Thursday 21 March 2019
Hansard of the Legislative Council

JUSTICE AND RELATED LEGISLATION
(MARRIAGE AMENDMENTS) BILL 2018 (No. 47)
Second Reading

Mr FINCH (Rosevears) - Mr President, the bill before us started off as an additional simple amendment to allow individuals and parents of children who wish to live as a gender different to their sex at birth the option of having either the correct gender or having no reference to their gender on their birth certificate without the need for invasive surgery, and to allow more time for parents who had doubts about the sex of their newborn child to register the birth and choose whether to have the reference to it on the birth certificate.  So simple and seemingly without controversy.  To my mind, the amendment would help those with gender uncertainty as they grow up to avoid some of the pain of that uncertainty.  I am adamantly dedicated to that aim.

Unfortunately, these amendments have attracted the ire of people in our community and a long, controversial argument has entailed.  As always on controversial issues I have looked carefully at the arguments.  I have taken pains to evaluate their validity.  Many arguments against this bill are furphies, red herrings at the very least.

Mr Dean - Does that go for those supporting it as well - red herrings?

Mr FINCH - When the member for Windermere mumbles, I cannot hear a thing he is saying.  He did that while the member for Murchison was trying to speak.  She is right; it is very disrespectful.  If you have something to say, speak up so we can hear what the hell you are saying.

Mr Dean - I thought I made it clear.

Mr FINCH - Go on, what did you say?

Mr Dean - I said what I said.

Mr FINCH - Speak up.

Mr PRESIDENT - This is not a game.

Mr FINCH - This is what the member for Windermere is turning it into, with this mumbling that goes on.  You have spoken to him about it, but he keeps going on with interjections.

Mr PRESIDENT - We will keep our eye on the ball and continue.

Mr FINCH - Thanks very much.  It is disrespectful and it is off-putting when you try to present your arguments.

At this stage, I want to refer to the full-page advertisement funded by the Catholic Church on Tuesday.  Most of you will have seen that.  The advertisement claimed that this bill would compromise the integrity of people's identity, have serious implications for children's and women's safety, and make it difficult to get a passport.

I cannot for the life of me see the implications for children's and women's safety.  Do those who funded and framed this advertisement think Tasmanians are not in touch with reality? 

I want to read a letter all members received.  I am sorry if I have gazumped anyone by reading this into Hansard ahead of them.  We received so much information, and there are so many useful quotes I could read in, but I am not going to labour the point.

I want to read this one in response to that advertisement -

I apologise for including you in one email. 

I am alarmed that a group called the 'Tasmanian Coalition for Kids' has been formed to lobby the Upper House on amendments to the Births, Deaths and Marriages Registration Act that would make gender optional on birth certificates in Tasmania. 

I am writing to you to urge you to support the Bill. 

I note, too, that the Catholic Archdiocese of Hobart has contributed to a newspaper advertisement, placed in the Media this week, that supports the lobby group mentioned above.

While the Archdiocese has a right to its point of view on religious grounds, I find it curious that in a statement, it does not mention an objection in that sphere but on the grounds of what it perceives as 'public concern'. 

My concern is for anyone who is transgender and not for the perceived reasons expressed by the Church and groups acting against the well-being of transgender people.

Not that it should make a difference, but I am a Catholic and I am also concerned that, rightly or wrongly, the message being sent to parents with transgender children in Catholic schools, is that their child is somehow inferior, somehow wrong and somehow a freak.  A child who is not given the right to be who they are, as is every other child, must be unbearable.  I can only imagine how those parents and children feel.  They need community support not condemnation. 

Respectfully,
Jeff Kevin

I phoned Jeff and asked if I could use his name and put this in Hansard and he agreed.

I spoke of red herrings earlier and some of these need to be addressed.  To be charitable, you could term some of them misconceptions or ignorance, because, like me, people have not had to embrace the issue before.  Most people have not had to think about our transgender community.  It has been asserted birth certificates are an historical document and are needed for genealogy.  Birth documents and birth certificates are not historical documents.  They are identity documents.  Historical records are preserved by the registrar and will continue to be preserved under the amendments as described in section 28A(1).  Genealogical and historical needs are met by the notification of birth and registration of birth forms rather than by birth certificates.

Another red herring:  doctors and medical professionals will not be able to do their jobs.  Medical practitioners do not use birth certificates in any way.  Any sex-specific risk factors are determined in conversation with the individual and through medical histories.

Another criticism is the term sex and gender are used interchangeably and inconsistently in the bill.  Sex and gender are distinct terms used carefully and specifically.  The definition of gender created in the amendment, which includes the apparent sex of an infant at birth, ensures most individuals who do not eventuate to be transgender, gender diverse or intersex and will therefore have no reason to complete a gender affirmation declaration and will be unaffected.  This definition also ensures the historical birth-sex data will be available to meet statistical and date-linkage requirements, if needed.

I could continue, Mr President, but I assume you and other members are sick of the red herrings.
I remain firmly supportive of the principles of this bill and what it is intended to achieve and I want to detail some of the reasons for my position.

Some opponents of this bill argue this House should be spending its time on what they say are more important issues like the economy.  I agree, but those same opponents have been mounting a campaign to make what are simple amendments into an issue which they feel could cause the sky to fall in.

Also, I might point out at this stage, we do not run the agenda of the legislation here.  We were getting the blame for this issue coming to the upper House.  It is not of our making; it has come from downstairs.  It might not be the normal process we are used to, but we do not call the shots on what legislation we do, unless it is a private member's bill, so this is not of our doing.  It is our work to try to fix up what has come before us.

In my 17 years in this House, I have striven for justice for human rights and to minimimalise potential hurt to individuals who feel they are different from the overall society, and that, of course, includes issues like marriage equality.  This bill is right in there.  Perhaps I should start this argument with a question:  why should our society tell individuals how they should feel about their gender?

Obviously, this bill will have positive impact on transgender, intersex and gender-diverse communities.  Yes, they are perhaps a small minority.  I have heard one in a 1000 at one stage, but then it is blown out to one in 1500, to one in 2000.  It is a small minority, but their feelings are their interactions with the whole community and are concerns we must address.

Apart from allowing parents to decide whether to have a child's gender recorded by the registrar on the child's birth certificate, there was also provision to amend identification documents to reflect the person's lived gender without the need for gender reassignment surgery.

I want to digress by mentioning the situation in Spain, a country which we sometimes perceive as very conservative in these matters.  Spain had marriage equality years before we did.  The current situation with sex recorded on birth certificates:  it is recorded on birth certificates, but as soon as an individual is eligible for an identity document, they have the option of putting on it whatever they feel their gender is.
Germany, since 2013, has allowed a blank space denoting gender on birth certificates for babies born with undefined sex characteristics.  Since 2017, people have been allowed to register as intersex or identify as something other than male or female, or eliminate sex identification entirely. 

Many of us, until recently, had been ignorant of nuances concerning gender, but I want to quote now a few passages from a documentary by Katie Couric.  I am going to paraphrase.  Katie Couric is a journalist I have long admired, probably for 30 years.  She has worked on American television networks and in mainstream television.  She was curious about the transgender world and she went out to explore around America.  During the documentary she said that so much has changed in a short period of time.  It is being treated as a lot more complicated in a brave new world and will take some getting used to.

Society gets happier and more creative.  Some people will be more comfortable in their own skin. This represents a move towards acceptance.  External genitalia does not dictate your gender.  It does correlate but not for everyone.

Views are changing.  Parents make a lot of decisions in this binary world. However, young people should have the right to make their own decisions about their bodies.  Transgender means denoting or relating to a person whose sense of personal identity does not correspond with the gender assigned to them at birth.  For transgender children, puberty is stressful; it causes anxiety.  They have to deal with puberty blockers, which is the pause button.  This is a new area.  The blockers are relatively safe and reversible and hold maturation for a couple of years for that long‑term decision.

Then comes the hormonal therapy of testosterone, the female to male and estrogen for male to female.  Katie gave me some succinct observations in that documentary.

An important part of this bill is that it would amend the Anti-Discrimination Act 1998 to include a new definition of gender expression and to correct a drafting error that leaves transgender Tasmanians without protection from incitement to hatred.  Why the hell not?

While we are looking at international issues, it is worth noting that refusing to allow a married person to have a birth certificate consistent with their sex, unless they get a divorce, is breaching the International Covenant on Civil and Political Rights.  Australia had been called on to revise its legislation to ensure compliance with that covenant.

Australia has been internationally criticised for failure to uphold the human rights of LGBTI people and protect them against abuses such as violence and discriminatory laws and practices.

I quote a principle agreed to at a meeting in Switzerland in 2017. This resonated for me -

Everyone has the right to legal recognition without reference to, or requiring assignment or disclosure of, sex, gender, sexual orientation, gender identity, gender expression or sex characteristics.  Everyone has the right to obtain identity documents, including birth certificates, regardless of sexual orientation, gender identity, gender expression or sex characteristics.  Everyone has the right to change gendered information in such documents while gendered information is included in them.

The idea that gender is not limited only to male and female is by no means new.  Many cultures have long recognised third genders or other gender variances.  This could include some interesting identities.  Most of you have not heard these pronunciations so I can proceed in the full knowledge that nobody will dispute what I say:  hijra, meti, lala, skesana, motsoalle, mithli, kuchu, kawein, travesty, muxé, fa'afafine, fakaleiti, hamjensgara and two-spirit.  It is important to note the impact of colonialism on the prior social, medical and legal construction of gender and the consequent erasing of non-binary genders.

We have had the experience of twinning with Samoa which I have visited three times.  They recognise a third sex, which has an important place in their society.

I go to the work of Dr Paul Vasey, an anthropologist who has studied the fa'afafine, as they are called in Samoa.  They have always existed in Samoa.  These are feminine, same sex-attracted men.  They are fully integrated into Samoan life and they are clearly not binary.  This also occurs in India and Mexico; in classical Jewish texts, there are six genders.  These are socially unproblematic.

Mr Dean - I think there are seven genders in America.

Mr FINCH - Yes, that is right and it is a pathway down which we should go.  These people are integrated into society.  The family ends up benefitting and society ends up benefitting so the fa'afafine in Samoa have a role to play within the family and are the third gender of Samoa.

It is obvious intersex people who are born with physical sex characteristics that do not fit medical norms for female and male bodies are adversely impacted by the requirement their birth certificate include gender.  Insisting on the inclusion of gender on birth certificates perpetuates the view that intersex children ought to conform with a gender determined by parents or medical practitioners.  This perpetuates the tendency towards the common practice of subjecting intersex children to unnecessary surgical and other procedures.  It is patently obvious parents will still be able to have gender included on their child's birth certificate if they want, and most will.

The act currently requires a person seeking to apply to the registrar to change their sex to have undergone gender reassignment surgery and be unmarried.  In order to make an application under section 28A of the act, an applicant must also provide, among other things, a statutory declaration from each of two medical practitioners verifying the applicant has undergone gender reassignment surgery.  That is absurd.  I have spoken with a number of people who describe themselves as transgender or binary and apart from suffering ignorant social attitudes, they cite access to birth certificates, passports and identification documents that reflect lived gender as barriers to employment, housing and access to services.  The requirement that transgender Tasmanians undergo gender reassignment surgery to apply to change their identification documents is an abusive requirement, as I referred to earlier.

A few of us in the Chamber have come across people who are not distinctly male or female as our society understands, but let us understand the other genders so we can make their lives easier.  We have heard evidence about the number of suicides in the trans community.  Fifty per cent have attempted suicide or have actually committed suicide.  That figure is astounding.  Imagine the mental trauma and the torture those people have gone through to get to a situation of contemplating suicide because of who they are.

Intersex people are born with physical or biological sex characteristics such as sexual anatomy, reproductive organs, hormonal patterns and/or chromosomal pattern more diverse than socially understood concepts of male or female bodies.  For some people these physical traits are apparent prenatally or at birth, while for others they emerge later in life.  However, greater education is required as to the prevalence of intersex persons in our community and respecting their rights as both adults and children.  They are part of our community and should be recognised, cared for and considered.  That is why I support this bill wholeheartedly.  I recognise the arguments of those who oppose it, but feel they are exhibiting cruelty to people in our Tasmanian community in contrast to what should be understanding and inclusion.

Mr Dean - What do you mean?

Mr FINCH - Do you want to know the meaning of the word 'cruelty'?  Do you know the meaning of it?  What are you interrupting now for?  I was just finishing. 

Mr Dean - Are you saying those who are exhibiting opposition to this are showing cruelty?

Mr FINCH - Yes, I will read it again just so you have it nice and clear in your mind.

Mr Dean - That is appalling.

Mr FINCH - Here we go -

Try being born transgender and trying to exist your life as transgender and the stuff that we have been going on with and that we have received, try to understand whether it is cruel or not. 
I can tell you do not understand it because you da, da, da, da, but it is cruel.