‘No South Australian should face discrimination’: Passage of Statutes Amendment (Gender Identity and Equity) Act 2016

The Statutes Amendment (Gender Identity and Equity) Act 2016 passed the South Australian Parliament with broad support and received Royal Assent on 4 August 2016. The Act will come into force at a later date. The Act amends various statutes ‘to remove discrimination against lesbian, gay, bisexual, transgender, intersex and queer South Australians’.

The Act closely draws upon the comprehensive Audit Report, Review of Legislative or Regulatory Discrimination, released in September 2015 as part of its important wider reference in this area by the independent South Australian Law Reform Institute based at the Adelaide University Law School. The Audit Report is available on the Institute’s webpage.

The Institute welcomes the passage of this Act. As the Premier, the Hon Jay Weatherill, said in Parliament on 4 August 2016 in explaining the context, background and intention of the Act:

Lesbian, Gay, Bisexual, Transgender, Intersex and Queer (LGBTIQ) people around the world continue to face wide ranging discrimination because of their sexual orientation and gender identity. Unfortunately, this discrimination means many LGBTIQ people feel unsafe, undervalued and isolated. All South Australians deserve to live their lives free from discrimination. That is why, in 2015, the Government began the process to identify and remedy discrimination LGBTIQ people face due to our state laws. This commitment was announced at the Opening of Parliament in 2015. In that speech, the Government indicated that the South Australian Law Reform Institute would be asked to review all South Australian laws to identify discrimination on the grounds of sexual orientation, gender, gender identity and intersex status.

The South Australian Law Reform Institute completed its review and released its findings in an Audit Report on 10 September 2015. This comprehensive review identified more than 140 pieces of South Australian legislation that discriminates on the grounds indicated above. In addition, the South Australian Law Reform Institute made a series of recommendations to redress this discrimination. These recommendations included action that could be enacted immediately. I proudly introduced the Statutes Amendment (Gender Identity and Equity) Bill 2016 in Parliament this year to implement recommendations made in the South Australian Law Reform Institute’s Audit Report

No South Australian should face discrimination and much more is required to ensure every area of discrimination is erased, and that as a community we celebrate the rich diversity amongst us. Our fellow LGBTIQ South Australians are valued members of our community and it is my aim to ensure that like their peers, LGBTIQ people feel valued, safe and are given every opportunity to thrive in South Australia. It is hoped that these reforms will help to achieve this outcome.

The September 2015 Audit Report was the first component of the important reference provided by the State Government to the Institute to identify and examine how South Australian laws operate to discriminate against individuals and families on the grounds of sexual orientation, gender, gender identity, or intersex status.

The Audit Report made various recommendations for immediate reform, including interpretive changes to legally recognise trans and intersex individuals, changes to the terminology used in equal opportunity legislation, clarifying rules around access to artificial reproductive treatment for same sex couples and removing the ban on same sex couples being considered as prospective adoptive parents.

The Act implements most, though not all of the Audits Report’s recommendations for immediate reform. Among the Act’s key changes is the replacement of the now obsolete terminology – ‘chosen gender’ – with the term ‘gender identity’ in a range of laws, including the Equal Opportunity Act 1984 (SA). This change recognises that for many gender diverse or trans South Australians, gender is an integral part of their self-identity, not something they have ‘chosen’ for a temporary period.  The terminology in the Act also better aligns the South Australian anti-discrimination regime with the Commonwealth regime and that in force in other States.  The Act also removes gendered language (eg ‘wife’, ‘husband’)  where gender neutral language is equally appropriate (eg ‘partner’), and removes unnecessarily gendered assumptions from South Australian laws.

The Act does not implement the full range of the Institute’s Audit Report recommendations.  For example, the Act does not include ‘intersex status’ as a protected attribute under the Equal Opportunity Act 1984 (SA).  The Institute recommended that the term ‘intersex’ be included within South Australian laws, to improve awareness of the lived experience of people born with intersex variants and to protect them and their families from unlawful discrimination.  While there are very few people who have direct experience with intersex variants in South Australia, the lack of legal protection for their rights was highlighted in the Institute’s Audit Report, and its subsequent report on Legal Recognition of Sex and Gender in South Australia.

The Audit Report identified five areas that required further review prior to issuing any recommendations to the Government, namely registration and recognition of sex, gender and gender reassignment; equal recognition of relationships and parenting rights; surrogacy; exemptions under the Equal Opportunity Act 1984 and the operation of provocation in South Australia. The Institute has now released its reports in all of these areas except provocation.

The Institute expresses its gratitude to all the parties, especially from the LGBTIQ communities, who generously contributed to this important reference.


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