Second Reading

Resumed from 21 November 2018.

[Speeches and comments from various members]

HON ALISON XAMON (North Metropolitan) [2.41 pm]: I rise as the lead speaker of the Greens on the Gender Reassignment Amendment Bill 2018 and indicate that we wholeheartedly support this bill. It is a very short bill, which I note will come into effect 28 days after it receives royal assent. The bill will delete section 15(3) of the Gender Reassignment Act, which states that a recognition certificate cannot be issued to a person who is married, noting that a recognition certificate is conclusive evidence that a person has undergone a reassignment procedure and is of the sex as stated in the certificate. Importantly, prior to December 2017, commonwealth law did not permit same-sex marriage, so the effect of this has been that a married person who reassigns their gender and thereby effectively makes their marriage a same-sex marriage has had to choose between their marriage and a birth certificate that shows their reassigned gender. In December 2017, a commonwealth amendment changed the law to permit same-sex marriage. That same amendment also changed commonwealth sex discrimination laws to prohibit states and territories from refusing to change the recorded sex on a person’s birth certificate if the person is married. That change came into effect on 9 December 2018. Therefore, since that date, section 15(3) of the Gender Reassignment Act 2000 has been inconsistent with commonwealth law. Section 109 of the commonwealth Constitution states —

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Accordingly, section 15(3) is finally being deleted.

Without fail, the Greens have spoken up for the rights of all members of the LGBTIQ community. As such, we are obviously extremely supportive of this bill. I will always be pleased to speak to legislation that has the effect of removing discrimination against members of the LGBTIQ community, as this legislation does and as did the Historical Homosexual Convictions Expungement Bill, which we debated in this place last year. If I have one criticism to make of this bill, it is the time it has taken to come to the Council. We are the last state to make the necessary changes to ensure consistency with the commonwealth Marriage Act. I had hoped that this bill would make an appearance by the end of last year. I recognise that we had a lot of legislation that we were trying to get through. I would argue that some of that was not particularly time sensitive, but I acknowledge that some of it was. This is one bill that surely could and should have been introduced earlier in this place. Nevertheless, it is here now and I am very, very pleased that we are finally able to debate this piece of legislation and, I sincerely hope, see it pass. It is an important piece of legislation that is yet again being introduced to slowly work towards dismantling the legal barriers that have prevented the LGBTIQ community from being afforded the same rights as all other Western Australians.

In addition to commending the government on the bills it has introduced, I commend it for introducing two reviews that should further remove barriers and promote opportunities for LGBTIQ people. Some people have already spoken about the Law Reform Commission finalising its review on inconsistencies between WA and commonwealth law in relation to recognition of a person’s sex, change of sex or intersex status. I note that this review made a number of recommendations for further amendment of the Births, Deaths and Marriages Registration Act 1998. I acknowledge the commission’s extensive involvement in that review process with community-based advocacy organisations and other advocates; it was comprehensive. It is atestament to the commission that the recommendations in its report of that review are very considerate and I think they are achievable and would serve to deliver meaningful change to the LGBTIQ community. I hope that this excellent piece of work does indeed result in much-needed change.

The second review is one that the government only recently announced and will also be undertaken by the Law Reform Commission—a long overdue and comprehensive review of the Equal Opportunity Act. As I have spoken about before, the current act focuses on anti-discrimination measures rather than genuine promotion of equal opportunities, and they are two very different things. It prescribes certain actions but does not really address inequities. The review should look at how to put an onus on the provision of reasonable accommodation for people’s circumstances, whether it be employment, accommodation or provision of goods and services. But however much this particular review is welcome, it does not detract from the immediate need to address some of the more concerning and hideously outdated provisions within the act. I am specifically concerned about what I think are very outdated provisions within our state act around religious exemptions, noting that other states, such as Tasmania, have not had those provisions in their acts for decades and they work perfectly fine. I remind members of my bill in this place—the Equal Opportunity (LGBTIQ Anti-Discrimination) Amendment Bill— which of course would address this. It is really important we recognise that the legal barriers that exist for LGBTIQ people are very serious and serve to seriously undermine people’s human rights. The anti-discrimination bill is in line with what is being talked about more broadly within the Australian community. It is indicative of where we are at as a community. I think most people were pretty much outraged when they discovered that religious schools are legally able to make employment and enrolment decisions based on whether staff members, students and their families identify as LGBTIQ. I note what was a bit of an own goal by the anti–marriage equality proponents when they insisted on an overall review of the issue of religious exemptions, because when that happened and people became aware that these things even existed, there was general outrage within the community. Rather than being able to push what I think is a pretty hideous agenda, which many churches and religious schools do not agree with, the proponents instead chose to highlight a terribly outdated provision that a lot of people would like to see the back of.

Last year, I was very pleased to receive a letter from the Commissioner for Children and Young People, who was very supportive of changing these provisions. I will quote briefly from the commissioner’s letter —

All LGBTI children and young people have the right to be recognised for their gender identity, sexual orientation or intersex status, and to feel safe and respected wherever they are. Despite this, many LGBTI children and young people experience issues or challenges which impact on their health, safety, wellbeing, and other areas of their life.


I would like to offer my support for the Equal Opportunity (LGBTIQ Anti-Discrimination) Amendment Bill 2018 which you recently tabled in WA Parliament, and to thank you for raising awareness of this important issue.

The Commissioner for Children and Young People has also established three advisory committees of LGBTIQ young people and their peers, in Perth and at Bunbury Senior High School, to advise the commissioner’s work in this space. That is an incredibly positive move. Members of the Perth committee have described a range of experiences and systemic discrimination, including in access to education, employment, health services and accommodation, as well as very distressing stories of discrimination and harassment at an individual level within the community. The committee has specifically identified the need to improve legislative protections for LGBTI children and young people through the Equal Opportunity Act, as well as the need to ensure that LGBTI children and young people are not exposed to harmful practices in Western Australia, such as gay conversion therapy. It makes sense that the government might want to consider looking at progressing some of these reforms, sooner rather than later. The sorts of reforms that are envisaged within my Equal Opportunity (LGBTIQ Anti-Discrimination) Amendment Bill 2018 would be a good start.

Returning to the specifics of the bill before us and to wrap up my comments, I would like to pay particular tribute to my friend and colleague Senator Janet Rice, and her dearly beloved spouse of 32 years, Dr Penny Whetton, both of whom I have known for a very long time. Janet and Penny have long campaigned to uphold the rights of LGBTIQ community members. Their own lives have been deeply affected by forced divorce laws. Their experience highlights just how ridiculous the current law is. When Janet first met Penny, Penny was living as a man. The two were married and, some years later, Penny transitioned to a woman. Because Penny was married when she transitioned, she was unable to change her birth certificate without first divorcing Janet. Having to choose between remaining married and truly affirming her gender was a terrible predicament to be forced into. I have always been perplexed about this requirement. One of the reasons is that I have always understood the sanctity of a legal contract of marriage to have intended primacy. If we talk about the way that the covenant of marriage has been used, for example, to protect spouses from having to give evidence against their loved ones, it has always been recognised that marriage is the legal contract with the utmost sanctity, which needs to be protected at all costs. We talk about this all the time, yet here is a piece of legislation that effectively tries to force people into getting divorced. I think that is hideous and abhorrent. If two married people do not wish to get divorced, nothing ever makes it okay for the state to attempt to intervene and force a couple who wish to be married to be divorced. I find that abhorrent and I have always found it utterly perplexing. For that reason alone, I have always wanted to change this particular provision. It is truly despicable for the state to seek to intervene and tear apart a married couple. In Penny’s case, she chose to remain married and to put away her birth certificate. She did not use it as a means of identification. Penny and Janet loved each other and they wanted to be married. It is not the state’s place to try to tear them apart. Janet and Penny have been very generous in sharing their experiences of living together, as both a heterosexual couple and now as a same-sex couple. They are in the rare position of knowing exactly how differently society responds to people who are in a relationship that is outside the mainstream. For example, Janet and Penny said that after Penny transitioned to a woman, they now very rarely hold hands in public, knowing that if they do so, they may be subject to abuse, or worse—violence—from strangers in the street.

It is clear that discrimination has an insidious effect on people. Although the drivers of discrimination are, of course, very complex, it is completely unacceptable for the state to allow this sort of discrimination to be legal. Rights are rights, and they should apply to all. Although I am absolutely delighted this section of the Gender Reassignment Act will be removed, transgender people face myriad unnecessary hurdles in order to have their gender identity officially recognised. I will be proud to continue to work alongside the LGBTIQ community on ways in which we can best address this issue. The Greens will, of course, support the Gender Reassignment Amendment Bill 2018. It is very important. I would have preferred it to happen sooner rather than later, but I am glad the amendment is now being made.

[Speeches and comments from various members]


Question put and a division taken, the Acting President (Hon Adele Farina) casting her vote with the ayes, with the following result —

Ayes (27)

Noes (3)

Question thus passed. Bill read a second time.

[Speeches and comments from various members]

Committee interrupted, pursuant to standing orders.


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