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

Parliamentary Activity - Thursday, 18 October 2018, Cassy O'Connor MP


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.