Thursday, 15 August 2019

The DEPUTY PRESIDENT (18:04): I have another message from the Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Births, Deaths and Marriages Registration Act 1996 to provide for a person to alter the record of a person’s sex in the person’s birth registration and to further provide for the issuing of a document acknowledging a person’s name and sex, to make consequential amendments to the Children, Youth and Families Act 2005, the Corrections Act 1986, the Serious Offenders Act 2018 and the Sex Offenders Registration Act 2004 and for other purposes’.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (18:05): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Ms MIKAKOS: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (18:06): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Births, Deaths and Marriages Registration Amendment Bill 2019.

In my opinion, the Births, Deaths and Marriages Registration Amendment Bill 2019, as introduced to the Legislative Council, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill amends the Births, Deaths and Marriages Registration Act 1996 to remove a requirement for an applicant seeking to alter the sex recorded in their Victorian birth registration to have undergone sex affirmation surgery. Instead, the Bill allows an adult to apply to the Victorian Registrar of Births, Deaths and Marriages (the Registrar) to alter the sex recorded in their birth registration by way of a statutory declaration that the person believes that their sex is as nominated in the application, and which is accompanied by a supporting statement from an adult who has known the applicant for at least 12 months. The applicant must nominate the description of the sex to be used on their birth record, which may be ‘male’, ‘female’ or any other gender diverse or non-binary descriptor nominated by the applicant. This means a person will be able to describe their sex in a way that reflects their identity.

The Bill introduces a new process to allow the parent(s) or guardian of a child to apply to the Registrar to alter the sex recorded on the child’s Victorian birth registration. This process will be restricted to children with the capacity to consent to the alteration. Children aged 16 and 17 years old will be presumed to have that capacity.

The Bill allows the Registrar to issue a document acknowledging the sex of an adult or child whose birth is registered outside of Victoria, if they have lived in Victoria for at least a year.

In addition, the Bill amends the Children, Youth and Families Act 2005, the Corrections Act 1986, the Serious Offenders Act 2018 and the Sex Offenders Registration Act 2004 to require detainees in youth justice facilities, prisoners, prisoners on parole, offenders or registered sex offenders to comply with an approval process before making their application to alter the sex recorded in their birth registration, or for a document acknowledging their sex. The approval process is similar to the approval process for change of name applications.

The Bill amends the Births, Deaths and Marriages Registration Act and the Corrections Act to allow the Secretary of the Department of Justice and Community Safety to obtain information from the Registrar about all alterations of the record of sex of a prisoner or all of the documents issued acknowledging the sex of the prisoner where this is reasonably necessary for the purposes of the administration of the corrections legislation or for the purpose of the provision of services related to the health of the prisoner.

The Bill also amends the Births, Deaths and Marriages Registration Act to allow the Registrar to provide written notice that a document has been issued to the Registrar in the state or territory where the birth of the person, the subject of the document, is registered.

Human Rights Issues

Right to equality and the protection of families and children

Section 8 of the Charter provides that every person has the right to enjoy their human rights without discrimination, is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. Discrimination under the Charter means discrimination on the basis of an attribute set out in section 6 of the Equal Opportunity Act 2010, including gender identity, marital status or sex.

Section 17 of the Charter provides that families are the fundamental group unit of society and are entitled to protection and that every child has the right, without discrimination, to such protection, as is in their best interests and is needed by reason of their being a child.

New sex descriptors

New section 30A(2), inserted in the Births, Deaths and Marriages Registration Act by clause 8 of the Bill, and new section 30E(2), inserted by clause 10 of the Bill, allows a person to nominate a sex descriptor to describe their sex in their birth registration or document respectively. A sex descriptor may be ‘male’, ‘female’ or any other descriptor nominated by the applicant. This means a person will be able to describe their sex in a way that reflects their gender diverse or non-binary identity. This new additional category promotes the right to equality of trans and gender diverse people because it allows a person to use a description of their sex that is the most appropriate and meaningful to them. This description will be recorded in their birth registration, and be what is shown on their birth certificate.

Removal of barriers to acknowledging a person’s sex on their birth record

Currently, a person wanting to alter the sex recorded in their birth registration must have undergone sex affirmation surgery.

Sex affirmation surgery is a serious medical procedure that involves the alteration of a person’s reproductive organs. For some people who identify as a sex that is different from that recorded in their birth registration, such surgery is not an option because the person has a medical condition or disability that prevents the surgery being undertaken, or because the surgery is unaffordable, not easily accessible or even available where the person lives. Further, some people who identify as a sex different from that recorded in their birth registration do not wish to undergo surgery. The surgery requirement applies regardless of other ways in which the person may live in their affirmed gender identity.

New section 30A in clause 8 of the Bill removes the current requirement to have undergone sex affirmation surgery. New section 30E in clause 10 of the Bill similarly removes these requirements for a person whose birth is registered in a place other than Victoria, in order to apply for a document that acknowledges their sex in accordance with their nominated sex descriptor.

In removing this unnecessary barrier, the Bill promotes the right to equality and makes it easier for trans and gender diverse people to alter their birth record in a way that recognises the inherent dignity and autonomy of a person. It also promotes the right to privacy which seeks to protect personal and social individuality and identity, encompassing physical and psychological integrity.

The new process for applying to alter the record of sex in a birth registration does not require a person to show medical evidence of gender transition or confirmation by a medical professional as to the person’s sex: such requirements would inappropriately medicalise the person’s sex or gender identity, and undermine the person’s own statements about their sex or gender identity. Instead, the new process is primarily based on the person’s self-declaration as to their sex. The equality rights of persons with disabilities may also be promoted by these changes, as some medical conditions preclude persons from undertaking sex affirmation surgery.

New process for acknowledging a child’s recorded sex

New sections 30B and 30BA, inserted by clause 8 of the Bill, introduce a process for the parent(s) or guardian of a child to apply to alter the sex recorded in the child’s birth registration. New sections 30EA and 30EB, inserted by clause 10 of the Bill, introduce a process with the same requirements for the parent(s) or guardian of a child whose birth is not registered in Victoria, but who has lived in Victoria for at least 12 months, to apply for a document acknowledging the child’s name and sex in accordance with the nominated sex description.

In both cases, an application cannot be made unless the child consents to the application and the child must have the capacity to consent to the alteration. As for adults, clauses 8 and 10 of the Bill provide for the nomination of a sex descriptor of the child’s choice. The introduction of these new processes for altering a child’s recorded sex, where previously there were no mechanisms for doing so, promotes the right to equality and the protection of trans and gender diverse children by allowing them to alter the sex recorded in their birth registration in a way that is appropriate and meaningful to them.

However, the Bill may also limit the right to equality of children and the right to protection of children by: providing for a special approval process to alter a child’s recorded sex that is different to the process for adults; providing a more restrictive application process for children under 16 than for those aged 16 and 17 years old; and requiring minors to obtain parental approval for altering their recorded sex. In my opinion, any such limitation is reasonable and justified for the protection of families and children in accordance with section 7(2) of the Charter.

The Bill introduces a special approval process to alter a child’s recorded sex by requiring a relevant person, being a doctor, registered psychologist or a person in a prescribed class of persons, to make a supporting statement affirming that in their opinion the application is in the best interests of the child. Although this requirement makes the application process for children more restrictive than for adults, it provides an important independent safeguard of the child’s general health and wellbeing, and takes into account the particular vulnerabilities of children. I therefore consider that it strikes a balance between the rights of the child to equality and their right to such protection as is in their best interests, and is needed by reason of their being a child under section 17(2) of the Charter.

Children aged 16 and 17 years old are presumed to have the capacity to consent to an application to alter their recorded sex. This presumption means that the application process for children under 16 years of age is different than those for children aged 16 and 17. Unlike children aged 16 and 17, children under 16 years of age must have their individual decision-making capacity assessed by a relevant person to ensure that they have the capacity to consent to the application being made. This variation recognises that children aged 16 and 17 generally have the maturity to understand the meaning and consequences of altering their recorded sex. A different process for children aged under 16 than for those aged 16 and 17 is therefore appropriate in recognition of this variation in capacity. In my view, there is no less restrictive means available to ensure that the rights of children who have different decision-making capacities are protected in this context.

The application process for altering the child’s recorded sex is also more restrictive than that available for adults in that the application must be made by a child’s parent(s) or guardians on their behalf. I consider that this process strikes an appropriate balance between the rights of the child to equality, and the protection of families under section 17 of the Charter, by preserving the rights of parents to make decisions in the best interests of their child and recognising the variations in capacity between children of different ages and children and adults.

In recognition of the fact that parents might disagree as to what is in their child’s best interests, new section 30BB, inserted by clause 8 of the Bill, and new section 30EC, inserted by clause 10, provide a mechanism for one parent or guardian to make an application to the County Court for an order to approve the alteration of the child’s recorded sex if the Court is satisfied that the alteration is in the child’s best interests. Where neither the parents, nor a guardian, make an application on behalf of the child, despite the child’s request for an application to be made, the matter would need to be resolved through the Family Court. New section 30C(3)(a), inserted by clause 9 of the Bill, would allow the Registrar to alter the record of the child’s sex if the Family Court has ordered that the record be altered. In my view, there is no less restrictive means available to ensure that the rights of families, children and the right to equality are all respected.

Right to privacy

Section 13 of the Charter provides that a person has the right to not have their privacy unlawfully or arbitrarily interfered with.

Change to process for acknowledging recorded sex

Both clauses 8 and 10 of the Bill remove the requirements that a person must have undergone sex affirmation surgery in order to apply to alter the sex recorded in their birth registration, or for a document acknowledging their name and sex. The Bill therefore promotes the right to privacy, as a person seeking to alter their recorded sex will no longer be required to disclose their medical history in their application. Further, the removal of the surgery requirements promotes bodily autonomy which also falls within the scope of the right to privacy.

Information sharing

New section 30K, inserted by clause 16 of the Bill, allows the Secretary of the Department of Justice and Community Safety, in certain circumstances, to obtain information from the Registrar about all of the alterations to a prisoner’s recorded sex and all documents issued acknowledging the name and sex of the prisoner.

New section 30K clearly sets out that the Registrar must only disclose information to the Secretary about a prisoner’s recorded sex upon the request of the Secretary. The interference is not arbitrary because the information that the Registrar must disclose is limited to certain information about a prisoner’s recorded sex and the request can only be made in relation to a defined class of persons who are deemed to be in the legal custody of the Secretary under part 1A of the Corrections Act.

Furthermore, the Secretary will only be able to make a request for this information where the request is reasonably necessary for the administration of Corrections legislation, as defined in section 104ZX of the Corrections Act, or for the purpose of providing services related to the health of the prisoner. Requests for information about alterations to the prisoner’s recorded sex in their birth registration may be required for the management, supervision or transfer of prisoners in the Secretary’s custody. Such information might be required, for instance, to ensure the safety of trans or gender diverse prisoners, or to determine whether a person should be considered an at-risk prisoner in need of special protective measures.

Further, the information disclosed under new section 30K to the Secretary would come within the meaning of ‘personal or confidential information’ in part 9E of the Corrections Act and would be subject to the provisions of that part providing for the use and disclosure of that information only in prescribed circumstances.

New section 30FA, inserted by clause 12 of the Bill, provides that the Registrar has the power to provide written notice to another Registrar that a document has been issued. The interference with privacy is lawful because it is clearly set out in the Bill and it is not arbitrary because it relates only to providing notice in the specific circumstances where a document has been issued and only to the Registrar in the state or territory where the birth of the person, the subject of the document, is registered.

The purpose of sharing this information with another Registrar is to ensure the integrity of all state and territory registers for births, deaths and marriages, as a person who has altered their recorded sex could potentially have different identity documents. Written notice of the acknowledgement document offers the best identity security protection, enabling the Registrar of the state or territory where the person’s birth is registered to appropriately note the name and sex of the person as recorded in the document.

I therefore consider that any interference under the Bill with a person’s privacy is lawful and not arbitrary and is therefore compatible with the Charter.

The Hon Gayle Tierney MP

Minister for Training and Skills

Minister for Higher Education

 Ms MIKAKOS (Northern Metropolitan—Minister for Health, Minister for Ambulance Services) (18:06): I move:

That the second-reading speech be incorporated into Hansard.

Motion agreed to.

Ms MIKAKOS: I move:

That the bill be now read a second time.

Incorporated speech as follows:

Before this Government had begun its first term, we committed to putting equality back on the agenda after four years of regression, particularly for lesbian, gay, bisexual, trans and intersex—LGBTI—Victorians. It is with great pride that we can say that promise was kept with achievements including the first Minister for Equality, adoption equality, an historic apology for historical convictions for homosexual sex, the establishment of the first Gender and Sexuality Commissioner and the now under-construction Pride Centre.

It is a list, however, that sadly remains incomplete. In the last Parliament, the government introduced similar reforms by way of the Births, Deaths and Marriages Registration Amendment Bill 2016. That legislation was defeated by a single vote in the other place leaving trans and gender diverse Victorians to continue to be subject to unfair and unnecessary barriers to obtaining documentation that reflects who they truly are.

As a government, we will continue the work of creating a fairer Victoria by eliminating discrimination in our laws and respecting the diversity inherent in our state. The Births, Deaths and Marriages Registration Amendment Bill 2019 (the Bill) is an important part of this broad equality agenda.

Though in that pursuit, we should not become complacent and forget that opposition remains. While many of us here, in the other place and across Victoria recognise the importance of advancing equality, it is not a universal belief across the political spectrum. While we continue in our efforts, we must not forget how hard the LGBTI community and their allies have fought and how the advancements we have made must continue to be protected.

The inability for trans and gender diverse people to have an accurate birth registration, which truly reflects their identity, means that high barriers continue to be thrown up against them in their daily lives. As a result, organisations and institutions may query the person’s sex by asking inappropriate and intrusive questions, for example when providing a service or amending documentation such as bank accounts, insurance details, credit cards, and university records. In some circumstances where there is a lack of understanding, it may lead to appropriate care and services not being provided.

While the government is pleased that in 2018, in response to legislative changes brought about by marriage equality, the unfair “forced divorce” requirement was removed from the Births, Deaths and Marriages Registration Act 1996 for people seeking to alter the sex recorded on their birth registration, we remained committed to reintroducing the 2016 reforms to remove other unnecessary barriers.

The Bill, which reflects that commitment, was developed in consultation with LGBTI communities. I am grateful for their assistance in developing a Bill that will improve the legal recognition of trans and gender diverse people in Victoria.

The Bill amends the Birth, Deaths and Marriages Registration Act to set out a new process for a person to alter the sex recorded in their birth registration without first having to undergo sex affirmation surgery. Sex affirmation surgery is a serious and invasive surgical procedure that involves a number of health risks, is not covered by Medicare, and not always available in Australia. This requirement also inappropriately medicalises the recognition of a person’s affirmed gender, sending a harmful message to trans and gender diverse people that there is something wrong with them that needs to be “fixed”. Growing numbers of trans and gender diverse people do not feel the need for medical transition.

The Bill’s amendments mean that a person can apply to have their recorded sex altered on the basis of the person’s own declaration and in accordance with a description of their sex that is appropriate and meaningful to them. By removing the requirement to have undergone sex affirmation surgery, the Bill promotes the right to equality in the Charter of Human Rights and Responsibilities.

The application process for adults

The Bill introduces a new application process for adults to alter the record of sex in their birth registration in a way that provides an appropriate level of legal formality, while promoting the dignity and personal autonomy of applicants. The applicant must make a statutory declaration nominating the sex to be recorded in their birth registration. Their application must include a statement from another adult who has known the applicant for 12 months or more, who believes the application is made in good faith and supports the application.

The Bill allows the applicant to nominate a sex descriptor of their choice to describe the sex on their birth record. A sex descriptor may be ‘male’, ‘female’ or any other descriptor chosen by the applicant to recognise their gender diverse or non-binary identity. This new additional category is not limited by the Bill and will allow a person to describe their sex in a way that reflects their identity. This choice is important because a list of descriptive terms to describe a person’s sex in their birth registration has not otherwise been widely agreed within the general community. This approach is consistent with that of the Australian Bureau of Statistics, which allows counting of persons who are male, female or ‘other’. The category of ‘other’ can be further described in a way that is specified by the applicant. In addition, in the most recent Commonwealth census, people who do not identify as either male or female had the option of identifying as ‘other’, with such identity able to be specified in the way chosen by the person completing the census.

The only limitation on the use of sex descriptors in the Bill is a discretion for the Registrar to refuse to register a descriptor that is obscene or offensive, or cannot practicably be established by repute or usage.

The Bill similarly provides for a person, whose birth is registered in a place other than Victoria, but has lived in Victoria for at least a year, to apply for a document that acknowledges their nominated sex.

The application process for children

Unlike all other Australian states and territories, Victoria currently has no statutory process for a child to alter the sex recorded in their birth registration. In recognition of the fact that many young trans and gender diverse people are capable of expressing a strong gender identity, the Bill also introduces an application process for a child’s record of sex to be altered in their birth registration. Similar to the process for an adult, a child would not be required to undergo treatment and a sex descriptor of their choice must be nominated in the application.

The application would be made on behalf of a child by their parents or guardian (or in particular circumstances one parent may make the application on the child’s behalf). The application must include a statutory declaration from the parents or guardian of the child stating that they believe on reasonable grounds that altering the sex recorded in the child’s birth registration is in the best interests of the child.

An application cannot be made unless the child consents to the application. Where the child is under 16 years of age, the application must include an assessment by a doctor or registered psychologist (or prescribed person) that the child has the capacity to consent to the application. All applications on behalf of a child must include a statement from a doctor or registered psychologist (or prescribed person) that the alteration is in the child’s best interests. These are all important independent safeguards of the child’s general health and wellbeing that recognise the different decision-making capacities of children and their ability to understand the outcomes of their decisions. A child aged 16 or 17 will be presumed to have the necessary legal capacity.

The Bill similarly provides for the parents or guardian of a child, whose birth is registered in a place other than Victoria, but who has lived in Victoria for at least a year, to apply for a document that acknowledges the child’s nominated sex.

Approval process for people subject to detention or supervision orders to make an application

The Bill will provide additional checks and safeguards in respect of applications by people (both adults and juveniles) in detention or under supervision who wish to make an application to alter their recorded sex. The additional conditions are very similar to those that currently apply in relation to the change of name process. The approval process provides for the relevant supervising authority to consider the application with regard to its reasonableness, necessity and other relevant considerations including security or the safe custody or welfare of the person or any other person.

Responding to concerns

The Parliamentary debate on the Bill in 2016 demonstrated a disappointing lack of understanding and acceptance by certain Members of Parliament of the difficulties faced by trans and gender diverse Victorians in our community. Trans and gender diverse people are not some abstract, hypothetical category in a text book: they are your parents, your children, your siblings, your friends and your work colleagues.

Misguided concerns were raised that the proposed reforms put women’s safety at risk, for example in domestic violence shelters, change rooms and toilets. The government takes concerns about women’s safety seriously but makes it very clear that these concerns are not supported by the evidence. Women have nothing to fear from these reforms.

In reality, trans and gender diverse people are at higher risk of facing harassment or violence in receiving services or using facilities if they are forced to use those that are not appropriate to their affirmed gender.

In practice, and regardless of the Bill, Victorian service providers already endeavour to respond to the needs of trans and gender diverse people who wish to access particular services that might have been established for a single sex.

Conclusion

This Bill is about giving trans and gender Victorians a basic right—a birth certificate which reflects who they truly are. It enables more adults who want to alter their recorded sex to do so without having to undergo invasive surgery, and enables children to have a birth certificate that reflects their affirmed gender identity. Together these amendments promote the right to equality and privacy in the Charter of Human Rights and Responsibilities. The Bill recognises the inherent dignity and autonomy of a person applying for a new birth certificate that is most appropriate and meaningful to them.

I commend the Bill to the house.

 Mr ONDARCHIE (Northern Metropolitan) (18:06): I move, on behalf of my colleague Mr O’Donohue:

That debate on this matter be adjourned for one week.

Motion agreed to and debate adjourned for one week.