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Justice And Related Legislation (Marriage Amendments) Bill 2018 - Second Reading

18 October 2018

Ms O'CONNOR (Clark - Leader of the Greens) - Madam Speaker, I rise to 
speak on the Justice and Related Legislation (Marriage Amendments) Bill 
2018 and acknowledge the outstanding contribution we just heard from my 
colleague, the member for Clark and shadow attorney-general, Ms Haddad. 
It is inspiring to hear the history of advocacy and activism, of protest, 
heartbreak and ultimately triumph from time to time.

Today is not a time, however, where we can say we have done our best by 
the Tasmanian people. This legislation is missed opportunity. We have 
before us a bill which is the bare minimum reflection of what the people 
of Australia told their parliaments to do last year. They directed the 
federal parliament to make sure marriage was about love, not about a man 
and a woman, and to make sure there was equality in the law. While the 
right-wing conservative forces did everything they could to knock off that 
vote, to muddy the waters and in the process hurt people, ultimately love 
won, as we know. Madam Speaker, I acknowledge your advocacy on this issue 
over many years as lord mayor of the City of Hobart.

It is disappointing to hear the legislation before us - which again was 
tabled two days ago - does not contain the provisions we know need to be 
contained within the Births, Deaths and Marriages Act to ensure the 
legislation does not continue to harm, which it is, and discriminate 
against people on the basis of their gender. It is not a revelation to 
the Attorney-General that there is an issue here. It is disappointing 
that we can have this bill presented to us two days ago for an issue that 
has been a matter of concern to transgender Tasmanians and every fair-
minded Tasmanian for more than two decades. 

I do not understand why the Attorney-General thinks it is a matter that 
needs to be consulted very widely. Who does it affect if, for example, 
there are no gender markers on a birth certificate? Who does it affect if 
we remove the provision that requires a transgender person to undergo 
sexual reassignment surgery? Who it affects by failing to do that is very 
highly vulnerable people who struggle with life because of the legislative 
barriers in place, like the one in the Births, Deaths and Marriage Act, 
because of discrimination and a failure of some people to understand human 
diversity and gender diversity, a resistance and unwillingness to accept 
that gender is not binary, it is not an either/or. 

I too will be moving some amendments and we have been working with the 
fantastic people at Transforming Tasmania. The great education I have had 
in this area of law reform of course has come from people like Rodney 
Croome, champion of Tasmania and living treasure, Martine Delaney, who I 
met many years ago when we were much younger, Ms Haddad, when I was 
working in Duncan Kerr's office. Martine was agitating and trying to 
affect law reform then. 

This is an area of law reform that absolutely must progress. We need to 
acknowledge that by failing in this amendment bill to make those changes 
to the Birth, Deaths and Marriages Act what the Government of the day is 
saying to transgender people is 'We're prepared to let you suffer for a 
bit longer because we're not prepared to look at the evidence of the need 
for reform here. We don't accept, necessarily, that the requirements in 
the Births, Deaths and Marriages Act are discriminatory and we're going to 
ask the people of Tasmania their view on these things.' 

There has been no consultation, for example, over the Macquarie Point 
legislation or the masterplan, so they are not going to ask the people of 
Tasmania about the future of Macquarie Point, but they are going to ask 
the people of Tasmania their views on the birth certificates of 
transgender people. Why that would be a matter of public consultation is 
very difficult to understand.

It has been a really excellent process working cooperatively with 
Transforming Tasmania and Rodney, Robin, Martine, Didi and Ella Haddad on 
the amendments that we have developed to the bill. These are amendments 
which are based on evidence and on the compelling reality that the law as 
it is discriminates against people and harms people. 

I have some notes here from Transforming Tasmania relating specifically to 
the removal of gender references from birth certificates. For anyone in 
this House who is still confused about this evolution of law, I implore 
you to listen:

The inclusion of gender on birth certificates has one effect, and that is 
to perpetuate discrimination against people who are transgender or gender 
diverse. To not remove it is to continue that harm. Parliament should be 
in the business of identifying and removing harmful practice in law. 
Elimination of references to gender from birth certificates follows the 
precedent of removing race from birth certificates and removing parent's 
occupations from birth certificates. Birth certificates are not proof of 
anything other than identity. They are not proof of gender or race or 
parentage.

Transforming Tasmania says to us: 

'Hands up anybody who has been required in recent years to produce their 
birth certificate to prove their gender. Radio silence. Birth 
certificates are not historical documents and are not used for statistical 
or genealogical purposes. Look at our driver's licences. There is no 
reference to gender to be found. 

The current international human rights position from the United Nations 
and other international human rights organisations is to exclude 
references to gender from birth certificates. For many years the only use 
of gender on birth certificates was to prevent same-sex marriage so there 
is no justification for continuing it for this purpose. This is not about 
getting rid of gender or denying gender or deleting gender. Just as 
removing race from birth certificates has not resulted in the elimination 
of racial diversity, this is about recognising everyone's gender.

Gender markers on passports in a number of jurisdictions, including many 
parts of Australia, are male, female and X. This was introduced in 2011 
when it matched international practice, so our national law recognises 
gender diversity, but Tasmania is lagging behind even this outdated 
provision which provides for three gender options.

Members of parliament would have received this week a submission from an 
organisation that calls itself Women Speak Tasmania. I have seen these 
arguments put before by women or women's representatives who feel 
threatened by transgender women. 

There are women, and this organisation that calls itself Women Speak 
Tasmania holds this view, who discriminate against transgender women and 
have made a submission to members of parliament based on their view that 
somehow transgender women threaten women. Transgender women are women. 
What is going on here, what happened to the sisterhood?

Mr Hidding - Are these the people who laid a complaint against Robin Banks?

Ms O'CONNOR - Yes, one of them is.

Ms Archer - Interesting interjection, Mr Hidding.

Ms O'CONNOR - Again, it is so potentially damaging to have women 
discriminating against other women, putting up more barriers to their 
equal treatment under the law, describing other women as being a threat. 
I do not understand these arguments at a profound level. They do not 
stack up. What they come home to are women who do not regard all women as 
being equal. Shame.

The issues that were raised by this organisation which I have not heard of 
before, Women Speak Tasmania, suggested that there is a safety risk to 
women and girls posed by transgender women. Transforming Tasmania's 
response to the question of safety is this -

Men who are seeking to pray on women or girls in women's spaces, do not 
dress up as women to go to the trouble of getting a new birth certificate, 
they simply do it.

There is no evidence of men changing their gender in order to attack women 
or invade safe women's spaces.

Ms Haddad - That is right. They attack women anyway.

Ms O'CONNOR - That is right. 

However, the rise of these arguments has resulted in greater danger, 
including physical assaults to transgender women, non-binary and women who 
do not conform to out-moded stereotypes of femininity. This has included 
women in toilets abusing and attacking trans women, non-binary women and 
women who do not conform to gender stereotypes.

I simply urge the authors of the submission that was made to members of 
Parliament to engage in a meaningful way with Transforming Tasmania. The 
more we talk to each other, whatever our differences of understanding may 
be, the better the chance of achieving good outcomes for all.

If Women Speak Tasmania has formed the view that not all women are equal, 
then Women Speak Tasmania, Bronwyn Williams, Isla MacGregor, should seek a 
meeting with transgender women, Transforming Tasmania, look each other in 
the eye, identify the differences of understanding. I would like to think 
that if the people who are behind Women Speak Tasmania sat down with 
transgender women, they would not hold the view that not all women are 
equal.

Ms Standen - It is fear and ignorance.

Ms O'CONNOR - It is fear and ignorance and it is sad, Ms Standen, that 
women who have had to fight so hard for equality, to feel safe, which not 
all women do, that women would do this to other women. I find that really 
sad.

I encourage Women Speak Tasmania to engage in that conversation. We are 
talking about an evolution of law. It is an evolution of law that relates 
to marriage, significant relationships and gender. I want to acknowledge 
that the first parliament to have no forced divorce legislation tabled in 
it was the Tasmanian Parliament. It was the then Greens shadow attorney-
general, Nick McKim, who tabled that bill. He had another crack at it in 
the last term before he went to the Senate. There is a delicious irony in 
knowing that the bill is being forced on a conservative government by the 
vote of the people of Australia.

Ms Haddad outlined some of the history, as a result of the Greens advocacy 
in this area. It was Christine Milne's legislation in 1997 that 
decriminalised homosexuality in 1998. We had landmark anti-discrimination 
legislation. I indicate to the Attorney-General that we do not see the 
argument for making this specific provision in the Anti-Discrimination Act
. We are prepared to name it for what it is. It is a sop to the 
religious right, because the Anti-Discrimination Act has worked 
effectively until now. There is no legal reason to put this new 52A into 
the Anti-Discrimination Act of 1998. The law functioned before. It is 
not standard that all the provisions in a federal legislative reform are 
reflected in state law. In fact this is unusual. It is a reflection of 
the fact that there are some in Government who regard same sex couples as 
a unique threat to marriage. That would be the conclusion the draw, and 
that is highly regrettable. 

Our parliament decriminalised cross-dressing in 2000. This is the 
provision that was in the Police Offences Act that we were debating last 
night during our bill to remove the crime of begging. That Police 
Offences Act provision captured transgender women because it was 
transgender women who were charged with the crime of cross-dressing. I 
want to acknowledge the reform of the former attorney-general, Vanessa 
Goodwin, in expunging past convictions. It was a really significant 
legislative reform because it meant that women who were captured by the 
law and described in grotesquely insulting ways did not have that 
conviction attached to them, or they can have conviction removed.

We were the first state to have marriage equality legislation tabled. 
Again that was Nick McKim's legislation. He tabled that legislation I 
believe in this parliament twice and both times could not get support of 
either of the major parties in this place. Then in 2013, Nick McKim and 
the then premier, Lara Giddings, co-sponsored the marriage equality bill. 
We were the first parliament in Australia to pass marriage equality 
legislation. Then in late 2016 we were the first state to have both 
Houses give their in-principle support for marriage equality. We are a 
big-hearted and progressive state. You saw that in the plebiscite. Did 
it not make us all proud, wasn't that wonderful? That is who we really 
are. Here in our beautiful electorate of Clark, close to three quarters 
of all citizens of Clark eligible to vote supported love and the right to 
equal marriage. 

Ms O'Byrne - Hear, hear. Good on them. They were the citizens of Denison 
then.

Ms O'CONNOR - They were then, Bass, too, and all over the state. Braddon 
voted strongly. Interestingly, the vote I loved the most apart from our 
own Tasmanian progressiveness was in Tony Abbott's seat where more than 
75 per cent of all his constituents said, Tony, you are wrong, you old 
bigot. That was a very good result.

We have been working on the amendments we will be moving in this 
legislation. Ms Haddad and I have talked through the amendments we would 
each like to move. I look forward to going into the committee of this 
legislation and being able to talk through some of these amendments. 

This legislation is a start. It is the bare minimum of this parliament's 
response to the people of Australia saying we believe in love and we 
believe in equality. There is much more work to do on the Births, Deaths 
and Marriages Act to make sure we are treating every Tasmanian equally, 
that we are not boxing people by outdated notions of gender and that we 
are not requiring transgender people to undergo invasive reproductive 
surgery in order to have their birth certificates altered. It is 
unaffordable and out of reach for some people to have that surgery. Why 
should people have a hysterectomy if they do not wish to but they know 
they are a man? I know this is very confusing to some of the 
conservatives in here. I know that. It is hard to wrap your head around 
and I was not pointing at you at all. My hand was slightly higher up 
above the Attorney-General. 

There is a lot to talk about in the Committee stage of this legislation. 
I commend any member of this place who has an issue to engage with 
Transforming Tasmania and talk to people who are affected by the 
discrimination that exists in our laws today. We will be having more to 
say in the committee stage.