Law Reform Institute’s recommendations enacted into law

On 15 December 2016, three important Acts that enhance the rights of gay, lesbian, bisexual, trans, intersex and queer (LGBTIQ) South Australians received Royal Assent after passing the South Australian Parliament. These laws implement some of the key recommendations made by the South Australian Law Reform Institute as part of its major reference to review South Australian laws that discriminate on the grounds of sexual orientation, gender, gender identity and intersex status.

The Institute’s Director, Professor John Williams, welcomed the new Acts. ‘These new laws represent a major advance in removing discrimination against LGBTIQ South Australians.’

The Relationships Register Act 2016 is one of the three new Acts. This law provides a clear legal pathway for all couples, regardless of their gender or sexual orientation, to have their relationships legally recognised. It means that both heterosexual couples and non-heterosexual couples will no longer be required to meet the sometimes complex evidentiary tests that are currently required before a couple is recognised as a domestic partnership. It also provides an avenue for marriages in certain overseas jurisdictions to be recognised as registered relationships in South Australia, regardless of the sexual orientation of the couple. It makes it clear that couples in a registered relationship will be recognised as a legal couple for the purpose of medical emergencies, death certificates and more.

The Relationships Register Act 2016 also recognises and introduces protection for intersex South Australians from discrimination. The Act invests the Equal Opportunity Commission with the power to issue Guidelines to help businesses, schools, community groups and individuals comply with the Equal Opportunity Act 1984 (SA). These features of the Act reflect various recommendations of the Law Reform Institute in its Rainbow Families report.

Another new Act is the Adoption (Review) Amendment Act 2016. This Act highlights the best interests of the child and changes the law that excludes non-heterosexual couples from eligibility to adopt in South Australia. The new law allows any two people who are living together in a marriage or marriage-like relationship to jointly adopt children. This law reflects some of the recommendations made by the Institute in its 2015 Audit Report and also the findings made in the South Australian Department of Education and Child Development’s 2015 Review of the Adoption Act 1988 (SA).

The final new Act is the Births, Deaths and Marriages Registration (Gender Identity) Amendment Act 2016. This Act supports transgender people to take legal steps to ensure that their birth certificate reflects how they look and live their lives. Under the new Act, people can apply directly to the Births, Deaths and Marriages Registrar to have their sex or gender changed. The new Act repeals the outdated Sexual Reassignment Act 1988. While evidence of some treatment will be required to support an application, the new law will not require transgender people to undergo unnecessary medical surgery or to divorce their husband or wife to have their true gender recognised. The new law also simplifies access to a new gender marker for individuals born with intersex traits.

This Act reflects some of the key recommendations made by the Institute in its Report on Legal Recognition of Sex and Gender and also draws on the South Australian Parliament’s Legislative Review Committee’s Inquiry in the Sexual Reassignment Repeal Bill 2014.

A further Bill that seeks to implement some of the Institute’s key recommendations is making its way through Parliament. If enacted, the Statutes Amendment (Surrogacy Eligibility) Bill 2016 will provide equal access for heterosexual and non-heterosexual couples to access assisted reproductive treatment and surrogacy arrangements. Following parliamentary debate, this Bill was amended in the Legislative Council and will be returned to the House of Assembly for further debate in 2017.

The Institute’s Senior Project Officer, Sarah Moulds, highlighted the importance of these news laws and the role of consultation in the Institute’s work.

‘Having undertaken, during its reference, extensive consultation, especially with the LGBTIQ community, and reflected the results of that consultation in its Reports and recommendations, the Institute is pleased to see these findings and recommendations reflected in these important new Acts. More work remains to be done, but these news laws are a major step towards ensuring that the law treats LGBTIQ South Australians equally and without discrimination.’

 

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