Making SA a leader in equality again
South Australia is no longer a leader in protecting the community against discrimination, particularly in the area of gender diversity. However, writes Sarah Moulds, detailed work by the Law Reform Institute could help us regain that mantle.
Imagine being unable to correct official records to reflect who you really are, or not being recognised as the legal parent of your child.
Imagine being refused the right to be noted on your partner’s death certificate, or dismissed from the job you love because of the person love.
Imagine having to undergo expensive, and potentially dangerous sex alteration surgery, and then having to get a court order just to prove that you are serious about your own identity.
Unfortunately, these are just some of the real life accounts that the South Australian Law Reform Institute has heard from South Australians and their families as part of its work.
In 2015 the South Australian Attorney General asked the institute, an independent law reform body based at the University of Adelaide’s Law School, to undertake a detailed review of all South Australian laws to identify areas of discrimination on the grounds of sexual orientation, gender identity and intersex status, and to make recommendations to the Government about how to best reform those laws.
The institute so far has found more than 140 laws that potentially discriminate on these grounds, and some that are having a seriously detrimental impact on the lives of lesbian, gay, bisexual, transgender, intersex and queer South Australians and their families.
The laws of most significant concern relate to the type of things many of us take for granted, such as the sex that appears on our birth certificate, or the right to have our relationships legally recognised, regardless of our living arrangements. They also relate to the legal framework to protect against unlawful discrimination, and the exceptions to these rules to recognise other important rights, such as freedom of religion.
Under the proposed reforms, a person could indicate their sex or gender as ‘other’ and then describe their own gender identity in their own words.
Having handed down an Audit Report to the State Government in September last year, the institute is now in the process of making more detailed recommendations with respect to a number of key areas, such as sexual reassignment and registration of sex and gender, surrogacy, a relationships register, and the impact of exceptions granted under the Equal Opportunity Act 1984.
When doing this work, the institute has been keen to hear from those who have experienced discrimination as well as others who may be impacted by these laws, or who are responsible for making them work. The institute has also considered international best practice and looked to see what is happening elsewhere in Australia to address these issues.
This has led us to conclude that despite its strong history as a leader in promoting equality and protecting against discrimination, South Australia is no longer at the front of the pack when compared with many other Australian jurisdictions and comparable overseas jurisdictions.
However, this work has also identified a range of sensible, balanced models for reform that could work well in South Australia.
The institute’s most recent work is a good example. It concerns the way that sex and gender is recognised under South Australian law, and focuses on the registration of sex and gender on the Births, Deaths and Marriages Register.
Currently, there are only two choices for registration of sex: male or female. Once registered there is no way to change your sex, unless you undergo what is likely to be irreversible and invasive sexual reassignment treatment by a doctor authorised by the Minister, and then seek confirmation from a court that your sex has been sufficiently reassigned. Similarly, there is no way for parents of a child born with intersex variants to indicate anything other than male or female when registering the birth of the child, or to take the time they may need to understand the full implications of any medical intervention being considered.
This is causing real harm to the health and wellbeing of gender diverse South Australians and may undermine the human rights of children born with intersex variants. It also results in a system that fails to recognise some people’s authentic gender identity.
The strange thing is, though, that to change your name from Mary to Max you do not have to jump through any of these hoops. You simply make a formal application to the Registrar, who can check that there is no evidence of fraud and who can take steps to ensure your identity, and with that the law will then recognise your new name. Nor do you need evidence of sexual reassignment treatment to change your sex on your Australian passport, or to indicate ‘x’ as your preferred declaration.
The institute has looked at the evidence of discrimination, and the models for reform that work well elsewhere, and has developed a set of recommendations that would allow an adult to change their registered sex in the same way that they can change their registered name. Under the proposed reforms, a person could indicate their sex or gender as ‘other’ and then describe their own gender identity in their own words.
These reforms would have the same safeguards about fraud and identity as the present change of name scheme, and further safeguards to ensure that an application by a child is determined with regard to the best interests of the child. They would also align with the Australian Bureau of Statistics’ proposed new protocols for collecting information about sex and gender.
If adopted, these reforms would bring South Australian law into the 21st century and reflect modern understanding of gender diversity. These reforms would not impact many South Australians, but for some, they could finally ensure that the law recognises them for who they truly are.
You can also have your say on the exceptions to South Australia’s anti-discrimination laws at yourSAy.
Sarah Moulds is a researcher with the SA Law Reform Institute and a PhD student in Law at the University of Adelaide.