There are also provisions in the anti-discrimination act, that allow for private educational authorities to specifically discriminate against transgender students and teachers. Essentially students could be denied entry into a school or expelled solely based on their trans* status, and teachers can be fired or not hired in the first place because they are trans*.

I have drafted legislation to remove these provisions, and depending on the outcome of the Attorney General’s current review of the anti-discrimination act, I will introduce legislation in the new year.

Reforms for the trans* and intersex communities has been slow and many feel the law treats them as second class citizens. I call on the house to further progress LGBTI equality, prioritising trans* and intersex communities. 

Contribution from other MP's HERE

In reply, I thank the Attorney General and the members for Summer Hill, Newtown and Coogee for their positive contributions and respect and commitment towards the trans* and intersex communities.

I am pleased this debate has occurred just ahead of trans* remembrance day, which is this Friday.

While we have come a long way on LGBTI reforms, progress has been particularly slow for trans* and intersex communities.

Both groups have poor mental health and this can be partly attributed to stigma and exclusion of their communities, including within the law.

Many trans* people don’t have the basic right to a correct birth certificate.

This is well recognised as a human rights issue by the Human Rights Commission, the World Health Organization and Amnesty International.

In fact Amnesty International points out that the barriers to obtaining a correct birth certificate “stigmatise and restrict the ability of transgender people to obtain legal and social recognition of their identity”.

The reality is that many trans* people transition without surgery but laws prevent State documentation from reflecting this. As a result, our state registers are incorrect.

Where trans* people have had surgery, they still can’t update their birth certificate if they are married: the law forces them to divorce or live with incorrect documentation.

Many married people support each other when one spouse transitions and the law should protect such relationships while respecting the need for people to have correct documentation.

The Norrie case shows how our strict rules for registration exclude people who do not identify with neither male nor female. Some people, be they trans* or intersex have both male and female characteristics and I am pleased the High Court recognised this. I welcome work by Births Deaths and Marriages to provide an option for these people.

I hope that soon our Births Deaths and Marriages register will be able to reflect the reality of all trans* and intersex communities rather than set unrealistic and exclusive criteria.

Forced cosmetic surgery to normalise genitals of infants born with atypical sex characteristics is also a human rights issue. Such surgery can be delayed to a time when a person is old enough to understand its implications. Informed consent is supported by the Australian Human Rights Commission, the World Health Organization, the Australian Senate Committee on Community Affairs and the Council of Europe.

If the government is not going to ban the practice, it must start assessing international research and conduct its own on adults who have experienced cosmetic surgery as infants.

I again thank all members for their contribution and look forward to future reforms to extend all protections of the law to trans* and intersex communities.

Let's work together to celebrate and protect our great city!